Khatri (Migration)

[2019] AATA 4092

Khatri (Migration) [2019] AATA 4092 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. Marquis Khatri

CASE NUMBER:  1828664

HOME AFFAIRS REFERENCE(S):           BCC2018/1584686

MEMBER:P. Adami

DATE:3 September 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 03 September 2019 at 5:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period of non-enrolment – non-payment of fees – responsibility to maintain enrolment – failure to take proactive steps – 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. The applicant is a 26 year old male citizen of Nepal. He seeks review of a decision dated 20 September 2018 made by a delegate of the Minister for Home Affairs 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 applicant failed to maintain enrolment in a registered course in breach of condition 8202(2) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The delegate considered that the factors against cancellation did not outweigh those factors in favour, and cancelled the visa. The applicant provided a copy of the delegate’s decision to the Tribunal. 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. On 28 June 2019, the Tribunal wrote to the review applicant and invited the applicant to appear before the Tribunal to give evidence and present arguments at a hearing scheduled on 19 July 2019. By way of letter dated 5 July 2019, the applicant declined the offer of the hearing stating that he suffered from liticaphobia as he is “very shy and afraid to see anything in court”.[1] The applicant essentially stated that he relied on his 5 July 2019 letter as a submission in support of his application, and the Tribunal treats it as such.

   [1] Liticaphobia is the fear of lawsuits. Liticaphobia is also called Litigaphobia. (checked 3 September 2019)

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.

6. The Tribunal has reviewed and considered:

   a)The delegate’s decision record dated 20 September 2018;

   b)The applicant’s submission in support- comprised of his letter dated 5 July 2019;

   c)A letter from Western Institute of Technology dated 21 September 2017 filed by the applicant with the Tribunal;

   d)Relevant legislation contained in the Act and the Regulations.

7. Apart from those documents referred to at 6(a)-(c), the applicant has not provided any further documents or information to the Tribunal.

   Did the applicant comply with Condition 8202?

8. 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).

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

10. As set out in the delegate’s decision, the Provider Registration and International Student Management System (PRISMS) indicated that the applicant was not enrolled in a registered course of study since 22 October 2017 until the date of cancellation- the date of the delegate’s decision of 20 September 2018.

11. In his 5 July 2019 letter to the Tribunal, the applicant conceded that he had not been enrolled writing, “My case was simple, I wasn’t enrolled in any educational provider, so my visa got cancelled because the condition of visa was breached.” [original] The applicant goes on to explain his circumstances and reasons regarding becoming unenrolled which are considered below.

12. It follows that at the time of the delegate’s decision, on the evidence before the Tribunal, the applicant was not enrolled in a registered course for the period 22 October 2017 to at least 20 September 2018. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

14. In the delegate’s decision of 20 September 2018, the delegate notes that the applicant in his response to the Notice of Intention to Consider Cancellation (NOICC) indicates he wished to stay in Australia to continue his studies. The intention to complete his studies in Australia is further stated by the applicant in his letter of 5 July 2019 to the Tribunal.

15. Given the applicant’s visa was cancelled on 22 October 2017 and that at the date of the delegate’s decision, the applicant did not hold a current or future enrolment in a registered course of study with an education provider, the delegate gave minimal weight to the applicant’s stated intention to complete his studies.

16. The applicant’s 5 July 2019 letter does not address whether he has a compelling need to remain in Australia. The Tribunal notes that the applicant was studying painting and decoration at the Vocational Education and Training Sector (VET) level when his visa was cancelled.

17. Given the bare nature of the applicant’s desire to continuing studying in Australia and lack of evidence regarding a compelling need, the Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.

    The extent of compliance with visa conditions

18. The delegate considered the applicant’s response to the NOICC that he unintentionally did not comply with condition 8202 of his student visa, and gave this factor minimal weight because the applicant had been unenrolled for 11 months. The delegate considered this was a reasonable period of time to take action to remedy the non-enrolment or to make plans to depart Australia. The delegate also noted that since the applicant was granted a student visa on 13 December 2016, he had only studied for a period of 6 months. 

19. The Tribunal is unaware of any other conduct breaching other visa conditions, and the Tribunal considers the applicant has only breached condition 8202. The period of non-enrolment is significant, and the Tribunal considers that although the breach of visa conditions is limited to condition 8202, condition 8202 is intended to reinforce the intention of the student visa, so that holders are able to enter and remain in Australia for the purposes of study.

20. The Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

21. The delegate in their decision states that the applicant did not provide any information relevant to this consideration, and was therefore unaware of any specific hardship that may be caused to the applicant or his family members. The delegate goes on to consider that there might be financial hardship should his visa be cancelled, and that the applicant may be able to apply for a Bridging Visa E so that he could remain in Australia temporarily to finalise any outstanding matters that may exist. The delegate noted that they had no evidence of hardship to any family members.

