Kandel (Migration)

[2019] AATA 6713

Kandel (Migration) [2019] AATA 6713 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nirmal Kandel

CASE NUMBER:  1720666

HOME AFFAIRS REFERENCE(S):          BCC2017/2286802

MEMBER:Peter Haag

DATE:1 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2019 at 1:26pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of travel and stay – extent of compliance – circumstances giving rise to non-enrolment – earthquake in Nepal – financial difficulties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the delegate was satisfied the visa holder has not complied with his visa condition 8202 in that he failed to maintain his enrolment in a registered course of study. Consequently the delegate was satisfied of the existence of a ground for cancellation of the applicant’s visa under s.116(1)(b) of the Act. 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 26 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Saraj Sharma, the applicant’s education agent.

4. 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

5. 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?    

6. 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)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

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

7. In the present case, the applicant’s visa was granted on 20 October 2016; the visa was cancelled on 16 October 2017 on the basis the applicant was not enrolled in a registered course.

8. The applicant in response to the Notice of Intention to Consider Cancellation (NOICC) of Student (Temporary) (class TU) Student (subclass 500) visa under s.116 (General Power) of the Act , dated 2 August 2017, informed the Department on 9 August 2017 that he was aware his enrolment was cancelled by his education provider and because of that fact he was in breach of his visa condition to maintain enrolment in a registered course of study[1]. The delegate acted on this admission, combined with other relevant evidence, and concluded the applicant failed to maintain enrolment in a registered course and on that ground cancelled the visa.

   [1] Department file, folio 13

9. On the evidence before the Tribunal, the applicant failed to maintain enrolment in a registered course, a condition of his visa, and that fact existed at the time the delegate made her decision. Accordingly, the applicant failed to comply with visa condition 8202(2)(a); consequently, the Tribunal is satisfied the ground for cancellation is made out.

   Consideration of the discretion to cancel the visa

10. 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 the 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’.

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

11. The purpose for which the applicant travelled to and stayed in Australia was to undertake studies in a registered course of study. The applicant was granted the visa now under consideration, on 26 October 2016[2] when he was already in Australia. The visa was granted for the purpose of enabling the applicant to undertake an approved Higher Education level course of study, including the Master of Professional Accounting and Master of Business Administration. The applicant remained in Australia after his visa was cancelled by the delegate on 16 August 2017. According to the evidence, and inconsistently with the study purpose for which the applicant was staying in Australia, from the time of cancellation of his enrolment in October 2016, shortly after the visa was granted, the applicant has not been enrolled in a registered course of study.

    [2] Tribunal file, folio 5: decision of the delgate

12. The applicant continued living in Australia after his Student visa was cancelled, because he wished to continue studying in Australia, and he did not want to suffer the humiliation of facing his parents after he failed to obtain the qualifications. The applicant claims to have engaged with the education provider about his inability to pay his academic fees – the reason for which his enrolment was cancelled – seeking reinstatement of the cancelled enrolment. Having considered the purpose for which the applicant travelled to and is staying in Australia; the applicant’s failure to maintain his enrolment in a registered course of study after the visa was granted; and, the applicant’s reasons for remaining in Australia after his enrolment was cancelled, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. Further, the Tribunal is satisfied on the whole of the evidence relevant to this consideration that this consideration weighs in favour of cancellation of the visa.

    The extent of compliance with these conditions

13. The visa was granted to the applicant on 26 October 2016 to enable him to study a package of two courses at the Higher Education level. According to the delegate’s decision, a copy of which the applicant provided to the Tribunal, the applicant has not been enrolled in a registered course of study since 27 October 2016. The applicant did not dispute this fact. As the Tribunal understands the applicant’s evidence he claims that six subjects remain for him to complete in the course Master’s degree in accountancy. This claim is easily made; however, it was unverified by reasonable evidence in support of the claim, such as an academic transcript of subjects successfully completed. It is reasonable to expect the applicant to provide evidence in support of a claim relevant to the extent of his compliance with his visa condition to maintain enrolment in a registered course of study; he is in the best position to provide that evidence. He did not do so. In the absence of evidence confirmatory of the applicant’s claim in respect to his academic progress, the Tribunal attaches little weight to his claim in favour of the applicant. The foregoing circumstances, including the limited extent to which the applicant complied with the visa condition that he maintains enrolment in a registered course of study, - the visa was granted on 26 October 2016, and the applicant has not been enrolled in a registered course of study since 27 October 2016 - satisfy the Tribunal that this consideration weights in favour of cancellation of the visa.

