Khadka (Migration)

Khadka (Migration) [2020] AATA 6174 (18 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Aashan Khadka
CASE NUMBER:  1827793
DIBP REFERENCE(S):  BCC2017/4332281
MEMBER:Michael Ison
DATE:18 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa

Statement made on 18 August 2020 at 3:49pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – grant of visa within 3 years of cancellation of previous visa – compelling circumstances justifying granting of visa – study history – end of relationship, mental health, discontinuance of study and non-enrolment – application made before previous visa cancelled – advice and conduct of migration agent – unconvincing evidence of future study and work intentions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.217(1), Schedule 4, criterion 4013(1)(b), (2)(b), Schedule 8, condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 September 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 17 November 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The applicant provided the Tribunal with a copy of the primary decision with his application for review.
In the present case, the delegate refused to grant the visa on the basis that the applicant did not satisfy Public Interest Criterion 4013 (PIC 4013), and so did not satisfy cl.500.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate made these findings because on 29 November 2017 the last Student (Subclass 500) visa held by the applicant was cancelled under s.116(1)(b) of the Act as the delegate who cancelled that visa found the applicant did not comply with condition 8202 (maintain enrolment) of that visa. The delegate who refused the visa application that is the subject of this review was not satisfied the applicant demonstrated there were relevant compassionate or compelling circumstances that justified waiving the requirements of PIC 4013(1)(b) by granting the applicant a visa within three years of the cancellation of the applicant’s previous visa.
The applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The applicant told the Tribunal that his representative advised the applicant that the applicant would not need his assistance for the hearing. The representative also did not respond to the Tribunal’s hearing invitation. The Tribunal intends to refer the representative’s conduct in this regard to the Office of the Migration Agents Registration Authority.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.
The Tribunal also informed the applicant that it would allow the applicant an opportunity to address the Tribunal toward the end of the hearing on any matter the applicant felt is relevant to the applicant’s review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl.500.217(1), which specifies that at the time of decision the applicant must satisfy specified public interest criteria as set out in Schedule 4 to the Regulations, including PIC 4013.
PIC 4013 sets out a number of ways in which an applicant is affected by a ‘risk factor’ including, relevantly, if a visa previously held by the applicant was cancelled under certain provisions of the Act, including s.116. If an applicant is affected by a risk factor, then PIC 4013 will only be satisfied if either the present visa application was made more than 3 years after the relevant visa cancellation, or if the Minister is satisfied that compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, justify the granting of the visa within 3 years after the relevant visa cancellation.
Is the applicant affected by a risk factor?
The applicant does not contest that his previous Student visa was cancelled on 29 November 2017 under s.116(1)(b) for failing to comply with condition 8202 attached to that visa, which is to maintain enrolment.
The Tribunal finds that the applicant is affected by the risk factor mentioned in PIC 4013(2)(b).
As the applicant is affected by a risk factor for PIC 4013, the Tribunal must consider whether the applicant satisfies PIC 4013(1)(a) or (b).
Was the present visa application made more than 3 years after the cancellation?
If an applicant is affected by a risk factor, PIC 4013 can be satisfied if the visa application was made more than three years after the cancellation in question (PIC 4013(1)(a)).
The primary decision records that the applicant applied for the Student visa that is the subject of this review on 17 November 2017, which is not more than three years after the applicant’s first Student visa was cancelled on 29 November 2017.
As the visa application was not made more than three years after the cancellation of the visa in question, the applicant does not satisfy PIC 4013(1)(a).
Are there compassionate or compelling circumstances that justify granting the visa?
PIC 4013 can also be satisfied if there are compelling circumstances that affect the interests of Australia justifying the granting of the visa within 3 years after the cancellation, or there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the granting of the visa within 3 years after the cancellation (PIC 4013(1)(b)).
The terms ‘compelling circumstances’ and ‘compassionate circumstances’ are not defined in the Act or Regulations. The Macquarie Dictionary relevantly defines ‘compassionate’ to mean ‘having or showing compassion’. ‘Compassion’ is defined as ‘a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy’. ‘Compel’ is defined as ‘to force or drive, especially to a course of action’. Whether there are compelling and compassionate circumstances is a matter of fact and degree for the Tribunal to determine.
The applicant does not claim that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the granting of the visa within 3 years after the cancellation.
The applicant claims there are compelling circumstances that affect the interests of Australia justifying the granting of the visa within 3 years after the cancellation of his previous visa.
When discussing the determinative issues at the commencement of the hearing with the applicant, the Tribunal explained to the applicant that the Department has set out in its policy document called its Procedural Instructions how the consideration ‘compelling circumstances that affect the interests of Australia’ can be assessed and applied in circumstances where the applicant’s previous visa that was cancelled was a Student visa and the visa he seeks to have the PIC 4013 three year exclusion period waived for is also a Student visa.
The Tribunal read to the applicant the relevant extract of the Department’s policy, which is:
There may be compelling circumstances affecting the interests of Australia in the case of non-citizens whose last substantive visa was a Student visa and who are applying for a new Student visa. If the applicant’s circumstances, including previous study history in Australia, clearly demonstrate that they have been a genuine student in Australia, and there is no evidence that they have actively or intentionally abused or sought to circumvent immigration laws, s65 delegates may accept that compelling and compassionate circumstances exist. If the student wishes to apply for another Student visa, significant weight may also be given where there is evidence of a clear continuing study intention.
The Tribunal discussed the applicant’s circumstances in the context of this policy with the applicant in detail.
The applicant told the Tribunal that he came to Australia on 24 July 2015 as the holder of a Student (Subclass 573 Higher Education Sector) visa to study a package of courses commencing with a Certificate IV in Information Technology, followed by a Diploma in Information Technology and concluding with a Bachelor of Information Technology. The applicant provided evidence of having completed the Certificate IV in Information Technology between July 2015 and December 2015 and the Tribunal accepts this evidence.
The applicant told the Tribunal he did not complete the Diploma of Information in 2016 due to a number of circumstances which may be summarised as:
·The applicant’s three-year relationship with his girlfriend back in Nepal ended at the end of his Certificate IV studies;
·He felt “kind of lost” after that relationship ended and it affected his mental health;
·The applicant was not in touch with his parents or friends back in Nepal at that time because he did not want his parents or friends to know how upset he was because of his relationship break-up. The applicant said he used to just sit at home and cry;
·The applicant did not seek or receive treatment for his mental health issues as he comes from a culture where mental health is not talked about;
·The applicant could not continue his Diploma studies and cancelled his enrolment, although he could not recall when this occurred;
