Karki (Migration)

[2019] AATA 6053

Karki (Migration) [2019] AATA 6053 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prasanna Dhoj Karki

CASE NUMBER:  1715363

HOME AFFAIRS REFERENCE(S):           BCC2017/1581536

MEMBER:Peter Haag

DATE:11 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 October 2019 at 9:35am

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 – depression – mother’s motor vehicle accident in home country – no deferment of course or approach to department – no psychological assistance sought at the time – plans to change course and career goals – employment – decision under review affirmed

LEGISLATION

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 July 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 the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 August 2019 to give evidence and present arguments.

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)

   ·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).

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

8. The applicant responded in writing on 10 July 2017 to the Notice of Intention to Consider Cancellation of his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (NOICC) under s.116 (General Power) of the Act. In the response he agreed that he did discontinue his studies and that it was “a great mistake”[1] for him to do so. In evidence before the Tribunal, the applicant, in effect, accepted the ground for cancellation was made out because he had breached a condition of his visa by “dropping out”. Furthermore, the applicant has not challenged the delegate’s findings that the applicant breached visa condition 8202(2)(a) on 3 August 2016 when the applicant ceased to be enrolled in a course due to the education provider cancelling the enrolment on that date, and secondly, that the applicant was not enrolled in a registered course of study on 11 July 2017, the date of the delegate’s decision. (The applicant provided a copy of the delegate’s decision to the Tribunal). The evidence establishes, and the Tribunal is satisfied, that the applicant was not enrolled in a registered course of education and he was in breach of 8202(2)(a) at the time the delegate cancelled the applicant’s visa.  On the basis of the foregoing considerations the Tribunal is satisfied the ground for cancellation of the applicant’s Student visa is made out.

   [1] Department file, folio 48 – 49

   Consideration of the discretion to cancel the visa

9. 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 procedural instructions ‘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

10. According to the applicant’s evidence before the Tribunal, he arrived in Australia in 2015 for the purpose of completing the Master of Technology (Enterprise Systems) at Federation University. In evidence the applicant informed the Tribunal the Master of Technology is primarily a course of study in information technology. The course started in November 2015. According to the delegate’s decision, the applicant’s enrolment in the course was cancelled on 3 August 2016. The applicant has readily acknowledged in correspondence with the Department[2], the Tribunal[3] and in his evidence before the Tribunal that he disengaged from the course and consequently his enrolment was cancelled.

    [2] Department file, folio 48 – 49

    [3] Tribunal file, folio 61 – 71; and the written personal statement dated 25 August 2019 the applicant provided to the Tribunal at the hearing on 28 August 2019

11. According to the applicant’s evidence, the first semester of the course started in November 2015 and the second semester started in March 2016. The applicant has not studied the information technology course, nor has he studied in the higher education sector, since his enrolment was cancelled. In evidence before the Tribunal the applicant informed the Tribunal that he has no interest in studying information technology, the course the visa enabled him to undertake. Instead he wishes to study commercial cookery in Australia in order to advance the cooking skills he has developed during his long-term employment in Australia as a cook with a view to “get a sponsorship through my work”[4]. The Tribunal is satisfied the applicant has abandoned the study purpose for which the visa was granted, namely, to study information technology in the higher education sector, and in particular to undertake the Master of Information Technology course.

    [4] Applicant’s personal statement dated 25 August 2019, provided by the applicant to the Tribunal at the hearing and placed on the Tribunal file at that time

12. The applicant did not leave Australia after his enrolment was cancelled or after he later abandoned the purpose of his travel to Australia, that is, to undertake the Master of Technology qualification. In the applicant’s personal statement dated 25 August 2019 he indicates that he has stayed in Australia in order to advance his cooking skills. In this regard the applicant recently applied to undertake the Certificate IV in Commercial Cookery, but his application was unsuccessful because he did not hold a Student visa; nevertheless, the applicant is motivated to remain in Australia for the purpose of completing a Bachelor in Commercial Cookery with a view to getting sponsorship through his work. In evidence before the Tribunal the applicant informed the Tribunal that if he is unable to study cookery in Australia because his visa is cancelled, he will undertake the study somewhere else, perhaps in Nepal, his home country. It is evident the applicant would be content to fulfil his ambition to study cookery, his reason for remaining in Australia, by undertaking the study in his home country, or somewhere else outside Australia, if his visa is cancelled. Having regard to the forgoing considerations and evidence, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. This consideration weighs in favour of cancellation of the visa.

