Namgay (Migration)

[2022] AATA 5040

Namgay (Migration) [2022] AATA 5040 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thinley Namgay

REPRESENTATIVE:  Mrs Preeti Puri (MARN: 0960289)

CASE NUMBER:  2006150

HOME AFFAIRS REFERENCE(S):          BCC2019/5185351

MEMBER:Christine Kannis

DATE:16 August 2022

PLACE OF DECISION:  Perth

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

Statement made on 16 August 2022 at 1:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – invalid s.375A certificate – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose for travel and stay in Australia – significant breach – extent of the breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
El Jejieh v MHA (No 2) [2019] FCCA 84
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition 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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 9 August 2022 to give evidence and present arguments.

5. At the commencement of the hearing, the Tribunal noted the Department’s file contains a s 375A certificate. The effect of such a certificate is that the Tribunal is prohibited from disclosing the document, or information in it. The Tribunal explained that the information covered by the certificate included details of investigations undertaken by the Department. The Tribunal provided the applicant with a copy of the s 375A certificate and invited him to comment on the validity of the certificate. He made no comment on the validity of the certificate.

6. The s 375A certificate was not signed and therefore was not valid (El Jejieh v MHA (No 2) [2019] FCCA 840). Notwithstanding that, the Tribunal decided the information was relevant to this review and informed the applicant that it would provide the gist of the information to him during the hearing under s 359AA of the Act. In deciding to disclose the gist of the information the Tribunal took into account the fact that the information was contained in the applicant’s enrolment record which would in any event be put to him as part of the review.

7. The applicant was represented in relation to the review. The applicant’s representative failed to attend the hearing. The Tribunal delayed the commencement time of the hearing by 15 minutes however the applicant’s representative did not contact the Tribunal to advise of any reason for the failure to attend or for any delay in their arrival. On 15 July 2022 the applicant’s representative advised the following by email:

   I, Preeti Puri, (MARN #0960289), am the current acting migration agent for my client Thinley Namgay_2006150.

   This is regarding the invitation of attending hearing on 9^th Aug 2022 at 09:00 am (WA time). My client Mr Thinley Namgay will be attending the hearing along with Migration Agent Preeti Puri. Please find the form attached for your reference.

8. The Tribunal was satisfied that the representative was aware of the hearing time and date.

9. On the morning of the hearing and prior to commencement of the hearing, the applicant informed the Tribunal’s hearing officer that he wished to proceed without his representative. The applicant told the Tribunal that he had attempted to call his representative on the morning of the hearing however the call went to a message bank. He confirmed that he wished to proceed with the hearing without his representative.

10. 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

11. 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 (Cth) (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?

12. On 23 July 2018 the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

13. 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 full-time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

14. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

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

16. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

17. The information from the PRISMS shows that the applicant has not been enrolled in a registered course of study since his enrolment in a Bachelor of Business was cancelled on 5 March 2019.

18. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 5 March 2019 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

19. For these reasons, the Tribunal is satisfied that 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

20. 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’, as set out below.

21. On 12 February 2020 the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

22. On 26 February 2020 the applicant responded to the NOICC and provided the following information:

    ·He provides this letter/response with absolute clarity going against the advice of friends on how he should make up a story or an illness that would lessen the chances of his visa being cancelled.

    ·Unlike his fellow Bhutanese students in Perth, he did not have cousins or friends to stay with and to show him around.

    ·In his culture the men are responsible for taking care of the family. He has three sisters and is the only son. He decided to come to Australia for his college degree so that it would land him a reputable job back at home.

    ·Before he came it was decided that he would live with his father’s friend (Mr Kado) who currently holds a PR and lives with his family. The first few weeks were exciting and enjoyable, after that everything just went downhill.

    ·As time progressed and his classes started, he could sense Mr Kado’s family’s attitude towards him changing. Soon he found himself doing daily chores at the house and before he realised, they had turned him into their personal maid or servant. One of the hardest things to do was waking up before anyone else and making breakfast for everyone, especially packing their kids’ lunch. As much of a cliche this sounds, this really is how he had been living and the part that made him most upset was he could not tell his father because he did not want to cause problems and stir things up between two families that are miles apart. The daily routine itself was enough struggle, going to college was even worse.

    ·He had never felt more alone and did not have a single friend he could talk to about his problems. The thought of going back struck him many times.

    ·He would go four to five days straight without any sleep and couldn’t even remember the last time he actually had a decent meal. The feeling of being helpless and disappointment just weighed on him and it got heavier and heavier.

    ·Finally, he decided to move to Canberra where his brother-in-law was staying.

    ·While applying for his release from the university, a friend recommended an agent. The agent gave him full assurance that he need not apply for a release while applying for college in another state. After that meeting he applied at Canberra Institute of Technology and got the offer with the help of the agent. Having received the offer letter, the agent asked him to pay his agent fee which he happily obliged. He soon realised he had been conned.

    ·The college in Canberra had blocked his CoE on grounds that he did not get a release from his previous college. Before long, his college had cancelled his CoE and he was still living with his dad’s friend. It was the worst possible thing that could happen to anyone.

    ·He started having anxiety issues and was in a very deep state of depression and lost track of time.

    ·After six months his brother-in-law visited him and he could tell something was wrong and so he made him stay with his old friends. During that time he started getting better and soon he managed to move to another place of residence and got a part-time job.

    ·He has re-applied for his course with his original education provider and is currently waiting for a letter of offer.

    ·Many people told him it is better to write a fictitious story which can lead to a proper case and that fake documents can be obtained for money. But he believes that the truth has to be heard whether it favours him or not. He said “I do not have any legal arguments, I assure you everything I have written above is true to its very core.”

    ·He wants a second chance.

    ·He wishes to pursue his education and make his family proud and he wants to be able to return home being able to find a reputable job and take care of his family.

    Evidence at hearing

23. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:

    a.He was enrolled in a Diploma of Business, but this enrolment was cancelled on 13 March 2018 because of Change of CoE/Student Details.

    b.He was enrolled in a Bachelor of Business, but this enrolment was cancelled on 14 March 2018 because of Change of CoE/Student Details.

    c.He was enrolled in a Diploma of Business, but this enrolment was cancelled on 12 July 2018 because of Change of CoE/Student Details.

    d.He was enrolled in a Diploma of Business, but this enrolment was cancelled on 1 March 2019 because of Student Notifies Cessation of Studies.

    e.He was enrolled in a Bachelor of Business, but this enrolment was cancelled on 5 March 2019 because of Disciplinary reasons. PRISMS records that the applicant was issued a written notice of intention to report and that he did not choose to access the Complaints and Appeals Process and that the 20-working day period had elapsed.

24. The Tribunal explained to the applicant that this information was relevant because it indicates that from 5 March 2019 onwards, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal also explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.

25. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

26. The applicant did not take issue with the information from the PRISMS record at the hearing. He told the Tribunal that he attended all the classes for the three courses which were cancelled in 2018 but he did not sit the exams. He said the reason he did not sit the exams was because he had met with a migration agent who advised him that he did not need to continue with his studies for a Diploma of Business at Murdoch Institute of Technology because he had the option of going straight to a Bachelor course at Stott’s College. He said it appealed to him to go straight to a Bachelor course and in addition many of his friends were studying at Stott’s College.

27. Utilising the s 359AA procedure in relation to the information covered by the invalid s 375A certificate, the Tribunal asked the applicant about the record on PRISMS that his last CoE was cancelled due to “Disciplinary reasons”. The Tribunal notes that this information was also put to the applicant under s 359AA when his PRISMS enrolment record was put to him. The applicant told the Tribunal that he went to see the migration agent a second time in October 2018 and he was advised that he could stop attending classes, which he did in January 2019, because the migration agent would be taking steps to enrol him in Stott’s College.

28. The applicant told the Tribunal that his migration agent’s attempts to enrol him in Stott’s College were not successful because Murdoch Institute of Technology would not provide a release. The applicant told the Tribunal that his attempts to contact the migration agent for the purposes of the review have been unsuccessful.

29. In response to the Tribunal asking how he spent his time during the 11-month period from the date of cancellation of his enrolment on 5 March 2019 until the NOICC was issued on 12 February 2020, the applicant said he applied for enrolment in courses at Stott’s College, Perth College of Business and Technology and Stanley College. He said he was not successful because Murdoch Institute of Technology would not provide a release.

30. The Tribunal put to the applicant that he remained in Australia for those 11 months as the holder of a student visa during which time he wasn’t undertaking study and he would have been aware that he was in breach of his visa conditions. The Tribunal asked him whether he contacted the Department to advise of the change in his circumstances. He said he did not contact the Department because he was still trying to apply for enrolment in courses at Perth College of Business and Technology and Stanley College. He said he received letters of offer from these education providers but without a release from Murdoch Institute of Technology, they would not issue a CoE.

31. The Tribunal asked the applicant how he financially supported himself during the period from 5 March 2019 to 12 February 2020. He said one of his sisters and her partner live in Perth and she financially supported him during that period, and she continues to do so. Noting that the applicant’s response to the NOICC indicated that he had minimal support in Perth, the Tribunal asked the applicant how long his sister has lived here. He said she had been here since 2017.

