Khatri (Migration)

[2018] AATA 4235

Khatri (Migration) [2018] AATA 4235 (20 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ishwor Khatri

CASE NUMBER:  1618483

HOME AFFAIRS REFERENCE(S):           BCC2016/3023115

MEMBER:Justin Owen

DATE:20 September 2018      

PLACE OF DECISION:  Sydney

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

Statement made on 20 September 2018 at 3:33pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – earthquake in home country – ceased study – significant period of breach – studied lower level course – mental health claims – failure to recommence study – awareness of visa conditions – 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 31 October 2016 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 applicant is a national of Nepal born 23 January 1994.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 17 January 2014 and was subject to condition 8202.  On 3 October 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course of study between the dates of 24 August 2015 and 10 October 2016.  The applicant responded to the NOICC on 17 October 2016.  On 31 October 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202(2)(a) of the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 10 September 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. 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).

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

9. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 31 October 2016. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study between the dates of 24 August 2015 and 10 October 2016.  The applicant stated to the Tribunal that he had enrolled in June/July 2015 for one semester in a Bachelor of Professional Accounting but agreed he was not enrolled between 24 August 2015 and 10 October 2016. 

10. The delegate’s decision record states that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 3 October 2016 and the invited the applicant to respond in writing. The applicant responded to the NOICC on 17 October 2016.  The delegate’s decision the applicant provided stated that the applicant did not dispute that there were grounds for cancellation. 

11. In his response to the NOICC on 17 October 2016 the applicant claimed his family had high expectations for him to successfully complete his studies in Australia and have supported him financially to do so.  He claimed that he felt a great deal of pressure to meet these expectations which impacted upon his ability to study.  The applicant claimed the influence of others led to a series of poor decisions that impacted upon his enrolment.  The applicant presented the 2015 earthquake in Nepal as a reason for not maintaining his enrolment.  He presented mental health issues as a reason for not maintaining his studies and presented a psychologist report dated 11 October 2016.  The applicant advised that he had at that time enrolled in a Diploma of Business Accounting and had a valid Certificate of Enrolment dated 10 October 2016.  The applicant stated, as outlined in the delegate’s decision he provided the Tribunal, that he intended to recommence his studies.

12. The applicant has not made any further written submissions to the Tribunal.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between the dates of 24 August 2015 and 10 October 2016.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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.’

15. The Tribunal acquired an updated Provider Registration and International Student Management System (PRISMS) record dated 3 September 2018. (D1, Folio.29).  The Tribunal put this information to the applicant under s359A and invited him to comment on or respond to the information.  The Tribunal provided the applicant with the particulars of the information, namely the PRISMS record that stated all the courses he had previously been enrolled in had been cancelled and he was no longer enrolled in any registered course.  The Tribunal told the applicant the PRISMS record stated that his Diploma of Business Administration had been cancelled on 6 October 2017, his Bachelor of Professional Accounting on 31 December 2017 and his Bachelor of Information and Communication Technology on 31 December 2016.  The Tribunal offered the applicant the opportunity to contact his representative and seek advice on how he wished to proceed.  The Tribunal adjourned the hearing whilst the applicant contacted his representative. After the hearing resumed the applicant stated he wished to comment on or respond to the information now, at the hearing.

16. The applicant responded to the information put to him under s359A at the hearing.  He said to the Tribunal that after one year at the University of Tasmania studying there was an earthquake in Nepal.  He said his family home had been damaged and family members injured.  He said at the time he was quite frustrated and his study was not going well.  He said by then he was studying accounting.  He said that his family at that time had been having problems supplying him money between April 2015 and 2016.   The applicant said he couldn’t return to Nepal at that time to show his face and ask for money.  The applicant said that he had a girlfriend who offered to marry him and help him financially.  He said that she however left him in February 2016.   The applicant said he slowly stopped studying and ceased around July 2015.  The applicant said he then received the NOICC and asked his representative for advice.  He said the representative told him to enrol in a course at Pacific College in a Diploma of Business Administration so as to meet the criteria for the visa.  The applicant said that he didn’t notice at first that he actually needed to be enrolled in a Bachelor degree.  He said after four or five months he realised that the Diploma course would not meet the requirements of his specific visa subclass.  The applicant said that he decided then to leave the Diploma and didn’t pay his fees.

