Nandan (Migration)

[2018] AATA 4819

Nandan (Migration) [2018] AATA 4819 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jayesh Umit Nandan

CASE NUMBER:  1700774

HOME AFFAIRS REFERENCE(S):           BCC2016/4313215

MEMBER:Stephen Witts

DATE:2 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 October 2018 at 9:44am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – breach of enrolment conditions – non-commencement of studies – poor study record – no compelling reasons to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cls 573.223, 573.231 Schedule 8 condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 January 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with a condition of his visa as he has not continued to be a person who would satisfy the primary criteria for the grant of a visa and has not complied with Condition 8516 as he was no longer enrolled in a higher degree course in breach of Condition 8516. 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 before the Tribunal on 26 September 2018 to give evidence and present arguments.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if he 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)(b). 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.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition required that the applicant continue to be a person who would satisfy the primary criteria of the grant of the visa. The primary criteria that are relevant in this circumstance are 573.231 and 573.223(1A), which are both set out in the delegate’s decision.

   Visa Condition 8516

7. Visa condition 8516 was attached to the applicant’s visa. This condition requires that the applicant is enrolled in a principal course of study of the type that is specified for Subclass 573 by the Minister in an instrument made under regulation1.40A; and is in force at the time the application was made.

8. Eligible higher degrees student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   The applicant is enrolled in a principal course of study for the award of:

   a bachelor’s degree; or

   a Master’s degree by coursework.

9. It is also a requirement that the principal course of study is provided by an eligible education provider.

10. According to the delegate’s decision record, provided by the applicant to the Tribunal, the applicant’s enrolment in a Bachelor of Business at Latrobe University was cancelled on 18 March 2016 and that the applicant did not hold an enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas until the date of the delegate’s decision on 11 January 2017.

11. Based on this information, the delegate has contended that the applicant has not continued to be a person who would satisfy either subclause 573.231 or 573.223(1A). As such the applicant has not continued to be a person who would satisfy the primary criteria for the grant of the visa and has not complied with condition 8516.

12. Based on the information before the delegate, the delegate was satisfied that there was a ground for cancellation of the applicant’s visa under paragraph(s) s116(1)(b) breach of condition-8516 of the act.

13. According to the delegate, during the application process for his student visa the applicant stated that his intended purpose of travel to and stay in Australia was to study. The applicant was granted a TU573 visa on 19 November 2014 with the intention of studying a Bachelor of Business from 27 July 2015 until 30 June 2018. Therefore, according to the delegate the applicant’s stated intention at the time of visa application was to undertake study in a bachelor level course.

14. According to the delegate the applicant did not commence his Bachelor of Business course on 27 July 2015, and his enrolment was deferred until 22 February 2016 for him to complete a Foundation Studies course. The applicant’s enrolment in the Bachelor of Business was cancelled on 18 March 2016 due to non-commencement of studies.

15. According to the delegate, the applicant obtained enrolment to study Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.

16. The delegate therefore contended that the applicant is no longer enrolled at bachelor level in accordance with the purpose of his TU 573 visa and contrary to his stated intention at the time of his visa application.

17. The delegate was therefore satisfied that the applicant’s stated intention at the time of his visa application did not constitute a reason not to cancel the applicant’s visa, and the delegate placed little weight on the applicant’s consideration in favour of not cancelling the visa.

18. At the hearing the Tribunal had a discussion with the applicant regarding the nature of the alleged breach of his visa and gave the applicant an opportunity to put his point of view as to whether the visa should have been cancelled.

19. During this discussion the applicant acknowledged that there were certain conditions attached to his visa and that he was not enrolled in a higher course of study between 18 March 2016 and 11 January 2017.

20. The applicant acknowledged that, in fact, he was not enrolled during this period of time but that he believed there were extenuating circumstances that he wished the Tribunal to consider.

21. On that basis the Tribunal finds that the applicant was not enrolled to study a principal course of study here in Australia between 18 March 2016 and 11 January 201.

22. 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 the visa should be cancelled.

    Consideration of discretion

23. Having found that the applicant has not complied with the condition of the visa, the Tribunal must consider whether to exercise his discretion to cancel the visa.

24. 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’.

25. The Tribunal has considered any submissions provided to the Department or to the Tribunal and also the evidence taken at hearing and presented to the Tribunal.

