KANDEL (Migration)

[2019] AATA 6049

KANDEL (Migration) [2019] AATA 6049 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUDIP KANDEL

CASE NUMBER:  1727062

HOME AFFAIRS REFERENCE(S):           BCC2017/3517875

MEMBER:Peter Booth

DATE:3 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 03 October 2019 at 5:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – return to home country for surgery – unable to study because of pain – no medical treatment or evidence – no request for deferral or special consideration – enrolled in another course after receiving notice of intention to consider cancelation of visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 2 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.The applicant appeared before the Tribunal on 30 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4.The applicant was represented in relation to the review by his registered migration agent.

5.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6.The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116 (1) of the Act, the visa may be cancelled.

Did the applicant comply with Condition 8202?

7.Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

8.In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9.The applicant gave evidence at the hearing the substance of which was as follows. The applicant had read and understood the decision of the delegate dated 2 November 2017.The applicant affirmed the correctness of the delegate’s finding that he was not enrolled in a registered course of study from 21 April 2017.

10.On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

11.Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

12.The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

·The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

The applicant gave evidence that he arrived in Australia on 2 September 2015 as the holder of a Subclass 573 (Student) visa. He intended to study ‘Information Technology’. The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia.

·The extent of compliance with visa conditions

The applicant affirmed that he had not been enrolled in a registered course of study from 21 April 2017 at the time of the delegate’s decision and cancelling his student visa and which was made on 2 November 2017.

·Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

The applicant arrived in Australia on 2 September 2015 as the holder of a Subclass 573 (Student) visa. He intended to study a Diploma of Information Technology “leading to a Bachelor of Information Technology”. He said that the first of those courses commenced in September 2015 but he did not complete it. He said that he attended classes in the first semester and that about “in the middle” of the second semester he could not continue “due to ill health”. The applicant said that he had a “kidney stone” and that he visited a general practitioner and a medical specialist. He was advised that he needed to undergo urgent surgery and determined that he should return to Nepal for that purpose. The applicant gave evidence that he received this advice on 18 May 2016 and that he returned to Nepal on 24 May 2016.

He said that he attended classes up to 24 May 2016 and that he had informed the course provider of his health condition. The applicant said that he had asked for a deferral of his study and that, indeed, he was granted such a deferral. He said that the deferral was in writing and that it was for “the next semester” which he later clarified to be “until August or September 2016”. The applicant said, in response to a question from the Tribunal, that he had copies of documents relevant to the deferral and that he would provide them by the close of business on 30 September 2019.

The applicant said that he underwent surgery in Nepal on 29 May 2016 which involved the removal of a “kidney stone”. Thereafter he was in hospital for a period of “two or three weeks”.  He provided a discharge certificate from Asha Hospital which he said demonstrated his discharge. The certificate is in illegible handwriting and uses unusual dates which the applicant informed the Tribunal was the “Nepalese calendar”. The Tribunal accepts that the applicant underwent surgery in Nepal for a kidney stone, and was discharged on or about 29 May 2016, notwithstanding the unhelpful nature of the discharge certificate.

The applicant returned to Australia on 9 August 2016 having been in Nepal for “about two and a half months”.  He said that he did not continue with the Diploma of Information Technology and that he had been to “a few” classes. In answer to a question from the Tribunal he said that he was required to re-enrol in the course in about September 2016 but he did not do so. When asked why he did not re-enrol, the applicant said he was still recovering from the surgery and “could not sit for long”. He added that he was “taking bed rest”. In answer to a further question from the Tribunal, he said that he had asked the course provider for a “release letter” but that the course provider had refused to provide such a document. In answer to a question from the Tribunal, he says that the correspondence relating to this event are in his possession and that he would provide them by the close of business on 30 September 2019. The Tribunal enquired whether he also asked for a deferral of the course from the course provider, to which he said that he did not. The Tribunal enquired why he had not sought a deferral to which he said “I don’t know”.

The applicant informed the Tribunal that thereafter he “went to another college –Holmes Institute”.  Apparently he enrolled in a Bachelor of Accounting course due to commence on 7 November 2016 and to be completed by 31 July 2019. When asked why he had changed his course direction from information technology to accounting, the applicant informed the Tribunal that he “could not sit for long” and that this was required for the information technology course and that he thought the accounting course “would be a better option”. In answer to a question from the Tribunal, he said that he did not consider that accountants needed to “sit for as long”.