·The applicant subsequently re-enrolled in a Diploma in Information Technology but again could not pass and was called to an interview by the International Student Co-ordinator at his education provider;
·The International Student Co-ordinator told the applicant he would have to apply to study the Bachelor of Information Technology on the basis of having completed the Certificate IV and the applicant agreed to do this because he wasn’t attending his Diploma classes and felt he had no choice;
·The applicant could not recall when he re-commenced his Diploma studies or when he stopped those studies;
·The applicant did not feel ready to resume his studies or to face people and did not enrol in a Bachelor course or show up at university;
·The applicant eventually went to see a migration agent which led him to applying for his second Student visa, being the visa that is the subject of this review;
·The applicant feels this was poor advice from the migration agent at the time as his current representative told him it was predictable in his circumstances that such an application would be refused;
·The applicant did not complete any study while holding a Bridging E visa from 1 December 2017, despite that visa not having a no study condition attached to it;
·The applicant instead chose to “work on myself” by joining a gym and reading a lot of books and attending courses on mental health. The applicant told the Tribunal that exercise has been important to his recovery as he believes there is a connection between exercise and good mental health, which the applicant described as a “mind/muscle connection”; and
·The applicant now feels ready to resume his studies.
The Tribunal accepts the evidence summarised above save for the concerns about that evidence that the Tribunal sets out in the balance of these reasons.
The applicant told the Tribunal he was not enrolled in a course of study at the time of the Tribunal hearing but had discussed getting enrolled with his representative in the days prior to the Tribunal hearing and his representative had agreed to inquire about potential courses on his behalf. The applicant’s evidence is his current representative has been his representative for the past two years but they have not discussed the applicant enrolling in a course of study until just prior to the Tribunal hearing because the applicant had to get a release letter from his previous education provider and then after re-attempting the Diploma in Information Technology did not feel ready to resume his studies.
The applicant told the Tribunal that he now intends to study a package of course in “disability” starting with a Certificate III, then a Certificate IV and ending with a Diploma before he would return to Nepal to work for international or local non-government organisations as a carer or with his Australian qualifications in a managerial role.
The Tribunal found the applicant’s evidence about his future intentions to be unconvincing. The applicant could not name what “disability” course he intends to study indicating to the Tribunal that the applicant has undertaken little or no research about those studies in Australia.
The Tribunal asked the applicant how much his future studies would cost. The applicant told the Tribunal AUD7,000 per semester and that it would take him two years at a total cost of AUD28,000 to study a Certificate III, Certificate IV and Diploma. Given the applicant could not name which course he intended to enrol in the Tribunal could not verify this evidence but gives the applicant the benefit of the doubt that this evidence could indicate he has undertaken some research about his future intended studies.
The Tribunal inquired of the applicant why he had not returned to Nepal to assist in his mental health recovery. The applicant told the Tribunal he could not return to Nepal and face his parents or society without a Bachelor’s degree in his hand and that only having the Certificate IV was not enough. The Tribunal asked the applicant how he reconciled this with his evidence to the Tribunal that he now intends to study only to the Diploma level before returning to Nepal. The applicant said he would have to check if he can obtain the Bachelor degree back in Nepal but his present intention was to get his Certificates and Diploma and return to Nepal. The applicant told the Tribunal that if there were positions available in Nepal that required a Bachelor degree and the course was available then he would definitely go for it. The applicant’s stated lack of knowledge about the availability of courses and types of jobs in Nepal caused the Tribunal additional concern about the applicant’s apparent lack of research. This caused the Tribunal to doubt the genuineness of the applicant’s stated future study and related career intentions.
The Tribunal invited the applicant to respond to the potential view the Tribunal could take that his study history in Australia is poor and the applicant’s circumstances do not clearly demonstrate, as the Department’s policy for the purpose of waiving PIC 4013 on the grounds of compelling circumstances affecting the interests of Australia requires, that he has been a genuine student in Australia. The applicant responded that if his intention was to just stay in Australia he may have found other ways to stay but he genuinely wanted to study and that is why he enrolled a second time and he still wants to study, even though he is not enrolled.
The Tribunal finds that the applicant’s circumstances, including his previous study history in Australia, do not clearly demonstrate the applicant has been a genuine student in Australia.
The Tribunal invited the applicant to respond to the potential view the Tribunal could take that in applying for a second Student visa before his first Student visa was cancelled the applicant was seeking to avoid the consequences of the prospective cancellation of his first Student visa, given his evidence he had received notification of that potential cancellation at the time of applying for his second Student visa. The Tribunal told the applicant this could indicate he actively sought to circumvent Australia’s immigration laws contrary to the Department policy the Tribunal had earlier read to him about when PIC 4013 will be waived on the grounds of compelling circumstances affecting the interests of Australia.
The applicant responded that the application for his second Student visa was the result of poor advice from his previous migration agent and he did not know about PIC 4013 until he retained his current representative. The applicant told the Tribunal he provided his previous agent with documents to support his second visa application but his previous agent failed to return his calls and then moved office so that the applicant could not contact them. An internet search revealed publicly available information that the applicant’s previous migration agent has been deregistered since November 2018 and in June 2019 singed an enforceable undertaking with Consumer Protection Western Australia to refund five clients their fees as a result of failing to provide the requested services. The Tribunal accepts the applicant’s evidence in relation to his previous migration agent and does not find that the applicant sought to intentionally circumvent Australia’s immigration laws.
The Tribunal invited the applicant to respond to the potential view the Tribunal could take that his failure to be enrolled for an extended period of time, including at the time of the Tribunal’s hearing, could indicate that he does not have a clear continuing study intention consistent with one of the requirements of the Department’s policy about when PIC 4013 will be waived for someone seeking a Student visa on the grounds of compelling circumstances affecting the interests of Australia.
The applicant responded that he has been working on himself and he could enrol now and is confident he will successfully complete any course he enrols in. The Tribunal was not convinced by the applicant’s response or earlier evidence that in the applicant’s circumstances there is evidence of a clear continuing study intention. The applicant has not studied for an extended period despite being able to do so, provided the Tribunal with no medical evidence to support his claims of mental health problems and has not enrolled in a registered course of study despite the pending Tribunal hearing and having been advised in immigration matters, on the applicant’s evidence, by his current representative for approximately the past two years.
The applicant did not claim that there were any other grounds which would amount to compelling circumstances affecting the interests of Australia.