17. The applicant said he had not been enrolled for financial reasons, the knock-on effects of the earthquake in Nepal in 2015 and the stress of facing his parents when he hadn’t successfully completed his studies.  The Tribunal asked the applicant what other reasons he was not enrolled for such a period of time.  The applicant said he had thought of moving to a cookery course as it was easy.  He said he hadn’t because of the issues around the requirements of his specific visa subclass had precluded him from doing so.  He said that he had even come close to suicide.  He said that his visa was already cancelled and he had not seen his parents for four and a half years.  He said that they continued to send him money and he was telling them that he was continuing to study.  He expressed regret as to what had happened and said that if he got his visa back he could study and return to Nepal to see his parents in a few years. 

18. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia.  The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled between 24 August 2015 and 10 October 2016.  The Tribunal considers the breach of condition 8202(2) to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa.

19. The applicant stated that the purpose for his travel and stay in Australia was for study.  He said there were no other purposes.  The applicant said that he had been a good student in Nepal but he had found the education system different in Australia.  He said the main reason was to achieve his goals and get a good job in Nepal.  Based upon the evidence of his significant period of non-enrolment, the Tribunal is of the view that the significant period of time the applicant has spent in Australia has not been for the purpose of study.   The Tribunal finds that between 24 August 2015 and 10 October 2016 the applicant was not fulfilling the purpose of his travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.  The applicant admits that he has not been enrolled in any course of study for 2018.  The applicant admitted to the Tribunal that he only enrolled again in a course of study in 2016 after receiving the Department’s NOICC.  The Tribunal notes that the applicant has failed to successfully complete any of the courses of study he has enrolled in from 2015 until the present day.   Given the applicant’s actions in failing to fulfil the purpose of his visa for a significant period of time, the Tribunal weighs this factor in favour of cancelling the visa. 

20. The Tribunal asked the applicant if he ever looked at applying for another visa whilst in Australia.  He said that after his Student visa was cancelled he had a girlfriend with Permanent Residency who offered to help him.  He said he then had another girlfriend who offered to marry him – intimating to help with visa purposes.  The applicant said he had no interest in that, it was a suggestion from his then girlfriend.  His purpose in Australia was to study.  On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.    

21. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for almost fourteen months between 2015 and 2016 to be substantial.  The Tribunal considers the applicant’s non-compliance with his visa conditions to be considerable.  The Tribunal has taken into account the applicant’s oral evidence concerning his enrolment in the Diploma course in 2016 and 2017 and his mistaken belief that that would meet the conditions of his visa.  The Tribunal is prepared to accept that this might be the case, but notes the obligation remains with the applicant to ensure he is aware of and meets the conditions of his visa.    The Tribunal notes that the applicant after becoming aware of the deficiencies with his Diploma course of study subsequently failed to attempt to enrol in a further course of study.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

22. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled.  The Tribunal asked the applicant what hardship the cancellation of the visa would cause him.  He said he had not seen his parents in four and a half years.  He said he wants to return to Nepal but his parents still think he is studying.  The applicant said if he was granted a new visa he could study and complete a course in two and a half years and then return to see his parents.  The main hardship the applicant in relation to himself and his family appeared to be the embarrassment and shame of having to return to Nepal and concede to his parents that he was not studying as they have assumed now for several years.  The applicant stated to the Tribunal that in terms of hardship to his family, his parents still think he is studying and is asking when he was coming home.  Any return to Nepal without the successful completion of his studies would cause them much sorrow and disappointment.  The Tribunal accepts that returning to Nepal in such circumstances will be difficult for the applicant and his family but notes that ultimately this long-term subterfuge with his family concerning his studies was the decision of the applicant.  The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

23. The applicant told the Tribunal he has no children and does not have a wife or spouse.  He said he had a family member – his father’s sister’s daughter whose home in Ashfield he was currently living in in Australia.  The applicant said that he was staying with his family member and her husband.  He said that he stayed with them and their children.   The applicant said he was not paying rent with his family.  The applicant provided no real insight into his life with his family members in Australia beyond him assisting a little with the children. The Tribunal weighs this factor neither in favour nor against cancelling the visa.   

