Maharjan (Migration)

[2020] AATA 1940

Maharjan (Migration) [2020] AATA 1940 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rabin Maharjan

CASE NUMBER:  1802679

HOME AFFAIRS REFERENCE(S):          BCC2017/4282732

MEMBER:Stephen Conwell

DATE:2 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2020 at 2:27pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – not enrolled in registered course – study difficulty and change of subject area – grandmother’s health, mother’s asylum application in another country and father’s financial difficulty – intention to return to home country or to join mother – ongoing work in probable breach of bridging visa condition – inconsistent evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 January 2018 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of his 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.

3. The applicant appeared by video before the Tribunal on 25 February 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent who was expected to participate in the hearing by telephone however numerous attempts by the Tribunal to contact him at the start of the hearing were unsuccessful.  The Tribunal had attempted to contact the representative (was overseas at the time of hearing) at the latest telephone number provided by the representative on 24 February 2020.  At the start of the hearing the applicant indicated that he had also tried unsuccessfully to contact the representative by telephone.  The Tribunal asked the applicant whether he wished to proceed with the hearing, explaining that Tribunal hearings do not require an applicant to be represented.  The Tribunal further explained that if the applicant wished to request an adjournment of today’s hearing, the Tribunal would consider that request.  The applicant indicated that he was happy for the hearing to proceed without his representative’s involvement.

5. The applicant provided a copy of the delegate’s decision with his application for review.

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. 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?

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. 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. The Tribunal notes that the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 10 January 2018 (although a typographical error in the decision record incorrectly notes the date to be 10 January 2017). The NOICC was issued to the applicant because it appeared that he t was not enrolled in a registered course of study since 15 May 2017. The applicant’s representative responded to the Department on 16 January 2018 (however another typographical error in the decision record incorrectly notes the date to be 17 January 2017). 

11. The applicant’s response to the NOICC concedes that he was not enrolled and therefore in breach of condition 8202, however it seeks to explain the circumstances of the breach. The applicant claims that a series of unfortunate events had a detrimental effect on him, personally financially and psychologically, all of which culminated in the cancellation of his enrolment in a registered course on 15 May 2017.

12. The Tribunal has regard to the applicant’s response of 16 January 2018 submitting reasons why the applicant’s visa should not be cancelled. The submission is summarised as follows:

    ·      the applicant confirmed that he came to Australia for the purpose of study.  He concedes his non-enrolment and breach of visa condition 8202;

    ·       in October 2017 he made contact with Assumption University, Thailand enquiring about enrolment in a Bachelor of Architecture, for which he was granted conditional enrolment;

    ·      in November 2017 the applicant contacted educational institutes in Australia regarding enrolment in a Diploma of Photography;

    ·      at or about the same time he was also corresponding with Torrens University with respect to enrolling in a Bachelor of Interior Design or studies of a similar vein;

    ·      the applicant’s multiple enquiries at educational institutions in Australia and overseas reveals a “trajectory of confused and tangential options … due in large part to turmoil of a personal nature that was affecting [the applicant’s] decision-making and wider judgement.” ;

    ·      Since his arrival in Australia the applicant’s grandmother required hospitalisation for a number of health issues including gastro-intestinal and cardiac complaints.  This has had an emotional and financial cost on the applicant’s family.  The applicant being close to his grandmother felt concern and anxiety for her well-being;

    ·      an additional family issue which has adversely impacted upon the applicant is that his mother is the subject of an asylum claim for refugee status in the United States of America (USA).  It is submitted that the concern and uncertainty attaching to this process has also had a deleterious effect on the applicant and his studies in Australia.;

    ·      that the applicant would feel “considerable harm through emotional pressure, grievance and disappointment” at the loss of his Student visa, which, it is submitted, would constitute a degree of hardship for the applicant;

    ·      the applicant has, with the exception of this breach, complied with his other visa conditions;

    ·      the applicant’s study in Australia has been adversely affected by the unfortunate events which befell his family around the time of cancellation of his visa, notably his grandmother’s ill-health and the anxiety and uncertainty surrounding his mother’s application for asylum in the US.  The events, it is submitted, constitute extenuating circumstances which warrant the Tribunal exercising its discretion to set aside cancellation of the applicant’s visa.

13. At commencement of the hearing the applicant provided the following documents to the Tribunal:

    ·      a photocopy of several ultrasound images which appear to be dated 1 October 2017 and a copy of a hospital discharge summary which pertain to his grandmother’s ill health;

    ·      a photocopy of a ’screen shot’ of his mother’s asylum application – which is already on the Tribunal file;

    ·      a copy of a Confirmation of Enrolment (COE) for the applicant in a Diploma of Leadership and Management for the period 12 February 2018 to 10 February 2019, created on 8 February 2018;

    ·      a copy of a COE for the applicant for enrolment in an Advanced Diploma of Leadership and Management for the period 8 March 2021 to 17 April 2022, created on 20 February 2020;

    ·      a copy of a COE for the applicant for enrolment in a in a Diploma of Leadership and Management for the period 16 May 2016 to 14 May 2017

    ·      a Statement of Purpose which the applicant claims to be the author of, but which is unsigned and undated.