    Degree of hardship that may be caused to the visa holder and his family members

14. Cancellation of the applicant’s visa will no doubt cause disappointment and emotional upset to the applicant and his parents. The Tribunal accepts the applicant and his parents expended what was to them, a significant amount of money for the purpose of the applicant travelling to and staying in Australia. According to the evidence given to the Tribunal by the applicant’s witness Saraj Sharma, an employee of the applicant’s education agent, the applicant forwarded $3500 to the course provider on 12 August 2016; $4,200 to the course provider on 24 March 2017; and $3650 to the course provider in 27July 2017.  Mr Sharma’s evidence was consistent with the content of text messages the applicant provided to the Tribunal[3]. The text messages indicate those payments were used to pay a debt for unpaid course fees.  The text messaged indicates the education provider claimed that, as of the 2 August 2017, the date of the text message, the applicant owned moneys to the provider.

    [3] Tribunal file, folio 33 – 35

15. The Tribunal is satisfied the applicant and his family may be caused financial loss and hardship by cancellation of the visa, however, the evidence does not demonstrate the applicant and his family would suffer such a degree of financial loss and hardship that this consideration, for that reason, weighs either in favour of or against cancellation of the visa.

16. The applicant claims that he feels stressed and fears depression[4] caused by the cancellation of his visa. The applicant has not provided evidence that stress and fear of depression experienced after the delegate cancelled the visa, prevented the applicant from going about his day-to-day life in Australia. The applicant has provided no evidence of receiving counselling or other medical treatment for a psychological or emotional state. Consequently, the Tribunal is not satisfied the applicant may suffer psychologically or emotionally due to cancellation of the visa, to such a degree that those considerations weigh either in favour of or against cancellation of the visa. 

    [4] Tribunal file, folio 39

17. The Tribunal accepts the applicant and his family may suffer disappointment and embarrassment if the applicant’s visa is cancelled. The evidence before the Tribunal does not demonstrate such a degree of disappointment and embarrassment that the Tribunal is satisfied this circumstance weighs against cancellation of the visa.

18. The foregoing circumstances considered in relation to the degree of hardship that may be caused to the visa holder and his family by cancellation of the visa, have been considered as a whole; they weigh neither in favour of nor against cancellation of the visa; consequently, the Tribunal gives neutral weight to this consideration in this decision.

    Circumstances in which the ground for cancellation arose

19. According to the delegate’s decision, the applicant was granted the Student visa onshore on 20 October 2016; the applicant’s last day of study was 21 October 2016; his enrolment was cancelled in October 2016; and the visa was due to expire in the ordinary course of events on 30 September 2017.

20. The applicant gave evidence to the Tribunal that he and his family in Nepal were suffering financial hardship caused by an earthquake in Nepal in April 2015. Consequently, the applicant’s father was unable to assist the applicant with the payment of course fees. According to the delegate’s decision the applicant’s enrolment was cancelled by the course provider due to non-payment of fees. The accuracy of the information in the delegate’s decision was not challenged by the applicant. Despite the applicant’s inability to pay course fees due to his family’s financial difficulties, the applicant applied for and was later granted this visa on 20 October 2016. It is evident the applicant’s ability to pay the fees for the course of study in which he was enrolled when the visa was granted in October 2016, was problematic at that time due to financial hardship that arose from an earthquake in Nepal in April 2015.

21. The applicant claimed in evidence that he asked for an extension of time in which to pay fees that were due in October 2017. He claims he filled in a form for that purpose. The applicant did not verify that claim by providing the Tribunal with a copy of the form. There is no documentary evidence before the Tribunal which supports the applicant’s claim that he applied in writing, on an unspecified date, to defer his exams, or evidence of the outcome of that application, assuming it was made. The applicant claims he paid his unpaid fees on an unidentified date sometime after he informed a named employee of the education provider that he was unable to pay his course fees; the applicant claims the employee is no longer employed by the education provider. The applicant provided no evidence of communications with the named ex-employee or with the education provider about conversations with the named ex-employee in respect of deferring his examinations or making late payment of his course fees.

22. The applicant claims the course provider did not inform him that his enrolment was cancelled. The applicant provided no documentary evidence of correspondence with the education provider about his claim that the course provider failed to notify him of the decision to cancel his visa, or to warn him his enrolment may be cancelled due to unpaid course fees.

23. The applicant’s forgoing claims are easily made; they are unverified. The applicant is in the best position to provide reasonable evidence that verifies his claims about communicating with the education provider about deferment of examinations and his enrolment, and the other matters referred to above that the applicant relies on in this review. He did not do so. Having regard to the applicant’s failure to provide documentary evidence in support of the foregoing claims, the Tribunal gives them little weight against cancellation of the visa.

24. As discussed earlier in this decision, the applicant provided evidence to the Tribunal that he asked his education agent to pay fees to the education provider for the applicant. Consequently a payment was made in March 2017 and another payment was made in July 2017, well after the applicant’s enrolment was cancelled in October the previous year. The payment of fees in March and July 2017 was verified by copies of text messages and evidence given by the applicant’s witness Mr Saraj Sharma. The Tribunal accepts the applicant made those payments to the education provider months after the provider cancelled the applicant’s enrolment because the applicant failed to pay course fees. According to one of the text messages dated 2 August 2017 at 3:41 PM[5], on that date the education provider claimed the applicant still owed the provider money for unpaid course fees.

    [5] Tribunal file, folio 33 – 34 

25. The evidence relevant to the circumstances in which the ground for cancellation arose demonstrates the applicant failed to pay his course fees and this failure led to the cancellation of his enrolment in October 2016. The applicant part-paid outstanding fees in March and July 2017, nevertheless, according to the education provider, he did not pay all of the unpaid course fees. In essence the applicant’s evidence demonstrates he did not pay all of his course fees due to financial hardship caused by an earthquake in Nepal in 2015; a financial hardship that arose well before the applicant was granted 20 October 2016 the Student visa now under consideration.

26. At the time the applicant was granted the visa, he was already in Australia as the holder of a Student TU 573 visa.  Given the cancelled visa was granted on 20 October 2016, and that it was cancelled in October 2016, after the applicant’s last day of study on 21 October 2016[6], it is evident the applicant failed to maintain his enrolment, a requirement of his visa. It is also evident the financial difficulties that resulted in the applicant not paying his course fees arose in 2015, well before the applicant was granted the visa. The applicant could have chosen not to commence the course of study in October 2016, in the aftermath of the 2015 earthquake that caused the financial difficulties to the applicant’s family that lead to the applicant being unable to pay his course fees.  The Tribunal is not satisfied the cancellation occurred in exceptional circumstances beyond the control of the applicant. The circumstances in which the ground for cancellation for the visa arose weigh in favour of cancellation of the visa.

    [6] Tribunal file, folio 3: delegate’s decision

    Present and past behaviour of the visa holder towards the Department

27. The evidence before the Tribunal does not indicate the applicant has been uncooperative with the Department or departmental staff in the past. The applicant responded in a timely way to the NOICC. The Tribunal gives this consideration weight in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s.140

28. There is no evidence that any persons’ visa would be cancelled under s.140 of the Act as a consequence of the applicant’s visa being cancelled under s.116 of the Act. And that is so in this case because there is no evidence that another person holds a visa because they are a member of the applicant’s family unit and therefore, no person is at risk of their visa being cancelled under s.140 as a consequence of cancellation of the applicant’s visa. This consideration weighs in favour of cancellation of the visa.

    Whether there are mandatory legal consequences to a cancellation decision

29. If the visa is cancelled the applicant will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act, if he does not voluntarily depart Australia. The applicant will also be affected by the operation of s.48 of the Act as a result of the applicant’s visa being cancelled under s.116. Pursuant to s.48 the applicant will have limited options to apply for further visas whilst in Australia, and the applicant may be required to return to his home country. Further, pursuant to s.48 the applicant will not be able to apply for some visas onshore after cancellation, and unless the applicant can show that he meets Public Interest Criterion 4013, the applicant may be prevented from being granted particular temporary visas for a specified period. The Tribunal has given regard to this consideration and any adverse consequences that may flow to the applicant by operation of the Australian law discussed in this paragraph. Any legal consequences that may flow to the applicant from a cancellation decision would arise lawfully, and be an intended lawful consequence brought about by the ordinary operation of Australian law; therefore, the Tribunal gives this consideration neutral weight in respect to cancellation of the visa.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

30. The applicant does not have children in Australia and he has not applied for protection or made claims of being in need of protection. Consequently, there is no evidence that cancellation of the applicant’s visa would place Australia in breach of its international obligations such as protecting the rights of children or breaching Australia’s non-refoulement obligations. Accordingly, the Tribunal gives this consideration neutral weight in this decision.

    Consequences of cancellation of a permanent visa

31. The relevant visa held by the applicant is a temporary Student visa, consequently this consideration is irrelevant to the decision and the Tribunal gives it neutral weight.

    Any other relevant matters

1. The Tribunal has considered the evidence, and it is satisfied there is no relevant matter before the Tribunal that has not been considered in reaching this decision.

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

   DECISION

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

   Peter Haag
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1) The holder must be enrolled in a a full-time course of study or training if the holder is:

   (a)a Defence student; or

   (b)a Foreign Affairs student; or

   (c) a secondary exchange student.

   (2)A holder not covered by subclause (1):

   (a)must be enrolled in a full‑time registered course; and

   (b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)changes their enrolment to a course at the Australian Qualifications Framework level 9.