24. The Tribunal furthermore notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.

25. The Tribunal has considered the circumstances in which the ground for cancellation arose. The Tribunal has taken into consideration the applicant’s oral evidence and his previous written submission to the delegate concerning the circumstances surrounding the cancellation. The applicant claims his family have high expectations for him in terms of his studies and have financially supported him through their nightclub/restaurant business.  The Tribunal. He has claimed he felt pressure and this impacted on ability to study.  The Tribunal considers an expectation by the applicant’s family that he is successfully undertaking his studies to be an entirely reasonable proposition, especially given that they continue today to financially support the applicant.  The Tribunal weighs this factor in favour of cancelling the visa.

26. The applicant in his oral evidence and in his written submission of 2016 claims the earthquake in Nepal in 2015 and its impact upon his family as undermined his ability to study.  The Tribunal accepts that this was a challenging and worrying time for the applicant and his family.  Nevertheless the family circumstances of the applicant do not negate the fact that he breached the condition of his visa by not being enrolled in a registered course of study.  The Tribunal weights this factor in favour of cancelling the applicant’s visa. 

27. The applicant in oral evidence to the Tribunal said he enrolled in a Bachelor degree in accounting but was ‘hopeless’.  He said that at that time he had no job and couldn’t study.  He said he was troubled by what to do and how could he show his face to his family.   The applicant agreed that he had not been enrolled in a course for the entire year of 2018.  The applicant also agreed that he had not completed any of the courses he had been enrolled in whilst in Australia.  The applicant said that he could probably finish the Diploma he was previously enrolled in in 2018. 

28. The Tribunal notes the applicant’s previous claim in 2016 concerning mental health issues as a reason for not maintaining his enrolment.  The Tribunal noted to the applicant that in 2016 he had claimed mental stress and submitted a psychologist report.  The Tribunal asked the applicant about this claim.  The applicant said at that time it had been the truth.  The applicant said that he met with his psychologist two months after his report.  He said that he did not meet with the psychologist again after that time.  He said that he had not had any further psychological treatment since 2016.  The Tribunal notes that the applicant did not seek assistance for these mental health claims until after receiving the NOICC.  The Tribunal notes that the applicant has stated that he has not sought further psychological treatment apart from visiting his psychologist two months after the lodgement of the psychologist’s report to the Department in 2016.   The Tribunal notes his claim that at one point he thought about suicide and his more general claims of stress.  The Tribunal accepts that the applicant may at some time have felt some stress given his situation but considers his claims to be somewhat vague and lacking in substance. There is no corroborative evidence before the Tribunal as to any other treatment the applicant has either sought or received for his mental health beyond the psychologist in 2016.   On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

29. The applicant admitted in oral evidence that he was aware that a condition of his visa was that he remained enrolled in a registered course.  He agreed that the letter he received from the department with his visa had outlined the conditions and the consequences of non-compliance.    The applicant said he first became aware that his enrolment had ceased and was not meeting the criteria and conditions of his visa around February 2016.  The applicant admitted that he knew that his lack of enrolment affected his ability to meet the criteria for his visa.  The applicant said that he enrolled in another course after he received the NOICC from the Department.  He said that this was the advice he received from his representative.  He said that the representative had recommended he enrol in the Diploma course.  The Tribunal on the evidence before it considers that the applicant was well aware of his obligations and the consequences of non-compliance with the conditions of his student visa.  On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.   

