Karki (Migration)

[2019] AATA 1675

Karki (Migration) [2019] AATA 1675 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kishor Karki

CASE NUMBER:  1813880

HOME AFFAIRS REFERENCE(S):           BCC2017/3825648

MEMBER:Meredith Jackson

DATE:22 May 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 22 May 2019 at 3:03pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – grandfather’s illness – poor study record – 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 4 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant Mr Kishor Karki, a citizen of Nepal was granted a student visa on 27 February 2017, with a stay period until 2 May 2019. The visa was issued in order for him to undertake study in Australia. The delegate cancelled the visa on 4 May 2018 under s.116(1)(b) of the Act, because the holder had not complied with a condition of the visa. Specifically, that he had not complied with paragraph 8202(2)(a) of condition 8202 (continues studying), which requires that he remain enrolled full-time in a registered course.

3.    In this review, the Tribunal must decide whether the ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to be cancelled.

4.    Mr Karki appeared before the Tribunal on 4 April 2019 to give evidence and present arguments.

5.    Mr Karki was represented in relation to the review by his registered migration agent, who did not attend the hearing.

6.    For the following reasons, the Tribunal has concluded that the decision to cancel Mr Kishor’s visa should be affirmed.

Evidence before the Tribunal

7.    The delegate’s decision, which Mr Karki gave to the Tribunal in the review, recorded the following:

a)Based on evidence provided to the delegate in the Provider Registration and and International Student Management System (PRISMS), it appeared that the visa holder was not enrolled in a full-time registered course of study during the period 28 September 2017 to 24 January 2018, a total of 118 days;

b)If the visa holder had not complied with condition 8202, his visa may be cancelled under paragraph 116(1)(b) of the Act, which sets out the following ground for cancellation: 116(1) Subject to subsections (2) and (3) the Minister may cancel a visa if he or she is satisfied that: (b) the holder has not complied with a condition of the visa;

c)On 28 September 2017 the visa holder’s education provider Group Colleges Australia notified the Department that Mr Karki, the visa holder, had ceased studies and was no longer enrolled;

d)On 24 January 2018 Lifetime International Colleges created a Confirmation of Enrolment (COE) in a registered course for Mr Karki;

e)The visa holder did not provide evidence to show he was enrolled in any course of study in Australia between 28 September 2017 and 24 January 2018;

f)Mr Karki was notified of the intention to consider cancellation (NOICC) on 19 January 2018 and 10 April 2018 and the notice invited him to respond in writing.

g)In his response to the NOICC, the decision recorded that the visa holder had claimed:

i.He had been enrolled at UBBS Sydney since May 2017 and the semester finished in November;

ii.He came back to Brisbane in November and he thought it was a summer break;

iii.He could not get comfortable in Sydney and returned to Brisbane;

iv.His grandfather was sick and the fees cost a lot and his family were unable to send him money;

v.The circumstances that led to him not being enrolled related to his concerns over his grandfather’s health;

vi.The visa holder provided a letter from a doctor in Nepal concerning a patient, Mr Yam Bahadur Karki, but the visa holder had not provided evidence confirming the identity of the person named in the letter or his relationship to him;

vii.The visa holder provided no evidence of an assessment of his emotional or mental health during the period leading up to the course cancellation by his education provider;

viii.The visa holder had not provided evidence to support his claim his family were unable to send him money;

ix.It is reasonable to expect that a student visa holder affected by financial difficulties would depart Australia temporarily until their financial situation improves father than remain in Australia and not comply with their visa conditions;

x.Student visa holders who are not enrolled in a registered course should department Australia, apply for a new visa or obtain new enrolment within 28 days after a course cancellation;

xi.The onus rests solely on the student visa holder to notify the department regarding changes in their circumstances in the visa holder’s case, departmental records show he did not do so;

xii.The visa holder was aware of these circumstances and remained in Australia non-compliant with his student visa condition for an extended period.

h)Mr Karki provided supporting documents to the department, including:

i.COE from Group Colleges Australia Pty Ltd for a Bachelor of Business course starting 8 May 2017 and ending 1 May 2020, issued on 29 May 2017; and a COE for a Graduate Diploma of Management (Learning) with a start date of 5 February 2018 and end date of 8 February 2019.

ii.A brief reminder letter relating to his initial submission in response the NOICC;

iii.A copy of a letter from a doctor in Nepal regarding an operation and admission for Mr Karki’s father for a hernia and an infection;

8.    Based on the information before the delegate, the delegate was satisfied there was a ground for cancellation for a breach of condition 8202;

9. The delegate was satisfied that grounds for cancellation do exist under section 116(1)(b) for non-compliance with condition 8202 during the period 28 September 2017 to 24 January 2017.

The hearing

1. The Tribunal hearing proceeded on 4 April 2019. Mr Karki attended the hearing and supplemented his written submissions by way of oral evidence and submissions.

2. The Tribunal, under section 359AA of the Act, referred Mr Karki to information about him held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information in the database, which captures a chronological record of an applicant’s academic history in Australia: enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and Mr Karki was invited to comment on it as discussion proceeded. The Tribunal asked him if he wished to seek further time to consider the record. Mr Karki said he was prepared to comment on the information immediately after it was read to him and said he understood it and why it was relevant to his case.

3. Mr Karki stated in the hearing:

   a)He was reliant financially on his grandfather who had supported his studies to the extent of around AUD 50,000;

   b)In July 2017 his grandfather had been ill and was admitted to intensive care and money needed for his studies was diverted to pay for healthcare costs;

   c)He had not been comfortable in Sydney where he knew very few people so at the end of September he returned to Brisbane where he knew people from his early days in Australia;

   d)Prior to this, in 2016,  his enrolment in a Bachelor of Business at Kaplan Business School in Brisbane had been cancelled by the institution for non-payment of fees;

   e)He had moved to Sydney to attend UBBS Sydney and commenced studying there in May 2017. This had not worked out because in July 2017, shortly after his studies had commenced, his grandfather became ill and was admitted to hospital;

   f)He could not focus on his studies after this; he became very stressed;

   g)UBBS cancelled his enrolment on 28 September 2017, after he had talked to the college and asked to be released; he got no release letter but he came back to Brisbane;

   h)When he arrived in Brisbane he tried to re-enrol at Kaplan Business School but he did not get a reply until January;  he had discussed his financial situation with Kaplan but they would not accept him back until he paid fees;

   i)He enrolled in Lifetime International College for a Graduate Diploma of Management on 5  February 2018; that course was cancelled after the visa was cancelled;

   j)There was an error in the delegate’s statement of reasons in relation to dates, where the delegate in one of two paragraphs referring to the period in which the visa holder did not study: it incorrectly stated the end date of the period as 2017 not 2018;

   k)The delegate did not properly consider the relationship between the visa holder and his grandfather and his reliance on his financial support; he had been reliant on his grandfather for money for his studies so when he became sick it affected his studies;

   l)In response to questioning from the Tribunal about his claims to the delegate about the period between 28 September 2017 and November 2017 in which he had said he remained enrolled until November 2017 and thought he was on summer break: he confirmed he was not studying between 28 September 2017 and 5 February 2018;

   m)The purpose of him studying in Australia was to complete his qualifications and help his parents and grandfather start new businesses;

   n)His grandfather’s health was improving and he was ready to study and complete his courses;

   o)If his visa decision is affirmed, his grandfather would suffer, as he had spent a lot of money on his Australian studies and it might cause him to have a heart attack; as his grandson he was his grandfather’s only hope; he could not go back to Nepal and face him and tell him he had lost his money when he had invested around $50,000;

   p)He could not go back to his parents, who are in Europe, because they had sent him to the best place to study and he didn’t achieve anything;

   q)In response to the Tribunal’s question: he had not contacted the department at any stage during his study periods about his changed circumstances; he had not known he needed to advise the department about changes; and

   r)In response to the Tribunal’s question about why he had not used his opportunities to study and this might suggest that he might not use them in the future: he said he had faced many obstacles in his time in Australia, there was not enough money to live on with only 20 hours’ working entitlement as a student.

Documents provided to the Tribunal

1. Mr Karki provided:

   a)A submission commenting on the delegate’s decision in relation to his relationship with his grandfather and to an error in dates in the decision; and requesting that the Tribunal use its “discretionary power and not to cancel my visa”;

   b)A Relationship Certificate from the Office of the Village development Committee of Majhphant, Parbat, Nepal, dated 19 December 2013, affirming the visa holders’ family relationships including that between him and his grandfather.

Does the ground for cancellation exist?

1. Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that section are made out. Relevantly to this case, these include the ground set out in s.116(1)(b), which holds that subject to certain considerations not relevant in this case, the Minister may cancel a visa if he or she is satisfied that: (b) its holder has not complied with a condition of the visa.

2. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. S.116(1)(b), a visa may be cancelled if the Minister or the Tribunal is satisfied its holder has not complied with a condition of the visa.

3. The Tribunal notes Mr Karki’s visa was granted on the grounds that he would travel to Australia and remain enrolled in a full-time registered course of study, as required under condition 8202.

4. The Tribunal has carefully considered the review applicant’s submissions in relation to his enrolments and gaps in his studies, particularly his submissions regarding his decision to cease studying in Sydney in September 2017 and return to Brisbane.

5. The Tribunal notes Mr Karki submitted to the delegate that he had been enrolled at UBBS Sydney until the end of the final semester of 2017, in November, and his absence from study was because he thought it was summer break. The Tribunal notes Mr Karki  has not claimed to the Tribunal that he was enrolled in any registered course between the period of 28 September 2017 and November 2017. The Tribunal notes Mr Karki’s  acknowledgement in oral evidence that he had returned to Brisbane after his enrolment was cancelled on 28 September 2017 to try and re-enrol at Kaplan Business School; and that he did not start studying until he secured enrolment at Lifetime International Training College on 5 February 2018. The Tribunal concludes this indicates Mr Karki was not enrolled in a registered course between 28 September 2017 and 5 February 2018, a period of 130 days in which he did not comply with his visa condition 8202 (continues studying).

6. The Tribunal is satisfied that the ground for cancellation in s.116(1)(a) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

The discretion

1. The Act and the Regulations do not prescribe the matters to 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 applicant’s travel to and stay in Australia

1. The purpose of Mr Karki’s travel to and stay in Australia was to study and remain enrolled. His PRISMS record indicates that he first enrolled on 24 February 2014. In total, he has been enrolled in seven courses, and his PRISMS record shows six of them have been cancelled. The Tribunal accepts the most recent cancellation of a Graduate Diploma of Management (Learning), arose from his visa cancellation. Notwithstanding the inevitability of this most recent cancellation, his study record is poor. In five years, he has completed just one two-week course, a non-award General English course. Mr Karki was granted the visa  to study, remain enrolled and progress academically.

The circumstances in which the ground for cancellation arose

1. Mr Karki’s central claim is that his grandfather’s illness, over a month from July 2017, severely restricted his family’s finances and caused him stress as he struggled to study in Sydney. He claims the illness and the stress account for his departure from Sydney in 2017 and this explains his course cancellation and failure to remain enrolled in the period between 28 September and 24 January 2018, the period in which the delegate found he had not complied with visa condition 8202 (remain enrolled). The Tribunal accepts that Mr Karki suffered distress associated with his grandfather’s illness. The Tribunal also accepts that he found Sydney a difficult place to live compared with his earlier time in Brisbane. However the Tribunal notes Mr Karki’s grandfather’s illness did not occur until July 2017. The Tribunal notes, however, that prior to that time, despite being enrolled in several vocational and higher education courses from the time of his arrival in Australia in 2014, Mr Karki did not successfully study for more than two weeks, and then in an English language course only.

2. Mr Karki also claims that his visa cancellation meant his grandfather may have wasted up to $50,000 in his education. He submits that this potential loss is disturbing for him as his grandson and might threaten his grandfather’s health.

3. The Tribunal has taken account of these claims in reaching its conclusions.

Extent of compliance with visa conditions and co-operation with the department

1. The Tribunal notes Mr Karki was not in a registered course between the dates of 28 September 2017 and 5 February 2018. The Tribunal also notes his claim to the department in response to the NOICC that in the period between 28 September and November 2018, he was enrolled, and by November, considered he was on summer break until January. Mr Karki did not repeat this claim to the Tribunal. The evidence of his course cancellation on 28 September 2017 is made clear by his PRISMS record and he did not dispute the record in the hearing.

2. The Tribunal asked Mr Karki in the hearing whether he had ever notified the department of various changes in his circumstances as required. He responded that he did not know he needed to do so and was unaware of the need to notify the department when his course was cancelled by his provider. The Tribunal notes the conditions for the visa grant included condition 8202 Continues Studying and condition 8105 Work Limitation. Mr Karki spoke confidently about the impact of the 8105 Work Limitation condition.