The Tribunal enquired whether, after he returned from the Nepal, he sought medical assistance to which the applicant responded that he did not. The Tribunal informed the applicant that was curious if he was in such pain that he was unable to attend classes, he did not seek any medical assistance. The applicant said that he “did not think anything”. In answer to a question from the Tribunal he said that he was in pain especially when he was sitting. In response to a further enquiry from the Tribunal he said that he was not taking any medication for the pain. The Tribunal informed the applicant that this also seemed quite curious if he was in such pain that he was unable to study but was not taking any medication. He said that he “thought bedrest was better” and then the pain was only when “he was walking for a long distance or sitting”. He added that he was “drinking a lot of water”. In answer to a question from the Tribunal he said that he was able to sit for periods of about “two hours”.

He said that he attended the classes in the Bachelor of Accounting course after November 2016 but not regularly. He said “went in the beginning” but then he was in pain again. The Tribunal enquired how long this period of pain persisted to which he replied “the pain still continues”. The Tribunal enquired whether he had obtained any medical assistance after November 2016. The applicant responded that he did not at the time “but recently has had severe pain”. The applicant then volunteered that he was taking medication from Nepal. The Tribunal pointed out this was inconsistent with his earlier answers to the effect that he was taking no medication. He said that he had a “strip” of medication from Nepal.

In answer to question from the Tribunal the applicant said that he abandoned the Bachelor of Accounting course in “the second semester, February 2017”. In answer to a further question from the Tribunal he said that he had failed all the subjects in the first semester of the Bachelor of Accounting course. When asked why he felt the subjects he said that he did not attend the classes. The Tribunal enquired whether he sought a deferral or special consideration from the course provider to which the applicant said that he did not. The applicant said he did not enrol in the second semester of the Bachelor of Accounting course. Apparently this was due to start in “February or March 2017”. In answer to question from the Tribunal he said that from November 2016 to February or March 2017 he was unable to attend classes regularly because of pain associated with his medical condition. However in response to a question from the Tribunal he said that he had not sought or obtained medical advice or assistance during the period. The Tribunal enquired whether he was taking any pain medication. He said that he had “one strip of medicine from Nepal” and he took the pills “only when required”. He said that he had “10 or 12” pills but that he had none left currently. The Tribunal informed the applicant that his explanation for not attending classes was unconvincing having regard to his evidence that he did not obtain any medical assistance or obtain any medication for pain relief other than the “strip” of medicine from Nepal. This was made more curious because the applicant took no steps to defer the Bachelor of Accounting course. The applicant was invited to respond to the Tribunal’s concerns. The applicant did not provide any substantive response.

The applicant said that he received a Notice of Intention to cancel his student visa on 25 October 2017. The Tribunal enquired what he had done between February or March 2017 and 25 October 2017. The applicant said he was not engaged in this study and not enrolled in any course during that period. In answer to a question from the Tribunal he said that he had not obtained any medical advice during that period. He added that he was not in pain and but was still undergoing “bed rest”.

The applicant enrolled in a Diploma of Business on 14 October 2019.  However in response to a question from the Tribunal said that this was not the first course that he had enrolled in since abandoning the Bachelor of Accounting course. He said, in response to a further question from the Tribunal, that he had enrolled in “a Diploma and Advanced Diploma in Accounting” to be conducted between 11 June 2017 and 27 January 2019. The Tribunal enquired whether he attended any classes to which he said “I did at the beginning”. He said that he continued attending classes “for a whole year” but that he did not pass any subjects. He said that he did not complete the course. The Tribunal enquired why he did not complete the course to which he said there were “many reasons” and went on to refer to several – he was trying to return to Nepal, he could not get a travel visa, he was frustrated because of that, he could not attend the funeral of his great-grandmother and he was disturbed by that. He said that these factors meant that he could not study. He said that he abandoned the Diploma of Accounting “after the first year” and that he did not complete either of the two courses. In answer to question from the Tribunal he said that he did not seek a deferral of the course from the course provider. The Tribunal enquired whether the medical condition he had earlier described was the reason for him not completing these courses. In answer to that he said “I was better” and added “the kidney stone was getting better but mentally I was not recovered”. He said that he received the notice of intention to cancel the visa and that he “got guidance”. The Tribunal enquired whether he responded to the Department once he received a Notice of Intention to cancel the visa. He said that he did not. He said that he thought he had 21 days to reply because others had told him this was the case.