1. The applicant said to the Tribunal that his representative never explained to him that he needed to remain enrolled in an appropriate course to meet the ongoing requirements of his visa.  He said that the representative told him he could meet the criteria via a Diploma course.  The applicant said he ceased studying for this Diploma after discovering it did not meet the requirements for his visa subclass. The applicant said he successfully completed one semester of the Diploma of Business Administration course.  He said he then realised it was useless as he needed to enrol in a Bachelor degree to meet the criteria for his visa.  He said he paid half of his fees.  The applicant said his representative had told him to enrol in the Diploma.  The applicant said he still has the same representative today.    The Tribunal is prepared to accept that this might be the case, but notes the obligation remains with the applicant to ensure he is aware of and meets the conditions of his visa.    The Tribunal notes that the applicant after becoming aware of the deficiencies with his Diploma course of study subsequently failed to attempt to enrol in a further course of study.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

2. The applicant in oral evidence said that he wished to finish his study and hoped he could remain, study for two and a half years and then return to Nepal having successfully studied.  He expressed hope for this opportunity.  If he could not stay in Australia then he would have to go somewhere far from his family to finish his study.  Given his failure to recommence his studies – despite continuing to enjoy the financial support of his family – the Tribunal is not at all confident that the applicant in the circumstances will recommence studies that meet this visa’s stated criteria.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.   

3. The Tribunal notes from the applicant’s original written submission of 17 October 2016 to the delegate that the applicant blamed homesickness and the difficulty of the Bachelor of Information and Communication Technology for failing to remain enrolled in his first degree.  The Tribunal is prepared to accept both of those scenarios.  The Tribunal notes however that the applicant at that time when ceasing his studies breached condition 8202.  He did not however attempt to rectify this until enrolling in the Bachelor of Professional Accounting about 14 months later – a few days after receiving the NOICC from the Department.  The Tribunal considers that the applicant had ample opportunity to rectify his enrolment at that time and considers he only did so after receiving communication concerning his impending cancellation.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.     

4. The Tribunal notes that the ground for cancellation arose due to the fact the applicant ceased enrolment with a registered education provider and has subsequently failed to rectify his enrolment status in an adequate time.  The applicant on the evidence in the decision record had failed to adequately rectify his enrolment situation for almost fourteen months.  The most recent PRISMS record put to the applicant under s359A states that he was last enrolled in any course in 2017 and every course he has enrolled in has been cancelled. 

5. Given the applicant was a direct party to his enrolment; the Tribunal is of the opinion that on the evidence he would have been aware that he had ceased enrolment with a registered education provider.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  The Tribunal is of the opinion that the applicant would have been well aware that his student visa contained condition 8202 which required him to remain enrolled in a registered course.  The Tribunal is of the firm view that the applicant would reasonably have been aware that his failure to remain enrolled with a registered education provider for almost two years would have an impact upon his eligibility to continue to hold his student visa.  On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

6. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The Tribunal pointed out to the applicant that he had obligations to inform the Department when his circumstances, such as his enrolment, changed.  The applicant said that he did not do so. He said he had had no communication with the Department.  There is no other evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

7. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The Tribunal notes from the decision record that there is no information before the Department which indicated that any other person currently holds a visa because the applicant held his student visa. The applicant stated that he is not married and has no spouse. He says he has no children. There is no evidence or claim made of dependents. The applicant said that there is none else holding a visa because of his 573 visa. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

8. The Tribunal has considered whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation of the applicant’s visa.  There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

9. On the evidence before it the Tribunal considers the applicant’s breach of condition 8202 of their student visa to be substantial.  The Tribunal considers the initial near 14-month period outlined in the decision record that the applicant failed to be enrolled in a registered course of study to be significant. The Tribunal has noted the applicant’s oral evidence and his previous written submission to the delegate concerning his failure to meet the conditions of his visa and the circumstances of the breach.  The Tribunal does not consider these factors in any significant way constitute a reason for the Tribunal to exercise its discretion and not cancel the visa.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

    Justin Owen
    Senior 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.