Given these findings, the Tribunal finds in the applicant’s circumstances there are no compelling circumstances affecting the interests of Australia that justify granting the applicant the second Student visa he applied for less than three years after the cancellation of his previous Student visa.
Other matters – alternative determinative issue (non-enrolment)
The Tribunal explained to the applicant during the hearing that his evidence of not being enrolled in a registered course of study meant that he was not eligible to be granted a second Student visa because being enrolled in a registered course of study is a primary requirement for the grant of a Student visa under cl.500.211(a) of the Regulations. The Tribunal explained this was a new and alternative determinative issue that was not the determinative issue the delegate relied upon to refuse the applicant’s application for a second Student visa.
Ultimately, the Tribunal has affirmed the decision of the delegate on the basis the applicant does not meet PIC 4013 and the requirements of cl.500.217 of the Regulations, rather than on the ground his non-enrolment means the applicant does not meet the requirements of cl.500.211(a).
Had the Tribunal found the applicant met PIC 4013 but continued not to be enrolled at the time of the Tribunal’s decision, then the Tribunal would have refused the applicant’s application because of his non-enrolment. The Tribunal was not satisfied the applicant’s explanations for his extended period of non-enrolment or his evidence about his future study justified granting the applicant any additional time to become enrolled.
Conclusion
Given the above findings, the Tribunal finds that the criteria in cl.500.217 of Schedule 2 to the Regulations for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Ison
Senior Member

[2020] AATA 6174

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction