Maharjan (Migration)

[2018] AATA 4930

Maharjan (Migration) [2018] AATA 4930 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rujani Maharjan

CASE NUMBER:  1619733

HOME AFFAIRS REFERENCE(S):           BCC2016/3188597

MEMBER:Melissa McAdam

DATE:24 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2018 at 3:01pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – duration of non-compliance – inability to find a job in a home country – marriage breakdown –knowledge of parent’s marriage tensions – lack of attendance at hearing – 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 16 November 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. On 1 November 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her Student visa, inviting her to comment on a possible breach of condition 8202, which required her to be enrolled in a registered course. The NOICC set out information that the applicant had not been enrolled in a registered course of study since 9 November 2015.

3. On 8 November 2016 the applicant provided a response that:

   ·She had completed courses in an Advanced Diploma of Business Management and Bachelor of Accounting. Her results had been satisfactory.

   ·Her relationship with her husband deteriorated resulting in their divorce. This struck her hard. She became depressed and did not leave her house, so she did not attend her course.

   ·At the same time she discovered that her parents were also having a lot of tension and conflict  in their marriage. They argued and her father left the household. This caused the applicant more stress and depression. She was not in a state of mind to attend her course.

   ·Her parents have invested a lot of money and resources in her to study in Australia. She feels she has let her parents down. If her parents find out about her situation they will be devastated and disappointed.

   ·Her original plans were to complete her studies in Australia and return to Nepal to set up a business or work for a large international company. Her plans are now shattered. She will now struggle to find any work in Nepal.

   ·She would like a second chance and she will comply with her Student visa conditions and continue her course of study.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course.  The delegate found that the applicant had not been enrolled in a registered course of study since 9 November 2015. The issue in this case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant submitted a copy of the delegate’s decision to the Tribunal.

6. On 30 August 2018 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 22 October 2018. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

7. On 15 October 2018 the applicant advised the Tribunal that she wanted to give oral evidence. However, the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that  the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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).

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

11. The Department’s records show that the applicant has not been enrolled in a registered education course since 9 November 2015.  The applicant also confirmed in her November 2016 response to the NOICC that she had stopped attending her course and was no longer enrolled in a course of education.

12. On the evidence before the Tribunal, the Tribunal finds that the applicant was not enrolled in a registered course. Therefore 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. The applicant’s stated purpose to travel to and stay in Australia was study. The applicant has not been studying in Australia for a substantial period of time.

15. The applicant has not claimed that she has a compelling need to remain in Australia.  She wrote that she wanted a second chance to complete her studies so she could return to Nepal with a qualification that would help her have a good career.  The Tribunal does not consider this represents a compelling need.

16. The Tribunal considers this matter does not support the setting aside of the visa cancellation.

    The extent of compliance with visa conditions

17. There is no information before the Tribunal that the applicant has breached any of her other visa conditions. The Tribunal therefore gives this factor some weight in the applicant’s favour.

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

18. The applicant has presented information that the cancellation may cause her financial hardship in that she will not be able to find employment in Nepal without a suitable education qualification. She also claims her parents will be very distressed.

19. The Tribunal considers these concerns are speculative and are outweighed by the seriousness of the applicant’s breach of her visa conditions.

    The circumstances in which ground of cancellation arose

20. The applicant has provided evidence that she did not enrol in a course of study in Australia because of her depression due to her marriage breakdown and distress at learning of tensions in her parents’ marriage.

21. While the Tribunal accepts that these circumstances s would be very distressing to the applicant there is very little detail about how, or if, they incapacitated her to such a degree that she could not enrol in a course of study.  There is also no explanation presented why she did not return to Nepal to be with her family there given her emotional state.

22. The Tribunal gives these circumstances a little weight in the applicant’s favour but considers them outweighed by the seriousness of the applicant’s breach.

    The past and present behaviour of the visa holder towards the department and Tribunal

23. There is no indication that the applicant has been uncooperative or involved in any bad behaviour in her dealings with the Department. However the Tribunal notes the applicant has not presented to the scheduled Tribunal hearing. The Tribunal considers this behaviour indicates a lack of cooperation and engagement with the cancellation process and finds it a matter which weighs against the exercise of the Tribunal’s discretion in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

24. There is no indication in any of the information before the Tribunal that the cancellation of the applicant’s visa causes any consequential cancellations.  The Tribunal therefore finds this factor is not a relevant consideration.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

25. If the applicant remains in Australia without a valid visa she may become liable to detention. However this is not an actual consequence of the cancellation but a potential consequence dependent upon the applicant’s future actions.  If the applicant obtains a further visa or departs Australia before her bridging visa expires she will not be subject to mandatory immigration detention.

26. If the applicant departs Australia while on a Bridging visa or unlawful, she will be subject to Public Interest Criterion 4014, which provides for a 3 year period from the date of departure in which the applicant may not be granted a visa without the Minister’s approval. However this possibility has been brought about by the applicant’s own action in failing to fulfil a condition of her visa.  The Tribunal finds that the seriousness of the applicant’s breach outweighs the concerns about the difficulties the applicant will have in returning to Australia within a three year period.

    Whether 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

27. There is no information before the Tribunal that any international obligations would be breached as a result of the cancellation of the applicant’s visa.  The Tribunal therefore finds this factor is not a relevant consideration.

    Any other relevant matters.

28. The applicant has provided no further information or submissions about why her visa should not be cancelled, since her November 2016 response to the Department’s NOICC. 

29. The Tribunal considers no other relevant matter arises as to why the applicant’s visa should not be cancelled.

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 Class TU visa.

    Melissa McAdam
    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.