14. The applicant’s oral evidence at hearing can be summarised below:

    ·      he confirmed that the purpose for him coming to Australia was to study;

    ·      he enrolled in a package of courses leading to a Bachelor of Architecture;

    ·      he commenced his studies in the Diploma of Architecture, but found the course too difficult and ceased his studies after completing two semesters;

    ·      he enrolled in a Diploma of Leadership and Management in May 2016 and claims to have completed this diploma in May 2017.  He advised that he did not contact the Department prior to this change of enrolment to the vocational educational and training sector (VET);

    ·      upon completion of the Diploma of Leadership and Management, the applicant was intending to enrol in the Advanced Diploma of the same course however he did not immediately do so because he claims he was expecting that his mother’s asylum application to the US would proceed quickly and successfully and he was hoping to join his mother in the US in that event;

    ·      his father is a principal of a school in Nepal which was damaged by the 2015 earthquake.  This event caused him anxiety and stress and made it difficult for his parents to continue to finance his studies in Australia;

    ·      within three months of his arrival in Australia the applicant secured work at Woolworths, Narrabeen.  This employment has continued unabated and he continues to be employed there.  The applicant also held a cleaning job for some six months sometime in 2016;

    ·      his family is comprised of his father and his 19-year-old sister, both of whom reside in Nepal, and his mother, who as noted, is seeking political asylum in the US;

    ·      he is a single man with no children and has no family in Australia.

15. The Tribunal questioned the applicant as to why his mention at hearing of the 2015 earthquake in Nepal is the first time he has submitted this as a factor in the circumstances surrounding the cancellation of his enrolment in a registered course on 15 May 2017.  The applicant claims that he had included this factor in his instructions to his representative for the purposes of responding to the NOICC.  He had no explanation as to why this factor was not included in the representative’s response to the NOICC of 16 January 2018.  He also could not explain why in the intervening two years, he has not sought to correct this apparent omission by his representative by seeking to include this in his submissions to the Tribunal, until the commencement of this hearing.

16. The applicant was advised that he was free to provide further submissions and evidence up until 5pm, 26 February 2020 and should he require additional time, he could request a further extension of time and the Tribunal would consider that request.  The applicant’s representative made a further submission to the Tribunal within the time allowed.

17. The representative’s further submission dated 26 February 2020 is essentially his original submission of 16 January 2018 with minimal additional evidence or submissions.  The latter submission makes no mention of the applicant’s enrolment in, or completion of a Diploma of Leadership and Management.  There is mention that the applicant “intends to return to his home country to work with his grandfather’s language school”.  Importantly, despite the applicant’s claim that he had originally instructed his representative to include the Nepal earthquake in his 16 January 2018 submission, there is no reference in either written submission to the Nepal earthquake of 2015 and its impact on the school or its putative implications for the applicant’s studies in Australia. 

18. Given that the applicant concedes that he was not enrolled in a registered course of study from 15 May 2017­­­, the Tribunal is satisfied that the applicant has not complied with condition 8202(2) and the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of the discretion to cancel the visa

19. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

20. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has 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

21. The applicant acknowledges that his intended purpose of travel to Australia was to study towards a Bachelor of Architecture via a package of courses.

22. The Tribunal finds that the applicant was not enrolled in a registered course of study for over eight months in breach of visa condition 8202. The Tribunal considers the applicant’s period of non-enrolment in a registered course of study from 15 May 2017­­­ to be a serious breach of a visa condition. 

23. The representative’s written submissions advanced a number of reasons for staying in Australia after cancellation of both the enrolment and the visa. Essentially those reasons are as follows: he is a genuine student hoping to study towards a career “that is globally relevant and mirrors his passions in life.”  His grandmother’s ill health and his mother’s asylum application in the US confused and distressed the applicant thereby adversely affecting his studies and study choices.  Further that his career goal is to return to Nepal and work in his grandfather’s language school.

24. The Tribunal finds that these written submissions are at variance with the applicant’s oral evidence.  In particular, there is inconsistent evidence with respect to effect of the 2015 Nepal earthquake upon the applicant’s studies and study choices in Australia. There is also inconsistent evidence with respect to the applicant’s reasons for continue his studies in Australia – the written submission of 26 February 2020 claims that his career goal is to return to Nepal and work in his grandfather’s language school.  However the applicant’s oral evidence was that he postponed his enrolment in the Advanced Diploma of Leadership and Management because he hoped to join his mother in the US, since both she and the applicant hoped that her application for political asylum would be processed promptly and successfully.