3. The Tribunal has taken account of these claims in reaching its conclusions.

Hardship caused by the cancellation to the applicant and his family

1. Mr Karki claims he will face familial and economic hardship on his return to Nepal. He submits that his parents have lost faith in him and that his grandfather has suffered heavy losses through investing in his education. He states that his grandfather will suffer adverse health consequences, even a heart attack, if he returns home academically empty handed.

2. The Tribunal has taken account of these claims in reaching its conclusions.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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.

1. Mr Karki did not raise the issue of legal consequences arising from the cancellation, but the Tribunal has considered the impacts. The Tribunal accepts that if Mr Karki is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and may also be barred for applying for Australian temporary visas for three years. Further, that he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia. Mr Karki is currently on a Bridging visa because of this review process. In the absence of him making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, he will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes those classes of visas, which do not include Student visas. Consequently, this limits the visa applications Mr Karki can make whilst onshore.

1. The Tribunal has taken account of these considerations in reaching its conclusions.

Whether there are others whose visas would or may be cancelled under s. 140

1. This consideration does not apply. Mr Karki has no dependant family members in Australia.

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

1. In considering whether to exercise its discretion to cancel the Mr Karki’s visa, policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). No claim was made and no information is before the Tribunal that a cancellation outcome would result in a breach of any of Australia’s international obligations.

Conclusion

1. The Tribunal has considered Mr Karki’s claims and concludes as follows:

   a)The first claim is that the circumstances leading up to the cancellation of his visa happened as a result of his grandfather being struck by illness, which in turn, caused stress to Mr Karki financially and emotionally. This claim, which is central to his submission that the cancellation resulted from circumstances beyond his control, is weakened by Mr Karki’s overall study history in Australia since 2014. While the Tribunal accepts that Mr Karki’s grandfather’s illness is likely to have been stressful for him in the lead-up to his visa cancellation, and that events surrounding it are likely to have negatively affected his financial situation, it is not persuaded that his sponsor’s illness fully accounts for his decision to cease being enrolled. The Tribunal notes that the illness occurred in July 2017, whereas Mr Karki by then had not studied successfully in any enrolment, with the exception of a two-week English course. The Tribunal has considered Mr Karki’s academic record in Australia and finds it dismal. It concludes a profound lack of application to his studies explains his move from Brisbane to Sydney that happened well before the illness occurred. By July 2017 his first three courses had already been cancelled. The Tribunal affords the claim that Mr Karki’s course cancellation was due to his grandfather’s circumstances, and therefore beyond his control, little weight in Mr Karki’s favour.

   b)The second claim is that Mr Karki will suffer hardship if his visa is cancelled. This is credible on the evidence, and a consequence of the neglect and transgressions he displayed as a student, as described above. The Tribunal accepts that Mr Karki’s prospects in Australia and in Nepal will be damaged by the cancellation of his visa. It agrees with his claim that having absorbed $50,000 of his grandfather’s money and achieved very little, he will suffer severe repercussions. The Tribunal has considered this, but notes Mr Karki does not acknowledge his own neglectful role in his study history. The Tribunal put to him at the hearing that he has had a lot of opportunities to study but has not done so successfully since 2014, except for a two-week English course. His response re-emphasised the stress he suffered due to his grandfather’s illness in 2017. The Tribunal considers Mr Karki’s course cancellations between 2014 and 2017 demonstrate his personal failure as a genuine student. They led to him being found not to have satisfied a key visa condition, to remain enrolled. The Tribunal accepts Mr Karki’s family, and he will suffer some hardship as a result of the visa cancellation and affords these considerations some weight in Mr Karki’s favour.

   c)The third claim, that the delegate’s decision was defective, that the delegate erred in not considering evidence in relation to Mr Karki’s relationship with his grandfather and made an error of fact in recording a year in a paragraph of the decision, are noted by the Tribunal. Also noted is that while Mr Karki did not notify the department of his frequent changes of circumstances, he did provide timely responses to the NOICC. The Tribunal affords these considerations some weight in Mr Karki’s favour.

2. The Tribunal does not consider the combined weight of the individual elements that it weighs in Mr Karki’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision.

3. Having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel Mr Karki’s Student visa.

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

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Meredith Jackson
Member