Neagi (Migration)

[2019] AATA 2440

Neagi (Migration) [2019] AATA 2440 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Alif Akash Neagi

CASE NUMBER:  1709561

HOME AFFAIRS REFERENCE:                BCC2017/908510

MEMBER:Lilly Mojsin

DATE:5 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2019 at 1:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no compelling need to remain in Australia – failed a number of subjects – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 April 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(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 course of study and thereby breached condition 8202. Therefore the issue in the present review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant provided a copy of the Department decision with his application for review and appeared before the Tribunal on 27 June 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present review 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?

5. Condition 8202, as it applies in this review, 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).

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

7. The applicant wrote to the Department stating as follows:

   I have not been an enrolled student since 22 June 2016. I wanted to re-enroll at a TAFE institution for July 2016 but was unable to as it was too by the time I applied to start the July 2016 session and was unable to apply for the February 2017 session due to my father falling sick mid January. I was supposed to return to Australia on 6 February but due to my father’s heart condition I was unable to come back in time to apply for the February classes, I had returned one month late on the 7th of March 2017. Right now I am trying to get into a course that is going to allow me to start as soon as possible but it is proving a bit difficult due to most classes having started a while back.

   If my visa is canceled it would cause a great deal of hardship for my family. I am the oldest child in my family and the only one to be studying abroad. My intention behind coming to Australia is to create a better future for me and my family by receiving the best education that I could get. Canceling my visa would stop me from reaching my goal.

   My father was recently diagnosed with having a blocked artery in his heart and had to got through a surgery to remove the block. He still has a few minor blocks that are being treated by medicine. It has been advised by the doctors that he take as little stress as he can and canceling my visa and me returning back to Bangladesh without having completed my education it would put a great deal of stress on him. Please find attached my fathers doctors reports. My mother has also been suffering from Acute stress disorder & insomnia and mood syndrome since 2011 and has been under constant medication as can been seen from her doctors prescriptions attached. The diagnosis can be found on the left hand side of the prescription dated 22/12/2016. Please note although both my parents live in Bangladesh my mother is being treated by a doctor in Kolkata, India. Although my mother is doing relatively well now canceling my visa would cause her to have a break down. I have been a law abiding resident for as long as I have been in Australia and have no history of getting into trouble with the law in the last 3 years that I have lived here. I have also been compliant with all the regulations stated in my visa. I am ready to do whatever it is that I am legally allowed to do to stay in Australia and finish my education. I hope that I have been able to make a strong enough case to not have my visa canceled and am granted stay in Australia to finish my education and better both mine and my family's life.

8. At the Tribunal hearing, the applicant agreed with the Department decision that at the time of cancellation he was not enrolled in a registered course and he was aware that he had not complied with a condition of his visa.

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

10. 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’

11. In regard to the applicants purpose of traveling and stay in Australia, during the hearing the applicant confirmed that his intended purpose of traveling to and staying in Australia was to study a Bachelor of Electrical Engineering at Sydney University.  His evidence to the Tribunal is that he wishes to remain in Australia and to recommence his studies. The Tribunal is satisfied that the applicant's intention at the time of his visa application was to travel and stay in Australia to study. The Tribunal places weight on this factor in favour of not cancelling the visa.

12. The applicant has not demonstrated a compelling need to travel to or remain in Australia other than a desire to complete his studies in Electrical Engineering. The expression 'compelling circumstances' is not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. Departmental policy does not suggest that compelling circumstances would include a student’s desire to complete their studies. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

13. In regard to circumstances surrounding the cancellation and whether the applicant's non-compliance with the visa condition was due to circumstances beyond his control, the applicant stated, in his evidence to the Tribunal that he commenced studying Electrical Engineering in March 2014. His first exam was June 2014, he passed 2 units and failed 3. In the 2^nd semester 2014 exams in November he failed another 3 and passed 3. In 2015 he failed all the exams. He was asked to show cause and the university allowed him to continue.  The university suspended him in April 2016. He did not sit his exams in first semester 2016 because he had been suspended.  He returned to Bangladesh and then came back to Australia in March 2017. In April 2017 his visa was cancelled. He said that he had to wait 2 years after suspension before he could re-apply and he was not able to apply to another university as he was black listed. Not being able to pass exams at university, without some other factor, are not circumstances beyond the applicant’s control. The Tribunal places weight on this factor in favour of cancelling the visa.  

14. When put to the applicant that he reapplied to study after he received the Tribunal’s letter inviting him a hearing, he said that he was unable to apply earlier to restart his education due to his family financial problems. He has not been working and has been at home waiting for an opportunity to reapply and doing some studies. His family financial situation is much better now.

15. The applicant returned to Australia March 2017, despite not being able to reapply to study, due to his suspension, until at least April 2018. He stated that his family financial circumstances did not permit him to re-enrol and these circumstances have only recently changed. The Tribunal does not accept the applicant’s explanation for waiting until just prior to the Tribunal hearing to apply to a university to re-commence studies. He has provided no evidence of his family finances. Further, whilst claiming his family’s difficult financial circumstances, he does not work to support himself in Australia.  The Tribunal does not accept that the applicant’s family were in difficult financial circumstances and he was unable to re-enrol at university. The Tribunal places weight on this factor in favour of cancelling the visa.  

16. There is no other information before the Tribunal to suggest that the applicant has breached any other visa conditions other than condition 8202(2). The Tribunal weighs this factor neither in favour of cancellation nor of not cancelling the visa.

17. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal. The Tribunal weighs this factor neither in favour of cancellation nor of not cancelling the visa.

18. In regard to any hardship which will result from cancellation of his visa, the applicant stated that he and his family would be disappointed. Whilst the Tribunal accepts that the applicant’s parent’s suffer from stress and have a range of illnesses, the Tribunal is not satisfied that the applicant has demonstrated he or his family would suffer hardship for disappointing his ill parents. Therefore the Tribunal weighs this factor in favour of cancellation.

19. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. 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 places little weight on this factor in favour of not cancelling the visa.  

20. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing before the Tribunal to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

21. As 3 years have passed since the applicant was last enrolled and as 2 years has passed since the applicant was excluded from studies and as the applicant only applied to re-enrol shortly before the Tribunal hearing, the Tribunal finds the applicant's breach of condition 8202(2) of his visa to be significant because he did not engage in study for which his visa was granted and he was not fulfilling the purpose of his travel to and stay in Australia. The Tribunal weighs this factor in favour of cancellation.

22. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

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

    DECISION

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

    Lilly Mojsin
    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.