KOIRALA (Migration)

[2019] AATA 1065

KOIRALA (Migration) [2019] AATA 1065 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pramesh KOIRALA

CASE NUMBER:  1729101

HOME AFFAIRS REFERENCE(S):           BCC2017/3682555

MEMBER:Mr S Norman

DATE:14 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 March 2019 at 12:00pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – concerns regarding meaningful participation at prior hearing – failure to attend re-scheduled hearing – ground for cancellation – convicted of an offence against a law of a State – consideration of discretion – lack of academic progress – not a genuine student – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 November 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 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(g) of the Act, on the basis that the applicant had been convicted in NSW of various criminal offences. 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 3 December 2018, the Tribunal sent the applicant a hearing invitation letter (issued by email) advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 20 February 2019. The applicant had attended that hearing but though he did not request an interpreter, the Tribunal was not satisfied it should proceed to hear his case at that time (explained below). The Tribunal then advised the applicant it proposed to re-schedule the hearing. On 21 February 2019, the Tribunal sent the applicant a hearing invitation letter (issued by email) advising that a hearing had been scheduled for 14 March 2019, and invited him to attend. Two SMS (hearing reminder) texts were sent to the applicant shortly prior to the re-scheduled hearing (7/03/2019 & 13/03/2019). No response was received.

4. In its abovementioned letter of 3 December 2018, the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. 

5. Though the applicant was notified of the re-scheduled hearing in the same way as he had been notified of the 20 February 2019 hearing date, the applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was re-scheduled (being on 14 March 2019). In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Hearings

8. As noted above, the Tribunal scheduled a hearing for this matter for 20 February 2019 (hereafter the ‘prior hearing’). After commencing the prior hearing, the Tribunal did not proceed with that hearing and the applicant was subsequently invited to a hearing on 14 March 2019. For the prior hearing, the applicant did not request an interpreter. At the commencement of the prior hearing, the Tribunal put some introductory remarks to the applicant. The applicant appeared to be having difficulty understanding what was then being said (the Tribunal was not speaking loudly but the applicant was a very few feet away so I did not think that should impede him being able to understand what was being said to him). When then asked to repeat what had been said to him by the Tribunal, the applicant did not appear to have a meaningful understanding of what the Tribunal was saying. The Tribunal is not suggesting that an applicant should be able to repeat verbatim what was being said to them at the commencement of a hearing, but they should be able to materially repeat the ‘gist’ of what was said (and the Tribunal was not satisfied this had occurred).

9. The applicant was adamant the prior hearing should proceed, but the Tribunal understands it must reasonably ensure that an applicant has been given a real opportunity to put evidence and submissions on behalf of their case, including at a hearing. In this case, the Tribunal was not satisfied the applicant would be given such an opportunity so I decided to re-schedule the hearing and request an interpreter be present at the next hearing.

10. Be that as it may, given the applicant was so adamant to proceed with the prior hearing, the Tribunal was able to re-arrange its schedule and invite the applicant to a hearing on 14 March 2019 (approximately three weeks after the first hearing).

    Does the ground for cancellation exist?

11. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) of the Regulations is relevant. That stated:

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)); …

12. On 12 May 2016, the applicant was granted a Subclass 573 Student visa (expiry date 15 March 2018). By Notice of Intention to Consider Cancelling (NOICC) that visa dated 3 November 2017, the applicant was advised that the NSW Police had advised the Department that the applicant committed multiple offences on 5 January 2017. Further that:

    ·on 6 October 2017 in the Newtown Local Court, the applicant was convicted of one count of Commit Act of Indecency with Person 16 years or over - sentenced to a s.9 Bond for 12 months, and a $200 fine

    ·on 6 October 2017 in the Newtown Local Court, the applicant was convicted of one count of Assault with Act of Indecency - sentenced to a s.9 Bond for 12 months, and a $200 fine

    ·on 6 October 2017 in the Newtown Local Court, the applicant was convicted of one count of Assault with Act of Indecency - sentenced to a s.9 Bond for 12 months, and a $200 fine

13. The applicant was then advised that in these circumstances, his visa may be cancelled under s.116(1)(g), relying on a prescribed ground as set out in r.2.43(1)(oa).