22. As a result, the delegate concluded that little weight should be given to this consideration in favour of the applicant.

23. The applicant in his 5 July 2019 letter does not address the issue of hardship to himself or to any family member. The Tribunal is not in a position to weigh any hardship given the lack of evidence in relation to this factor. The Tribunal gives this factor no weight in favour of the applicant’s visa not being cancelled.

    The circumstances in which the ground of cancellation arose- whether there are any extenuating circumstances beyond the visa holder’s control that lead to the grounds existing

24. The delegate in their decision notes the applicant’s response to the department regarding this factor. The delegate notes the applicant claimed the education provider (Western Institute of Technology) failed to inform the applicant that his Confirmation of Enrolment (COE) had been cancelled, and failed to assist in re-enrolling the applicant; and that the applicant claimed that he tried several times to obtain enrolment at difference education providers but he had difficulty in doing so.

25. The delegate in their decision gave this consideration minimal weight in the applicant’s favour because:-

    A) The applicant did not contact the department before he become un-enrolled or seek advice as to what might happen should he become unenrolled.

    B) There was no evidence of extenuating circumstances beyond the applicant’s control regarding his failure to stray enrolled, and if there such circumstances, the applicant did not apply for a deferral of study.

    C) The applicant did not obtain permission from the Western Institute to transfer to another provider.

    D) The applicant did not appeal the Western Institute’s decision to cancel the applicant’s enrolment or seek a review of same by the Overseas Student’s Ombudsman for example.

    E) There was no evidence that the Western Institute ceased trading and the applicant was therefore unable to obtain a new enrolment.

    F) According to PRISMS records, the applicant’s enrolment was cancelled due to the non-payment of fees, and despite the applicant claiming he was not informed he was un-financial, he admitted that he was aware he needed to finalise payment for his studies. There was no evidence that the applicant lodged an appeal or sought the assistance of the Western Institute to resolve the issue.

    The Tribunal has no reason to dispute the factual findings of the delegate in this regard, and accepts them.

26. In his 5 July 2019 letter to the Tribunal, to summarise, the applicant emphasises the circumstances of his becoming unenrolled as the central factor for the Tribunal’s consideration of his application for review of the delegate’s decision. The applicant sets out the following circumstances explaining how the ground for cancellation arose, and the reasons why his enrolment became cancelled. To summarise, the applicant explains:-

    A) When he arrived in Australia he had no idea how and whom to consult about his education. The applicant states he followed the advice of a consultant who misdirected him about what his plans should be.

    B) The applicant refers to a letter he received from the Western Institute dated 21 September 2017 in which they state a decision is pending regarding the future of the institute, but which assures that the day to day operations of the institute are not affected.

    C) The applicant states he never received a letter from the institute noting his enrolment had been cancelled. The applicant also states that he and most other students fear the Department.

    D) The applicant states no one knows all the conditions and laws attached to their visa and essentially students need a second chance as they can learn from their first mistake, further, sometimes people don’t always choose the right option when making a decision.

    E) Overseas students are expected to study what they enrol in without the freedom of Australian born students to change. Also, coming to Australia opened the applicant’s mind to other possibilities which developed his thinking about what he wanted to study. This must be considered because as an overseas student he thinks in a different way and does thing differently, and as such allowance must be made for this.

    F) The applicant states he will not make the same mistake again. He hopes he has cleared any emotional fluctuations maturing, and that life is a journey from which people make mistakes and learn. People are different and have different perspectives, and the applicant hopes the Tribunal can understand his position. The applicant concludes, “I am innocent.”

27. The applicant also lists in dot point form factors, some of which he more fully articulated and set out above, which explain why the Tribunal ought to set aside the delegate’s decision. The applicant lists [original]:-

    ·I never received any confirmation of my cancelled COE from my education provider.

    ·My education provider was itself going to shut.

    ·I was unaware of lots of conditions, but I assure now I do understand the condition and criteria of my visa.

    ·It took me a lot of time to find a right educational consultant.

    ·Couldn’t took any right decision because was manipulated to different aspect where it was beneficial to other.

    ·Never had any intention to breach any condition.

    ·Never knew we can contact department for anything we wish to know.

28. The Tribunal understands the thrust of the applicant, but notes that it was the applicant who was obliged to ensure that he was enrolled in a registered course. The Tribunal expects that a genuine student in the applicant’s circumstances would have been more proactive about maintaining the correct status as an international student in Australia. The applicant suggests that when he arrived to study in Australia that he was not sure which area of focus he should concentrate his studies on. The applicant states that he met with a consultant and that the consultant manipulated him, and after some time he engage a new consultant.