    The extent of compliance with visa conditions

    According to the academic transcript the applicant provided to the Tribunal, he studied four units towards the Master of Technology in 2015. He achieved two credit passes, a distinction and a pass. In the second semester of the course, which started in March 2016, the applicant undertook four more units[5]. The applicant failed all those units. The applicant’s enrolment was cancelled by the education provider on 3 August 2016. The applicant’s visa was cancelled on 11 July 2017. The evidence demonstrates that between commencing study in Australia in November 2015, to the time the applicant’s enrolment was cancelled, the extent of the applicant’s compliance with the requirement that he be enrolled in a registered course fell substantially below the enrolment condition of the Student visa. This is the only failure by the applicant to comply with the conditions of his visa that is in issue in this proceeding; nevertheless, this particular failure weighs in favour of cancellation of the visa.

    [5] Tribunal file, folio 45

    The degree of hardship that may be caused to the visa holder and any family members

13. The costs and expenses relating to the purpose of the applicant’s travel to and stay in Australia may be treated by the applicant and his family as financial resources thrown away if the visa is cancelled. The Tribunal accepts that the cost thrown away may cause a degree of hardship to the visa holder and members of his family. The evidence before the Tribunal is insufficient to enable the Tribunal to assess the actual degree of financial hardship that may be caused to the visa holder and members of his family by cancellation of the visa because the applicant has not provided detailed evidence to the Tribunal about his financial position or the financial position of the members of his family who provided him with financial assistance. Nevertheless, the Tribunal is satisfied the applicant and his family will suffer some unquantified degree of financial hardship from the cancellation of the visa.

14. In evidence before the Tribunal, the applicant claimed that he disengaged from his studies because he was depressed and that his depression was exacerbated in mid-July 2016 by learning his mother suffered injuries in a motor vehicle accident in Nepal.  The applicant informed the Tribunal in correspondence provided to the Tribunal before the hearing, that he is feeling calm and well because his mother “is doing better”[6].  Additionally, the applicant provided to the Tribunal a report dated 1 November 2017 signed by Johan Zaid Crouch, a mental health social worker. That report indicates that the applicant has been engaged in stable employment since February 2017. In evidence the applicant informed the Tribunal that he is currently employed as a cook. The report also indicated the applicant, as at November 2017, is motivated to reengage with study. In evidence the applicant informed the Tribunal that he is motivated to study cooking.

    [6] Tribunal file, folio 70

15. As the Tribunal understands the report provided by the social worker, the applicant is functional both in his employment and in his day-to-day life. The evidence before the Tribunal considered as a whole, including the social worker’s report, does not satisfy the Tribunal that the applicant is psychologically or emotionally vulnerable to the degree that cancellation of the visa may engender in the applicant such psychological or emotional hardship that the visa should not be cancelled.

16. No doubt members of the applicant’s family will suffer a degree of emotional upset if the applicant’s visa is cancelled. Nevertheless, there is no evidence before the Tribunal which satisfies the Tribunal that the applicant’s parents or other family members may suffer psychological or emotional distress to a degree that weighs in favour of not cancelling the visa.

17. On the basis of the forgoing considerations and evidence, considered as a whole, the Tribunal is not satisfied that the degree of hardship that may be caused to the visa holder and family members, weighs in favour of not cancelling the visa. Consequently, the Tribunal gives this consideration neutral weight in this decision.

    The circumstances in which the ground of cancellation arose

18. The applicant disengaged from his studies in 2016, during the second semester of the Master of Technology. The applicant claims he disengaged from the course because he was suffering from depression induced by homesickness and later by learning, in mid-July 2016, that his mother was injured in a motor vehicle accident in his home country. Another factor in the applicant’s depression was the inability of his parents to pay the applicant’s course fees because the funds previously available for that purpose were expended on medical treatment for the applicant’s mother. The applicant’s enrolment was cancelled by the education provider on 3 August 2016. The evidence demonstrates the Department informed the applicant of its intention to consider cancellation of his Student visa under s.116 of the Act, by written notice (the NOICC) dated 15 June 2017.

19. The applicant, aware of his visa requirement to maintain his enrolment in a registered course, mindful of the money invested by his parents in funding his study in Australia, and aware that he had disengaged from his course, did not apply to the education provider for the provider to defer his course. Deferment of the course would have preserved the applicant’s enrolment in the course. Furthermore, the applicant did not approach the Department to discuss his options. The applicant did not return to Nepal to visit his mother, instead he chose to remain in Australia and run the risk of cancellation of his enrolment and his visa because he had disengaged from the study purpose for which the visa was granted. The applicant, in evidence, did not claim that he was so depressed and dysfunctional that he was incapable of applying to defer his course or engaging with the Department about his options.

20. There is no evidence that the applicant sought psychiatric or psychological assistance at any time proximate to learning his mother was injured in a motor vehicle accident. The applicant claims that he visited a psychologist twice in 2017 in April or July of that year. At the hearing the applicant provided to the Tribunal a document dated 1 November 2017[7]. The document is headed “psychological report”, and it was discussed earlier in this decision. The report is unsigned; however, it appears above the name Johan Zaid Crouch. This person is not a registered psychologist. It is evident from the report that Mr Crouch is a mental health social worker.

