Nepal (Migration)

[2020] AATA 4523

Nepal (Migration) [2020] AATA 4523 (9 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bibash Nepal

CASE NUMBER:  2003528

HOME AFFAIRS REFERENCE(S):          BCC2019/5255774

MEMBER:Vanessa Plain

DATE:9 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2020 at 11:17pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – limited progress in preliminary English course – enrolment refused – applicant retained employment – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 February 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. 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 6 July 2020 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. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) 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?

6. 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)

   ·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).

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

8. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 19 April 2017 for the purpose of undertaking Foundation Studies and a Bachelor of Nursing degree at Western Sydney University. 

9. Information available to the Department in the Provider Registration and International Student Management System (PRISMS) administered by the Department of Education and Training indicated that the applicant had not been enrolled in a registered course since 24 September 2018. Therefore, he does not meet the requirements of subclause 8202(2)(a).

10. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 23 January 2020.  The applicant did not respond to the NOICC.  He informed the Tribunal that the reason he did not respond to the NOICC was that he paid an agent to do it for him, but the agent did not respond on his behalf.

11. At the hearing, the applicant acknowledged that he was not enrolled in registered course from 24 September 2018.  He also contended that he enrolled in an English course in February 2020, although he did not provide any evidence to substantiate that contention. 

12. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 24 September 2018 onwards and on that basis, he has not complied with condition 8202(2)(a).

    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.

14. 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’.

15. In support of his application, the applicant submitted the following documents:

    ·University foundation studies term 3 results

    ·Academic documents for studies completed prior to entering Australia

    ·Property valuation for property owned by the applicant’s mother

    ·Death certificate of family member

    ·Enrolment application for a Certificate IV and Diploma of Leadership and Management dated 4 February 2020

    ·International Student application form for a Bachelor of Entrepreneurship dated 4 February 2020

    ·Statement

16. In his sworn evidence at the hearing, the applicant stated as follows:

    ·His English grades were not sufficient after he finished his foundation studies, he needed a grade point average of 75 to do his Bachelor degree and he didn’t obtain that mark.  He finished his foundation studies in March 2018

    ·He did his Foundation studies at Paramatta campus, but the Camperdown campus told him he could enrol in his Bachelors degree at Camperdown campus with a 65 GPA,  Subsequently, he realised that wasn’t the case and he couldn’t enrol and he became depressed. 

    ·He saw three different education agents to try and re-enrol but they all told him his study gap was too significant.

    ·He didn’t take steps to re-enrol between March and September 2018 because he was too depressed, and he things he was depressed rather than disappointed, although he didn’t take steps to see a doctor. 

    ·He was depressed for the duration of 2019 as he had no one to guide him.

    ·He enrolled in an English course in February 2020.

    ·In 2017 he started working at Macdonalds in Harbourside, where he worked until March 2018, then in October or November 2018, he started working at a different Macdonalds and that is where he has remained working, approximately 11-15 hours per week.

    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      

17. The applicant was granted a student visa for the purpose of studying a foundation program leading to a Bachelor of Nursing at the Western Sydney University.  However, after his enrolment was cancelled on 24 September 2018, he has continued to reside in Australia on the Student visa until allegedly re-enrolling in an English course on 24 February 2020.

18. The Tribunal acknowledges that that applicant took steps to re-enrol in a course and further acknowledges the applications to study leadership and management and a Bachelor of entrepreneurship, however, the Tribunal is of the view that due to the dates on which the applicant applied for these courses, being several weeks after receipt of the NOICC, the applicant applied for these courses to remedy non compliance with the visa conditions as prompted by the NOICC, rather than out of any genuine desire to study either of these courses. 

19. As at the date of hearing, the applicant has not procured an enrolment and the Tribunal considers that the period of time for which the applicant was not enrolled is substantial.  The applicant’s purpose for staying in Australia is not in line with the purpose for which his visa was granted.

20. The Tribunal gives these considerations some weight towards the visa being cancelled.     

    The extent of compliance with visa conditions

21. The applicant has not complied with condition 8202(2)(a).  The applicant has not been enrolled in a registered course between, at a minimum, 24 September 2018 and 24 February 2020.  Although the Tribunal acknowledges that there is no evidence of non compliance with other visa conditions, the Tribunal considers this period of non-compliance with condition 8202(2)(a) to be significant  

22. The Tribunal gives these considerations some weight in favour of the visa being cancelled.

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

24. In the applicant’s Statement, he said that he is the only son in his family and if he returns to his country without a degree his parents will be disappointed in him and he will be depressed.  He stated that his dreams will be shattered if he can’t complete his degree and he was young, depressed and naïve at the time of his decision (to not maintain enrolment).  He said that it is his responsibility to look after his family and be responsible for them in the future. 

25. The Tribunal acknowledges that the applicant will suffer some hardship if he has to return to Nepal without having completed his degree.  However, the Tribunal notes that there is no evidence before to suggest that the applicant will not be able to study in his home country.

26. The Tribunal acknowledges that being unable to complete his degree in Australia may cause him some hardship and embarrassment with his family abroad, however, the Tribunal notes that there is no evidence before it of any family members in Australia who would be effected by the visa cancellation.

27. Based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant and the Tribunal gives this a little weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

28. The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study for at least 2 years.

29. The applicant has stated that he believed he was suffering from depression between March 2018 and September 2018 and all of 2019.  However, the Tribunal notes that the applicant acknowledged that he did not see a doctor, he has not produced a medical report to substantiate his claims, he was working at Macdonalds regularly during the period he claimed to be depressed and on the student application form for the Bachelor of Entrepreneurship dated 4 February 2020, he acknowledges that he doesn’t have a medical condition which may affect his studies. The Tribunal is therefore of the view that if the applicant was suffering from depression, it was not the reason for his failure to maintain enrolment.

30. The Tribunal notes that there is no evidence before it to suggest that the applicant could not have sought a deferment from his course provider if he felt that a medical condition was hampering his studies and he did not do so. 

31. The Tribunal therefore finds that the reason for the breach of the visa condition was not occasioned by a matter reasonably outside of the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

32. The applicant has conducted himself in good faith in his dealings with the Department, notwithstanding that he did not personally respond to the NOICC due to his belief that an agent would attend to it on his behalf.   

33. The Tribunal gives this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

34. There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled.  The Tribunal therefore gives this factor no weight for or against cancelling the visa for this 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

35. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country.  However, these are mandatory consequences of the legislation and in view of the fact that I have found that the reason for the breach of the visa condition was not  reasonably outside of the control of the applicant, I give this little weight in favour of the visa not being cancelled.   

    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

36. Not applicable.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

37. Not applicable.

    Any other relevant matters

38. There are no other relevant matters for consideration.   

39. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.

40. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

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

    Vanessa Plain
    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.