Kharel (Migration)

[2019] AATA 5729

Kharel (Migration) [2019] AATA 5729 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sagar Kharel

CASE NUMBER:  1910489

DIBP REFERENCE(S):  BCC2019/186431

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 November 2019 at 2:25 pm (VIC time)

DATE OF WRITTEN RECORD:                17 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 December 2019 at 10:43am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – poor life management – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 April 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 27 November 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision dated 15 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 student visa under section 116 subparagraph 1B of the Migration Act 1958. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 subsection 2 paragraph (a) in that he was not enrolled in a registered course. The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the tribunal today to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The issue in the present case is whether the applicant, as the holder of the student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition under section 116 of the Act, the visa may be cancelled.

5. Condition 8202 as it applies in this case relevantly requires that the applicant be enrolled in a registered course.  In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.  The applicant accepted that he had breached condition 8202 as he was not enrolled in a registered course from 25 May 2018.  He stated that at that time he had been enrolled in a Diploma of Information Technology which commenced on 5 February 2018, and that he was last enrolled in that course on 25 May 2018.  He stated he has only recently re-enrolled in the course in September 2019.  Accordingly, the tribunal is satisfied that the applicant has breached condition 8202.

6. Having found that the applicant has not complied with the condition of the visa, the tribunal must consider whether the visa should be cancelled.  There are no matters specified in the Act or regulations that must be considered in the exercise of this discretion.  The tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual, also known as the PAM3 general visa cancellation powers. 

7. The applicant is a 21-year-old Nepalese national.  His evidence was that he came to Australia to study a package of IT courses.  After he finished high school he applied for that package course.  That course included a Certificate III and IV of Information Technology Networking, and also a Diploma of Information Technology Networking.  There was no evidence presented at the hearing, nor in the Department’s file, that the applicant came to Australia for any purpose other than to study.  The tribunal gives this weight against cancelling the visa.

8. The applicant gave evidence that when he came to Australia for his studies, he found the certificates III and IV easy, but he found the pressure of the Diploma course was a lot.  At the same time, his sister was getting married and he was feeling homesick.  He said he only found out about his sister’s wedding four days prior to it happening and he was unable to get leave from his studies to attend.  He said he was feeling depressed around this time and he did not continue his classes.  He last attended a class in the diploma course in around May 2018.  He said he was not too homesick or depressed, but he had just broken up with a partner and was going out a lot, drinking too much and smoking.  He did not clarify in his evidence initially what he was smoking, but in submissions made by his representative, it was clarified that he had been smoking cannabis.  When asked about this, the applicant said he was spending around $100 every ten days or so on buying cannabis.  He said he stopped smoking it around four or five months ago.

9. In relation to the going out too much, drinking and smoking of cannabis in around May 2018, he said this led to poor management of his life.  He explained that he had no one around him to consult at the time.  He said he did not see a doctor at the time about his depression.  He said that depression is not common in his family and he felt embarrassed. 

10. The applicant confirmed that since May 2018 he has not returned home to Nepal.  He has recently enrolled in an Advanced Diploma of Leadership and Management course, which commenced in September 2019 and is due to be completed in September 2020.  There was no confirmation of enrolment provided in relation to this course, but the tribunal accepts that he is in fact enrolled in this course.  The applicant also said that at around the time when all this was happening for him in May 2018, when his friends were talking about their careers, he could not explain to anyone what he was going through.  He said now he is a lot stronger and he knows he can do his studies now.

11. His representative, Mr Charif, submitted that the applicant had successfully completed his Certificates III and IV but he had a difficulty adjusting to the diploma course.  His parents could not support him financially at the time because they had to pay for their daughter’s dowry when she was getting married.  Mr Charif clarified the smoking issue by confirming that he was not smoking cigarettes, it was other matters.  This was then raised with the applicant, who confirmed that he had been smoking cannabis.  Mr Charif said that things have settled down for him and he has got back on his feet.  He has been feeling well about everything.  There was no ability for him to prepare submissions prior to today because he has had difficulty getting in contact with the applicant up until today prior to the hearing.

12. Taking into account the evidence given at the hearing today, the tribunal considers that the factors that led to the applicant’s visa being cancelled included being homesick, drinking and smoking an illicit substance, poor life management and feeling depressed.  The tribunal does not consider any of these explanations to be beyond the applicant’s control.  If he was feeling homesick, he could have waited until a break at college to return home.  He could have reduced his drinking and smoking and focused on his studies.  This would have in turn led to better life choices and better management of himself.  As for feeling depressed, the applicant could have attended a professional, either a general practitioner or psychologist, for counselling or medication.  He chose not to do this because he felt embarrassed.  In light of the above circumstances, the tribunal gives the significant weight in favour of cancelling the visa. 

13. Aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa.  Accordingly, some evidence is given in favour of not cancelling the visa due to his general compliance with the conditions of his visa. 

14. When asked about what hardship might be caused if his visa were to be cancelled, the applicant said that the cancellation of his visa had broken him.  He really wanted to study.  His sister’s marriage back home meant that he could not ask his parents for money for his studies.  His parents were paying for his studies in Australia.  They are prepared to continue to do so.  He said that he felt bad and feels bad when his friends talk about their careers around him.  The cancellation of his visa has played on his mind and it has been difficult for him.  If he does not get to finish his studies, he said it will harm him and he will feel like a loser.  He will become depressed or have other psychological problems.  It will be hard to see others with careers if he has to return home without a degree.  The tribunal accepts that the applicant will suffer some hardship if he has to return to his home country without completing the course of study he intended on completing, and accordingly gives this some weight against cancelling the visa.

15. As noted already, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa, nor is there any evidence to suggest that the applicant has not engaged appropriately with the Department.  Accordingly, the tribunal gives this some weight against cancelling the visa.

16. As to whether there would be any consequential cancellations under Section 140, this is not applicable in this application.

17. In relation to any mandatory legal consequences if the cancellation of the visa is affirmed, the applicant gave no evidence about any legal consequences for him, nor were there any submissions made about this.  There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted, with exception, to make an onshore visa application as a result of the cancellation.  Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully he could be liable for removable and detention.  The applicant could also be precluded from making any further visa applications for a period of three years as a result of public interest criterion 4013.  The tribunal is satisfied that these consequences are intender lawful consequences of the legislation, and in the applicant’s case, do not mean that the visa should not be cancelled.  The tribunal gives no weight either for or against cancelling the visa under this consideration.

18. There is nothing before the tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligation.  The applicant had a girlfriend in Nepal but they broke up in 2018.  He confirmed that he has no children.  Accordingly, the tribunal finds that this consideration is neutral and does not weigh in support or against the cancelling of the visa.  The applicant did not give evidence about any other matter that would be relevant to the review of the cancellation of his student visa.

19. Considering the circumstances as a whole, the tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa.  Accordingly, the tribunal finds that the visa should be cancelled.

    DECISION

20. The tribunal affirms the decision to cancel the applicant’s visa. 

    Elizabeth Tueno
    Member