32. The Tribunal asked the applicant to clarify the apparent inconsistency in his oral evidence and the information provided in his response to the NOICC. He said the information he provided in the NOICC response was a “last minute” story he had made up. He said some parts of it were true and when asked to identify the true information he said it was true that he was going through a hard time because he had not been able to enrol in any college before and after cancellation of his enrolment by Murdoch Institute of Technology on 5 March 2019.

33. The Tribunal noted that the applicant’s NOICC response said he had re-applied for his course with his original education provider and was currently waiting for a letter of offer. He told the Tribunal that this was false information and that Murdoch Institute of Technology had refused to enrol him.

34. The applicant told the Tribunal that it was a stupid mistake to try and not undertake the diploma study and go straight to the degree study.

35. The applicant told the Tribunal that the purpose of his travel to Australia was to study Business and return to Bhutan and work in digital marketing.

36. When asked whether there is a compelling need to travel to or remain in Australia, the applicant told the Tribunal that he has not broken any rules since he has been in Australia and he intends to study here. The Tribunal pointed out that he had in fact breached a condition of his student visa and he clarified that he had not broken any rules during the waiting period for the hearing. He also said that he has three sisters and he is the only son in the family. He said in his culture it has been made clear to him that he needs to financially take care of his sisters.

37. When asked about the hardship that may result from cancellation of his visa the applicant said he cannot return to Bhutan and face his father without having studied. He said he feels the family pressure as the only son to get a proper education. The applicant said if he returns to Bhutan without an Australian qualification he is unsure of the options available there. He said he could study for a Diploma of Business in Bhutan but he wanted to study in Australia because it is the best.

38. In response to the Tribunal asking what study he intends undertaking in Australia if his visa is not cancelled, the applicant said he would study Business however he had not made any enquiries about available courses with any education providers.

1. The applicant told the Tribunal that if he had not met the migration agent, he would have finished his study. He said most of his friends have now graduated.

   Post hearing evidence

2. Following the hearing the applicant provided the following documents to demonstrate his attempts to obtain new enrolment after his enrolment was cancelled on 5 March 2019:

   ·Invoice dated 18 March 2019 from Education Pro for an Enrolment Fee of $6,000. No receipt evidencing the payment was provided.

   ·Student Letter of Offer and Student Acceptance Agreement from Acknowledge Education for a Bachelor of Business course commencing on 18 March 2019.

   ·Email dated 17 April 2017 from the applicant to Stanley College advising that Murdoch University had declined his request for a release several times.

   ·Email dated 22 April 2019 from Stanley College advising the applicant that it cannot proceed with his CoE approval unless his previous provider had released his enrolment with them.

   ·Email dated 26 April 2019 from Stanley College reminding the applicant that a release from his previous education provider was required before a CoE could be issued.

   ·Letter of Offer dated 16 March 2020 from Perth College of Business and Technology for a Diploma of Business course commencing on 27 April 2020.

3. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

   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

4. The applicant told the Tribunal his purpose in coming to Australia was to study. The applicant was granted a student visa to study in Australia. The applicant did not complete any of the courses that he enrolled in. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 11 months.

5. The Tribunal accepts that the applicant made enquiries regarding enrolment with other education providers after his enrolment was cancelled on 5 March 2019.

6. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

7. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response he said he had not broken any rules during the period he waited for the review and as the only son of the family it is his responsibility to financially take care of his sisters. The Tribunal does not consider this constitutes a compelling need.

8. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

   The extent of compliance with visa conditions

9. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study since 5 March 2019. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

10. The applicant’s non-compliance for an extended period of 11 months prior to the NOICC weighs in favour of visa cancellation.

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

11. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to his family and in particular because he is the only son in the family. The Tribunal gives this some weight against cancellation however is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

12. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said the courses undertaken in 2018 were cancelled because he did not sit the exams and in 2019, he stopped attending classes. He said these actions were based on advice he received from a migration agent. There was no documentary evidence to substantiate that he was given this advice however even if he was so advised, it was his responsibility to remain enrolled in a registered course. If he wanted to pursue a different pathway to a Bachelor of Business (one which did not require completion of a Diploma of Business), then he should have secured a CoE before ceasing studies in 2019.

13. The Tribunal put to the applicant that he remained in Australia for 11 months as the holder of a student visa during which time he wasn’t studying. He said he made a stupid decision when he decided he wanted to bypass the requirement to obtain a Diploma of Business.

14. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

15. The applicant told the Tribunal that the information he provided in his response to the NOICC was mostly false information. He said it was a “last minute” story he had made up. The Tribunal notes the repeated references in the NOICC response saying the information was true.

16. The applicant’s admission of providing false information in the NOICC response weighs in favour of visa cancellation.

    Whether there would be consequential cancellations under s 140

17. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

18. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

19. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

20. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

21. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

22. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.