Maskey (Migration)

[2018] AATA 5212

Maskey (Migration) [2018] AATA 5212 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anil Maskey

CASE NUMBER:  1702612

HOME AFFAIRS REFERENCE(S):           BCC2016/3726515

MEMBER:Stephen Conwell

DATE:28 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 November 2018 at 11:07am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-enrolment – mental and emotional stress – did not seek medical or psychological help – deferral of studies – financial difficulties – earthquake in Nepal – 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 9 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training 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 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.

3. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 9 February 2017.

4. The applicant appeared before the Tribunal on 25 October 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. The applicant is a national of Nepal, born 26 August 1990.  His Student (Temporary) (class TU) (subclass 572) visa was granted on 30 April 2015 and was subject to condition 8202. 

9. On 25 January 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) which advised the applicant that information on the Provider Registration and International Student Management System (PRISMS) indicated the applicant had not been enrolled in a registered course of study since 8 February 2016. Further that it therefore appeared the applicant did not meet the requirement of condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b).

10. The applicant responded to the NOICC by email of 31 January 2017.  On 9 February 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.

11. In his response to the NOICC, (which is quoted in its entirety in the delegate’s decision), the applicant claims that he did not realise that his enrolment had been cancelled because his studies involved very few contact hours and was conducted substantially ‘on-line’; as a consequence he does not recall receiving clear notice of the intention to cancel his enrolment. Furthermore he was stressed from working 20 hours a week in a difficult job and had also lost his spectacles whilst on a personal visit to Sydney, which added to his stress. He also stated that an earthquake in his home country of Nepal in 2015 had “demolished” his father’s small business leaving him unable to financially support the applicant’s studies.

12. The applicant cited the 2015 earthquake in Nepal and work and financial stressors as reasons for not maintaining his enrolment. The applicant stated, as outlined in the delegate’s decision he provided the Tribunal that “this is my first and last mistake” and he is keen to resume his studies.

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

14. Having considered the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. 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’

16. The applicant said he wished to study in Australia and there is no evidence before the Tribunal that the applicant’s initial intention in travelling to and residing in Australia was not for purposes of study.

17. The applicant failed to maintain enrolment in a registered course of study for 12 months (at the time of the delegate’s decision). The Tribunal believes this to be significant. That being said, the delegate notes the applicant offered no evidence to corroborate his claims of experiencing mental and emotional stress which led to his non-enrolment, nor is there any evidence that the applicant informed the Department of these personal issues or that he sought to regularise his visa status.

18. At hearing the applicant confirmed that he did not speak to his college or to the Department regarding his mental and emotional stress, nor did he seek any medical or psychological help or counselling. He confirmed that he did not speak to his college or to the Department regarding the possibility of deferring his studies or with regard to his funding difficulties which he claims arose from the 2015 earthquake in Nepal.

19. The only evidence before the Tribunal pertaining to the applicant’s claim to have experienced mental stress was in the form of two medical scripts dated 1 January 2017 and 30 January 2017 for ‘Lexapro’, a common anti-depressant medication; also submitted is a receipt for the applicant’s visit on 30 January 2017 to the Northcote Medical Group. The Tribunal accepts that the applicant may have experienced a period of stress and perhaps even a bout of depression around this time however it does not accept that these personal challenges were  such that they prevented the applicant from contacting either or both his college and the Department to alert them to his personal circumstances and perhaps discuss deferral of his studies until such time that his personal and financial circumstances improved enough for him to consider returning to his studies.

20. The Tribunal accepts that if the applicant’s visa is cancelled he and/or his family may be subject to some financial or other hardship. He may also be liable to being detained under this.189 and removed under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention.

21. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and 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.  

22. The applicant has said that his personal stresses made him lose concentration on his studies however he is “slowly back to normal and very keen to study”. He says that he would like at least one Advanced Diploma qualification before he returns to his home country.

23. The applicant claimed his circumstances were beyond his control however he might have deferred his studies in Australia and returned to Nepal sometime within the 12 month period that he remained not enrolled. At hearing he confirmed that he continued to work in Australia during this period, sometimes in excess of 20 hours per week - which might possibly been in breach of his ‘work rights’ visa condition. However the Tribunal makes no adverse finding in this regard.

24. The Tribunal has no evidence that:

    ·    the applicant has been uncooperative with either the Department or the Tribunal;

    ·    any other person’s visa would or may be cancelled if the applicant’s visa is cancelled;

    ·    Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

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