    [7] This report was received by the Tribunal at the hearing and it now forms part of the Tribunal file

21. The Tribunal does not accept that this report is an expert psychological report because it is not the report of a registered psychologist and the report does not demonstrate the author is an expert in the field of psychology. The author of the report was not a witness in this review.

22. The author of the report purports to diagnose the applicant’s psychological state in July 2016, on the basis of one consultation with the applicant, on 1 November 2017. An ordinary reading of the report demonstrates that the author’s assessment of the applicant’s psychological state in July 2017 was largely dependent upon accepting the applicant’s report of his own psychological state at that time, and the consequences of that state. Based on this acceptance, the author of the report opined that the applicant’s psychological state was primarily caused by the applicant’s reaction to learning of his mother’s injury in a motor vehicle accident in July 2016, and concluded that what happened to the applicant’s mother “had a severe impact on Mr Karki’s mental health, and consequently, his performance in his studies deteriorated”.

23. The Tribunal gives minimal weight to the forgoing opinions because: they were not formed proximate to July 2016; they were not informed by the results of psychological testing conducted proximate to the claimed causal event; and they are primarily reliant upon the applicant’s subjective report of the impact on his mental health of learning his mother was injured in the motor vehicle accident. Furthermore, the Tribunal is not satisfied that the author’s opinion, formed in November 2017, of the applicant’s psychological health in July 2016, is a reliable opinion.

24. Furthermore, the report does not opine that the applicant was incapable of sensibly communicating with people in July 2016 about his circumstances and how he was feeling, or speaking to the appropriate staff of his education provider about his circumstances, and seeking their assistance to defer his course until his personal circumstances improved.

25. The evidence before the Tribunal does not satisfy the Tribunal that the applicant was unable to engage with his education provider with a view to avoiding the cancellation of his enrolment by, for example, applying to defer his studies. Accordingly, the Tribunal is not satisfied the circumstances in which the ground for cancellation arose were beyond the control of the applicant. 

26. The forgoing considerations relevant to the circumstances in which the ground for cancellation arose, considered as a whole, weigh in favour of cancellation of the visa.

    Past and present 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. The applicant responded to the Department’s NOICC in a timely way. Consequently, the Tribunal gives weight to the applicant’s past and present behaviour towards the Department against cancellation of visa.

    Whether there would be consequential cancellations under s.140

28. There is no evidence that any person’s 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 because there is no evidence that another person holds a visa as a member of the applicant’s family unit. Consequently, no person is at risk of their visa being cancelled under s.140 as a result of cancellation of the applicant’s visa pursuant to s.116. The Tribunal gives this consideration neutral weight in this decision.

    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 if he does not voluntarily depart Australia. The applicant will also be affected by the operation of s.48 of the Act as result of cancellation of the visa under s.116. By operation of s.48 the applicant will have limited options to apply for further visas while in Australia, and the applicant may be required to return to his home country. 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 for a specified period of time from receiving a grant of particular temporary visas. The Tribunal has had regard to this consideration and any adverse consequences that may flow to the applicant by operation of the Australian law referred to in this paragraph.

30. Additionally, although it is not evidently relevant in this case, it is possible the applicant may be subject to indefinite detention if the visa is cancelled, and the applicant cannot be removed from Australia consistently with Australia’s non-refoulement obligations; this factor has been considered by the Tribunal.

31. Mandatory legal consequences arising from the cancellation of the visa, considered above, would arise, or may arise pursuant to Australian law, and any such consequences would be intended lawful consequences resulting from the ordinary operation of Australian law. This consideration does not operate in favour of not cancelling the visa, because the Tribunal is not persuaded to give weight in favour of not cancelling the visa due to legal consequences that arise as a result of the intended operation of Australian law. Accordingly, the Tribunal gives neutral weight in this case to the consideration concerning lawful mandatory legal consequences of cancellation of the visa.

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

1. The applicant does not have children in Australia and he has not applied for protection or claimed to be in need of protection. 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 Australia’s non-refoulement obligations. Consequently, this consideration is not relevant to this decision and the Tribunal gives it neutral weight.

   Consequences of cancellation of a permanent visa

2. The visa under consideration is a temporary Student visa therefore this consideration is irrelevant to the decision and the Tribunal gives it neutral weight in this decision.

   Any other relevant matters

3. The Tribunal has considered the whole of the evidence, and it is satisfied there is no relevant matter before the Tribunal, either in favour of or against cancellation of the visa, that has not been considered in reaching this decision.

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

   DECISION

5. 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 (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.