The applicant produced a Confirmation of Enrolment in a Diploma of Business course due to commence on 14 October 2019 to and to be completed by 11 October 2020. In answer to a question from the Tribunal he said that he enrolled in this course “about 15 or 20 days ago”. The Tribunal enquired would he had done from June 2018 until he enrolled in the current course “about 15 or 20 days ago”. He said that he was “homesick” because he could not travel. The Tribunal enquired what had changed about “15 or 20 days ago”. He said he thought it “I needed to improve my situation and to continue study”. The Tribunal enquired whether the decision to enrol in the current course was motivated by the impending hearing of the application for review. The applicant said that it was not. The Tribunal informed the applicant that the timing of the new enrolment was curious and did not seem coincidental. The applicant was invited to comment. He said “it might be a coincidence”.

The applicant was informed that the Tribunal had read the migration agent’s written submissions dated 28 September 2019 and that they would be taken into account.

The Tribunal also referred the applicant to the medical imaging report dated 28 August 2019 (attached to the migration agent’s submission) and he was invited to comment upon that document or the underlying events. The applicant said he had a “kidney problem” and that it was in the “same place as the operation before” and that he was in “unbearable” pain. He went to the general practitioner and there were some investigations undertaken. The medical imaging report apparently is a record of one such investigation. The report is in highly technical language and not of any assistance to the Tribunal. It is not in the form of medical opinion evidence which the Tribunal can consider. It is given little weight.

After the hearing the applicant provided several documents to the Tribunal as follows:

a.     First, an email dated 7 July 2016 from his course provider, apparently, which granted a deferral until 10 October 2016.

b.     Secondly an email from “[email protected]”, apparently a representative of his course provider. The substance of the email was a response to the applicant’s request for a ‘release’, in so doing the applicant was referred to another area, the ‘student centre’.

The Tribunal is satisfied that the applicant was granted a deferral of this course until 10 October 2016. There is no document confirming the refusal from the course provider of a ‘release letter’.

The Tribunal accepts that the applicant had a serious kidney complaint requiring surgery in May 2017.  Further that this was an ongoing complaint which persists to some degree. However the Tribunal does not accept that this is the matter beyond the applicant’s control which prevented him from studying. There are several reasons for this. First he provided no medical opinion evidence to that effect. Secondly, he did not seek medical advice or treatment in the relevant period. Thirdly he did not, save for the first deferral, seek deferral or special consideration in relation to any course of study. The applicant did not take any steps which one might expect from a person intending on trying to study whilst enduring a period of illness. This is most unusual in the view of the Tribunal. The Tribunal does not accept that the applicant’s medical condition was such that he could not attend classes or otherwise participate in the courses. In all the circumstances the Tribunal is not convinced that the failure to be enrolled was as a result of matters beyond the applicant’s control.

·Past and present behaviour of the visa holder towards the Department

There was no evidence in relation to this factor and the Tribunal gives it no weight.

·Whether there would be consequential cancellations under s.140

The Tribunal was provided with no evidence on this point and gives it little weight.

·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

·Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

There was no evidence in relation to this factor and the Tribunal gives it no weight.

·If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

There was no evidence in relation to this factor and the Tribunal gives it no weight.

·Any other relevant matters.

There was no evidence of any other matters and the Tribunal gives this factor no weight.

13.Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

14.The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Peter Booth
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2)A holder meets the requirements of this subclause if:

(a)the holder is enrolled in a registered course; or

(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

(3)A holder meets the requirements of this subclause if neither of the following applies:

(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i)section 19 of the Education Services for Overseas Students Act 2000; and

(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i)section 19 of the Education Services for Overseas Students Act 2000; and

(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.