25. Having regard to the applicant’s conflicting evidence for wishing to remain in Australia, the Tribunal is not satisfied that he is a credible or reliable witness, nor is it satisfied that the applicant has a compelling need to stay in Australia. The Tribunal gives this factor considerable weight in finding the applicant is not a genuine student and significant weight towards the visa being cancelled.

    The extent of compliance with visa conditions

26. The Tribunal finds that the period of his breach of condition 8202 to be a considerable period of time, exceeding eight months. The Tribunal views this breach of condition to be serious, because one of the primary reasons for holding a Student visa is to be enrolled and to study, and the applicant admits to not being enrolled for an extended period of time.  The Tribunal therefore gives this factor some weight towards the visa being cancelled.

27. The applicant claims in his oral evidence to have completed a Diploma of Leadership and Management in May 2017. Whilst he has submitted a COE of this enrolment, he has provided no evidence such as an academic transcript to verify his claim that he completed the Diploma course. Further he has also submitted a COE for enrolment in the very same course at the same institution for a later period, 12 February 2018 – 10 February 2019.  There is yet another COE for this course from a different institution for the period 9 March 2020 – 7 March 2021. These subsequent enrolments in the same course do not support the applicant’s claim that he completed this study in May 2017. It is reasonable to expect the applicant would provide that evidence if it existed, given the applicant’s claim that he is and always was a genuine student. The applicant is in the best position to produce evidence of his own academic progress, if that evidence exists.

28. According to the evidence, the applicant has not completed any course of study at the higher education level, the level of study for which the applicant’s visa was granted.

29. On the basis of the foregoing evidence, the Tribunal is not satisfied the applicant achieved a reasonable degree of compliance with the study purpose and conditions of the Student visa. The foregoing considerations weigh in favour of cancellation of the visa.

30. The Tribunal notes that that the applicant is not able to work due to the visa restrictions of his current Bridging visa E. However his oral evidence is that he has continued to be employed by Woolworths for almost the entire time he has remained onshore. The Tribunal finds that the applicant has not only breached condition 8202 of his Student visa, but it is probable that he has also been in breach of a condition prohibiting work attaching to his current Bridging visa E.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

31. The applicant claims that he would suffer “considerable harm through emotional pressure, grievance and disappointment” should his visa remain cancelled. The Tribunal is not satisfied, on the evidence before it, that members of the applicant’s family, or the applicant himself, would suffer a degree of emotional, psychological or psychiatric hardship that would weigh in favour of not cancelling the visa.

32. The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa.

33. The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of his family a degree of hardship sufficient to persuade the Tribunal to give this consideration weight against cancellation of the visa.

    Circumstances in which ground of cancellation arose

34. The circumstances in which the ground of cancellation arose and the applicant’s and responses set out earlier in this decision. The inconsistencies and contradictions in the applicant’s evidence relevant to his failure to return to study and to remain enrolled reflect adversely on his credibility. The Tribunal is not persuaded by his claim at hearing that his ability to pay his tuition fees resulted in part from the impact of the 2015 earthquake in Nepal on his parents’ capacity to pay his tuition fees.

35. The Tribunal has regard to the evidence of the applicant’s mother’s application for political asylum and of his grandmother’s poor health at the time of his studies. The Tribunal accepts that these personal factors may have caused him some consternation and may have adversely impacted his capacity to continue his studies in Australia.  However the applicant chose not to return to Nepal to be close to his grandmother during her illness, nor indeed did he seek to return to Nepal following the 2015 earthquake. Furthermore his concern for his mother’s asylum application appears to centre around its hoped for success affording him the ability to join her in the USA post haste.

1. On the basis of the evidence before it the Tribunal is not satisfied the circumstances in which the ground for cancellation arose were exceptional and beyond the applicant’s control.

2. The evidence concerning the circumstances in which the ground for cancellation of the visa arose does not satisfy the Tribunal that this consideration weighs against cancellation of the visa; on the contrary those circumstances, considered as a whole, weigh in favour of cancellation of the visa.

   Past and present behaviour of the visa holder towards the department

3. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal give this some little weight against cancellation of the visa.

   If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

4. Not relevant.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

5. The Tribunal acknowledges that cancellation of the applicant’s visa would result in his being prevented from being granted a range of temporary visas, including Student or Visitor visas, for a period of three years by operation of condition 4013. It further notes that the applicant would be prevented from applying for many visas onshore apart from a limited range of visas, pursuant to s.48 of the Act. Therefore, the Tribunal gives this consideration neutral weight in respect to cancellation of the visa whether there would be consequential cancellations under s.140

   Whether any international obligations would be breached as a result of the cancellation

6. In this case it does not appear that this consideration is relevant and the applicant has not made any claims which would relate to this consideration.

   Summary

7. The Tribunal is mindful of the almost nine month period of non-compliance and having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to not cancel the visa.

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

   DECISION

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

   Stephen Conwell
   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.