29. The Tribunal further considers that the applicant ought to have had a firmer view about what he wished to study as an international student in Australia and not relied so heavily on a consultant, given the applicant is presumed to have intended to enrol in a course which fitted his future career plans. Even if he was initially unsure about which path of study to take, having engaged and consulted with the consultant, the Tribunal considers that the applicant would have formed a view most in keeping with the applicant’s own desires and wishes.

30. The applicant states that the uncertainty about the institute’s future affected his studies. The delegate notes that at the date of their decision, the Western Institute was still operating. The Tribunal considers that whilst the correspondence of 21 September 2017 from the Western Institute may have provided uncertainty, the correspondence did not waive or excuse the non-payment of course fees. The delegate notes that the applicant did know of his obligation to finalise payment of his fees, and the Tribunal has no basis to consider otherwise.

31. The applicant suggests that he did not receive correspondence that his enrolment had been cancelled. Given the delegate’s finding that the applicant knew of his financial obligation to pay for his studies, the Tribunal considers that the applicant knew or should have known that non-payment of fees was likely to result in his enrolment being cancelled, even if he never received a formal letter expressing same.

32. The applicant also states that he did not know that as an international student he could contact the department regarding his enrolment. The Tribunal considers that, should the applicant have felt that he did not receive the proper support and/or information from his education provider, the applicant knew or should have known to contact the department to express his concerns or sought to ensure that he had done all he could to maintain his enrolment. The Tribunal considers the applicant’s claim in his letter that 95% of overseas students have a fear of the department, and hence engage consultants (some of whom do not assist their clients), to be a wild and unsubstantiated.

33. The applicant strongly emphasised that he has matured and learnt from his non-enrolment experience. The Tribunal considers that the applicant was 25 years old at the time his visa was cancelled, and despite coming from Nepal, was not so young and immature such that he could not or should not have allowed himself to become unenrolled by reason of the non-payment of fees, for at least 11 months. The Tribunal considers that these facts weigh heavily in favour of cancelling the applicant’s visa.

34. The Tribunal considers that the applicant did not take the steps to protect his enrolment such as seeking a deferral, seeking further time to pay, or seeking advice from the Department about his options that a genuine student ought to have made. As a result, the Tribunal gives this factor significant weight towards the applicant’s visa being cancelled.

    Past and present behaviour of the visa holder towards the Department      

35. There is no relevant evidence before the Tribunal in relation to the applicant’s past and present behaviour towards the Department other than the applicant responded to the NOICC. The delegate gave this factor some weight in the applicant’s favour as there was no evidence that the applicant had been uncooperative with the Department or department staff- the Tribunal accepts this.

36. The Tribunal gives this factor minimal weight against the applicant’s visa being cancelled given the applicant is doing what all applicants should do.

    Whether there would be consequential cancellations under s140

37. There is no information before the Tribunal that there are other persons whose visa would or may be cancelled under s140 of the Act. The Tribunal considers this factor is not relevant in determining the applicant’s application.

    Whether there are mandatory legal consequences of a cancellation; whether cancellation would result in the visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Minister’s intervention

38. The delegate in their decision record noted that the cancellation of the applicant’s visa may result in the applicant becoming an unlawful non-citizen, and that the applicant will need to apply for a Bridging Visa E to regularise his visa status. Should the applicant be an unlawful non-citizen the applicant may be liable to detention and removal under the Act should he not voluntarily depart Australia.

39. The delegate also found the applicant will become subject to s48 of the Act which will result in the applicant having limited options to apply for further visas in Australia. The applicant would also be subject to the Public Interest Criterion 4013 with the effect that he may not be granted a temporary visa for a period of 3 years from the date of the cancellation.

40. The Tribunal finds that there are mandatory legal consequences, as set out in the delegate’s decision, which would impact the applicant should he not voluntarily return to his home country. The Tribunal considers that this factor weighs in the applicant’s favour not to cancel his visa. However, given these are the intended consequences when a visa is cancelled, the Tribunal places little weight on this factor towards the visa not being cancelled.

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

1. The delegate noted in their decision record that according to department records, the applicant does not have any children in Australia whose interests could be affected. As such, the delegate concluded this consideration does not apply to the applicant.

2. There is no information before the Tribunal that any international obligations would be breached as a result of visa cancellation. As a result the Tribunal considers this factor not to be relevant in the determining the applicant’s application.

   Any other relevant matters

3. As noted above, the applicant raised in his submission that he did not intend to breach his visa conditions. The Tribunal does not consider that this inadvertence is relevant in determining the applicant’s application.

4. Having carefully considered the circumstances of the applicant and the material before the Tribunal, and weighing it with reference to the above considerations, 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.

   P. Adami
   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.