26. On 21 December 2016 the applicant provided the following submission to the delegate (delegates file folio 12):

    I think my visa should not be cancelled as La Trobe University was aware that I had differed my semester of study but I was not aware that I was in breach of any visa conditions. They did not contact me in between that time period to check or inform me of such. The main reason for my deferral was that my family was struck by tropical cyclone Winston and the funds which were supposed to be used for my tuition fees were used to rebuild parts of my parent’s house and repair other damage done.

    My purpose to stay in Australia is that it’s considered home for me, though being Fijian growing up here since grade one. No matter where I go, there is something which always call me back to Melbourne. Apart from its diverse lifestyle and culture, there are some excellent education providers with world recognised qualifications. I have a new COE with a different education provider to start school from January 2017, with process of changing visa. I wish to study a diploma of hospitality as I have already acquired eight years of experience in the field from numerous countries and I currently work in the field part time as a bartender. Acquiring this qualification is just a stepping stone for me to branch out into bigger things in Australia’s hospitality scene.

    If my visa to be cancelled, it would cause extreme hardship on my family as they have worked very hard to give me what most people would want in their lives. There is not much for me in Fiji, being a developing country it will still take numerous amount of years to get back on its feet. My family are doing okay at the moment but do not want me to come back this early on. I would like to make a life over here and make my parents proud by being able to provide for them in their older age as they did for me when I was younger. Also, as I support myself from rent to all expenses and plan to pay for my school fees without assistance from my parents the legal fees to appeal against the cancellation will be costly and I’m unsure if I’ll be able to afford a lawyer. Though it may be a struggle I know it will be worth it in the end.

    Though my actions may look bad that I have breached the condition unknowingly, I assure you that this circumstance will not arise again. I have a clean record and wish to keep it as such. You can be sure that no breaching of any kind will arise and I will finish the qualification and get permanent residency and so forth. I hope to hear good news from you in the coming weeks.

27. It is noted by the Tribunal that the applicant acknowledges in his statement that he was in breach of his visa but that he did this unknowingly.

    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

28. The applicant stated that he first came here with his parents as a young child aged five in 1998 on a dependent visa and lived here in Australia with his parents for approximately 10 years. He stated that his father worked for Telstra and his mother worked in the care industry.

29. He stated that after having lived here in Australia for that time he then moved with his family to Singapore where he lived for eight years as his parents were working there and then subsequently went back home to Fiji for a year or so prior to him coming here in 2014 on a student visa.

30. The applicant stated that he has a mother and a father, and a sister, and several uncles and aunts back in his home country.

31. He stated that he has been back to his home country once or twice since December 2014 for a period of two weeks or so. He stated that he has not travelled anywhere else outside Australia.

32. The applicant stated that he is not working currently but has worked as a bartender over the last few years working approximately 20 hours per week for $24AUD per hour.

33. The applicant stated that he has some close personal relationships here in Australia including some close personal friends of his parents that he refers to as his uncles and aunts here in Australia. He stated that he has a lot of friends here in Australia. The Tribunal acknowledges that the applicant does have associations here in Australia but finds that this is not significant in terms of a compelling need to remain here.

34. The applicant stated that he rents in Epping with friends and his parents have been helping him with his financial situation here in Australia.

35. When asked by the Tribunal what he has been doing here in Australia of recent times the applicant stated that he is not working at the moment, not studying either, and has been travelling Australia being a tourist.

36. The applicant stated that he feels very much home here in Australia and that he has now lived here for a number of years.

37. The applicant stated that he has not studied here in Australia since he completed his Foundation Studies in English at the beginning of 2015 and has not proceeded to any further education since the cancellation of his Bachelor of Business. He also stated that he has not proceeded with his enrolments in commercial cookery and hospitality.

38. The Tribunal had a discussion with the applicant regarding his stay in Australia and whether he had a compelling need to remain in Australia.

39. The applicant gave as his compelling need to remain here in Australia and study was that Fiji is a developing nation that would offer him less economic opportunity than Australia as a developed economic nation. The applicant stated that it was not fair that his visa was cancelled and restated his contention that his father could not pay his tuition fees during this time because of the effects of Cyclone Winston back in Fiji.

40. When asked by the Tribunal to provide the date of the cyclone and a timeline as to when he returned home during this period the applicant stated that he could not remember when the cyclone occurred and that he did not go home at this time but stayed in Australia throughout this period.

41. The applicant stated that he would experience some hardship by returning to Fiji without any study qualifications as the economic circumstances in Fiji do not compare favourably with those in Australia. He also stated that his parents will be disappointed as they have worked hard for him and he wanted to be able to be in a position where he could assist them financially

42. The Tribunal is concerned by this evidence as the applicant could not provide a compelling need to remain here in Australia on a student visa except for a reference to the better economic circumstances generally here in Australia and that the earnings he could receive back in Fiji would not compare favourably to that in Australia.

43. The Tribunal finds that the applicant has not put forward a compelling need to remain in Australia on student visas to study for his higher level degree. It is noted by the Tribunal that the applicant has actually not engaged in any study here in Australia since his arrival here in 2014 except for a short course in Foundation Studies in English which lasted for a few weeks.

44. The Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

45. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

46. The applicant explained that because of financial hardship caused by his father’s inability to be able to pay his tuition fees for a time back in 2016 that he did not have any money to pay for his study.

47. When asked by the Tribunal to provide reasons why he did not simply defer his course for a period of time whilst he was going through a difficult financial situation caused by his father’s inability to be able to pay for his tuition fees during Cyclone Winston back in his home country the applicant stated that he was not aware that you could defer your course and then come back to it at a later period of time.

48. The applicant stated that he would experience a degree of hardship if he was not able to remain in Australia, on student visas, and enrol again in a course of study. The applicant stated that if he had to go home at this point he would not be able to find as good a job as the economic circumstances in Fiji are not as good as here in Australia.

49. The applicant stated that he now wants to continue his study despite the fact that he hasn’t, in fact, studied here successfully at all since his arrival on a student visa in 2014 except for his Foundation Studies in English.

50. The Tribunal recognises that the applicant did have problems here in Australia with his study caused by a family problem with being unable to provide money for his fees for a period of time. However, the Tribunal finds that these considerations do not outweigh the applicant’s poor study record here in Australia and the significant breach of not being enrolled in a principal course of study, or indeed in any other course of study. The considerations in favour of cancelling his visa outweigh the considerations in favour of not cancelling the applicant’s visa.

    Circumstances in which grounds of cancellation arose

51. The applicant acknowledged that his visa was cancelled due to his lack of enrolment to study in a principal course of study, in accordance with visa condition 8516 during the stated period of time. However the applicant argued that he was unable to study during this time because of financial hardship.

52. The Tribunal gives some weight to the applicant’s situation regarding his financial hardship causing some stress on his day-to-day circumstances. However, the Tribunal does not see this as sufficient reason not to be enrolled in a registered course or to have deferred his Bachelor of Business for a period of time until he was able to reenrol.

53. Furthermore the applicant provided no evidence of his attempts to enrol during this time or at other times during his stay here in Australia. As such, the Tribunal gives limited weight to this reason for not being enrolled in a registered course of study.

54. Given the circumstances above, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period of almost 12 months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present conduct of the visa holder towards the Department

55. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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

56. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

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

57. There is nothing before the Tribunal to indicate our international obligations to consider.

    Any other relevant matters

58. The applicant did not provide any other reasons for his lack of enrolment during this period other than a difficulty with paying his fees because of a problem that his father had back in his home country.

59. The applicant gave no indication when asked to explain and detail to the Tribunal any other concerns he may have as to his general welfare should the visa be cancelled. The Tribunal appreciates that an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment in Fiji and the applicant did not give any other evidence to indicate a detrimental effect if the visa was cancelled. The population of Fiji is significant and there are many people in full-time employment without a specific education from Australia. The applicant also stated that his family although not wealthy were reasonably financially stable.

1. The Tribunal has considered the applicant statements however the breach is significant. As a visa holder who is bound by the conditions of his visa, he made no attempt to inform the Department or to rectify the situation and the Tribunal places significant weight on the length of the breach, namely almost 12 months. The fact that the applicant was having problems paying his enrolment fee, does not adequately explain why he would not be able to remain in a registered course of study. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanation.

2. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach of in excess of 12 months is significant in the context of a student study period and the fact that he would be well aware of the expectations placed on him and he was unable to provide any evidence of attempts to inform the Department, nor did he return home which was an option during this period. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

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

   DECISION

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

   Stephen Witts
   Member