14. In responding to the NOICC, the applicant requested his visa not be cancelled as this would prevent him from continuing his studies;[1] though the Tribunal notes the expiry date for the applicant’s Student visa was 15 March 2018. The applicant also said he had a skin infection on his hand[2] and he provided a prescription;[3] and he provided a work reference.[4]

    [1] Department – folio 13.

    [2] Department – folio 17.

    [3] Department – folio 15.

    [4] Department – folio 16.

15. That being said, based on the evidence before it, the Tribunal is satisfied that grounds exist to cancel the applicant’s Student visa.

16. Based on the evidence set out above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) of the Act, exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. 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’.

18. Regarding the purpose of the applicant’s travel to and stay in Australia, he had been granted a TU subclass 573 Student visa for the purpose of undertaking a Masters degree in Australia. However, and as noted by the delegate, according to the Provider Registration and Student Management System, and noting the period of the initial visa which had a validity of two years, the applicant had completed a single one or two month English language course. Two enrolments for Masters degree courses were cancelled for non-commencement of studies and one for unsatisfactory course progress after 15 months of study.

19. The delegate (and now the Tribunal) also noted that at the time of their decision, the applicant had undertaken studies in a Masters degree from July 2016 to April 2017 but then had “dropped out”. He also had a five month period where he did not study (from April to September 2017). As also noted by the delegate (and now the Tribunal), there were considerable periods where the applicant had not studied and it appeared he had spent substantial periods of time not enrolled in a registered course. The evidence indicated he had also changed education providers without completing enrolled courses. The applicant did say he wished to continue studies in Australia. However, based on the evidence before it, the Tribunal is not satisfied the applicant’s present intention in remaining in Australia is for the purposes of study.

20. Regarding the extent of compliance with visa conditions, the applicant failed to maintain adequate study progress or enrolment, and he had been convicted of criminal offences (as set out above). The Tribunal believes these breaches are significant.

21. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, by email of 6 November 2017,[5] he said he was married and his wife had returned to Nepal as she was not well; that he ‘felt bad’; and that he was ‘staying alone’ in Australia; and that he wished to continue his studies in Australia. The delegate noted the applicant had provided a Confirmation of Enrolment letter from the Torrens University for a Master of Professional Accounting course for the period 18 September 2017 to 1 September 2019 (though no evidence of course progress was provided). That being said, the Tribunal understands that any course credits the applicant had acquired in Australia might be able to be transferred to education providers outside Australia.

    [5] Department – folio 19.

22. Next, the Tribunal accepts the applicant was lonely in Australia after his wife returned to Nepal, and that he had a skin infection (presumably sometime prior to the Tribunal hearing). The Tribunal also notes the applicant said he wished to continue his studies in Australia. However, given his apparent lack of any material progress in his studies, and given all other matters accepted herein, the Tribunal is not now satisfied the applicant is a genuine student.

23. Next, if the applicant’s visa is cancelled he may lose work rights in Australia, though he could presumably work outside Australia. The applicant also provided evidence of his court costs and fines;[6] though same are commonly borne by persons found to have breached the criminal law in Australia.  

    [6] Department – folio 20.

24. Next, the ground for cancellation of the applicant’s visa is that he has been convicted of criminal offences in Australia. The Tribunal believes the breach to be significant.

25. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal.

26. Next, the Tribunal notes that if the applicant’s visa is cancelled, the dependent Student visa of his wife would be cancelled. However, the wife had departed Australia in September 2017 and the Tribunal has no evidence she had returned at this time. The Tribunal also has no evidence that the cancellation of her visa would have any impact on her.

27. The Tribunal notes that if the applicant’s visa is cancelled, he would be liable to detention under s.189 and removal under s.198 of the Act. However, the Tribunal has no evidence that has satisfied it the applicant would be subject to indefinite detention. Further, he may also temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing.

28. The Tribunal notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.

29. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. For instance, the Tribunal has no evidence the applicant would be prosecuted in Nepal for any offence he was convicted for in Australia.

30. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

31. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mr S Norman
    Member