Neupane (Migration)

[2019] AATA 1481

Neupane (Migration) [2019] AATA 1481 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek Neupane

CASE NUMBER:  1700293

HOME AFFAIRS REFERENCE(S):           BCC2016/3918764

MEMBER:Mr S Norman

DATE:31 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 31 January 2019 at 10:42am  

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – applicant not enrolled in registered course – breach of condition – tribunal not satisfied applicant intended to study – tribunal not satisfied circumstances were outside his control – no compelling circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 189, 198
Migration Regulations 1994 (Cth), Condition 8202, Public Interest Criterion (PIC) 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 January 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was determined to have breached condition 8202(2)(a) – enrolment. 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 30 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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 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 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 23 May 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 16 December 2016, the applicant was advised 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 1 March 2016. It therefore appeared that the applicant had breached condition 8202(2)(a); and that his visa may be cancelled pursuant to s.116(1)(b) of the Act.

8. The applicant requested and was granted an extension of time to reply. On 24 and 31 December 2016, the applicant replied to the NOICC. However, he did not dispute there were grounds to cancel his visa. When discussed at the Tribunal hearing, the applicant again did not dispute there were grounds to cancel his Student visa.

9. On the evidence before the Tribunal, 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

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. Regarding the purpose of the (now almost 23 year old) applicant’s travel to and stay in Australia, the applicant said he travelled from Nepal to Australia to reside with his family in 2010 (after his father accepted work as a driver at the Nepal Embassy in Canberra). He said his father subsequently wanted to return to Nepal and had arranged for the applicant to be granted a Student visa (on 23 May 2014). The applicant had said his intention was to study a Diploma of Hospitality and a Bachelor of Business at the Holmes Institute P/L. However, the applicant had not been enrolled in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) course since 1 March 2016.

12. When discussed at hearing, the applicant conceded that he had failed to attend classes prior to 1 March 2016. Also, that in the almost three years since 1 March 2016, he had not engaged in any material study in Australia. At hearing, the Tribunal noted the conditions attached to a Student visa are commonly referred to in the Department letter granting the visa. When asked why he failed to study if he was on a Student visa, he said his father had arranged the Student visa for him and he did not read any information about it. The Tribunal then put to him that irrespective of whether he read any information about the grant of his Student visa, I may find (and now do find) that he should have understood that if he resided in Australia on a ‘Student’ visa, he was required to have engaged in some form of academic pursuit. That being said, based on the evidence before it, and notwithstanding the applicant’s claims to the contrary, the Tribunal is not satisfied his present intention for remaining in Australia, is for the purposes of study.

13. Regarding the extent of compliance with visa conditions, the applicant was last enrolled in a registered course was 1 March 2016. As also stated above, at hearing he conceded that he had not engaged in any material study in Australia since that time. The Tribunal believes this breach to be significant.

14. Regarding the degree of hardship that the applicant or his family may suffer if his visa is cancelled, he said if he departed Australia he would die in Nepal and his life would be destroyed.[1] When discussed at hearing, the applicant referred to ‘killings’ in Nepal. The Tribunal put to the applicant that if he was referring to past violence in Nepal, that had substantially decreased. The country information stated:

    2.34 The overall security situation throughout Nepal has dramatically improved since the end of the conflict. However, poverty, unemployment, weak rule of law and a culture of impunity are causes of insecurity in Nepal. …[2]

    [1] Department – folio 13.

    [2] DFAT Country Information Report, Nepal, 21 April 2016.

15. The applicant then referred to crime in Nepal. However, and again, the country information considered did not indicate that crime in Nepal was sufficiently serious such that it would be (ie) unreasonable for the applicant to return to Nepal. The Tribunal also notes the applicant’s father, mother and brother were said to have returned to Nepal in 2016 or 2017 and though he speaks with them every week (principally his mother), no claim was made they were suffering from crime either as a result of returning to Nepal from Australia (after 7-8 years in Australia - they had arrived in 2009/2010 on a Diplomatic visa), or that they were subject to any crime at all.

16. Further, though the applicant said he was not as close with his father (due to some personal problem), they still spoke to each other, and the applicant was still close with his mother and brother. The Tribunal did not wish to make the applicant’s case, but he didn’t suggest he could not reside with his family should he return to Nepal.

17. In writing, the applicant had also said his ‘family will face a very big problem’ if his visa is cancelled. When discussed, the applicant was not certain whether his father worked in Nepal. He also said he would not be able to send money to his family in Nepal if his visa was cancelled (though the Tribunal understands he does not now send money to his family in Nepal). The applicant then said that he works around 20 hours a week in Sydney at Pizza Hut (for the last two years at Sutherland – and for three years at Dickson ACT), that though he could not afford to study in Australia, his migration agent said he would loan him the money to do so (the agent operates a restaurant and the applicant was to work at the restaurant before and/or after he finished). The applicant also said he had completed two out of ten units for a Diploma of Hospitality, and that it would take him about 18 months to complete the Diploma. The Tribunal then noted that for the next 18 months he would not be able to send money to his family in Nepal, and for possibly a few years after that he could not send money to his family (as he would initially be paying for his upkeep and education, then he would be paying for his upkeep and repaying his agent). The applicant agreed this was correct. After considering the evidence, the Tribunal is not satisfied the applicant’s ‘family will face a very big problem’ if his visa is cancelled.

18. Next, the applicant did not believe he could find work in Nepal. The country information stated:

    2.9 Nepal’s economic growth has been adversely affected by political uncertainty and conflict. The focus on political transition and the attainment of peace has meant inadequate attention has been given to economic and other reforms that would improve the investment climate, stimulate growth and create more private sector jobs. The earthquake of April 2015 and the subsequent aftershocks had a negative impact on the economy. The 2015 political dispute in the Terai, which restricted trade and services across the Nepal/India border, also affected growth. [3]

    [3] DFAT Country Information Report, Nepal, 21 April 2016.

19. The applicant’s father had travelled to Australia to work as a driver at the Nepal Embassy in Canberra (and he had remained there from 2009 to 2016/2017). The applicant also said he (the applicant) could find better work in Nepal after having obtained qualifications in Australia. The Tribunal accepts this may be correct. The Tribunal also accepts the applicant might have been able to access better work opportunities for the time he remained in Australia, if his visa was not cancelled.

20. Next, the applicant said he had ‘adapted to life in Australia’ and he could not read and write Nepali. He said his brother in Nepal, was having difficulty studying there. However, the applicant arrived in Australia immediately before his 14^th birthday and had so far resided here for nine years. The Tribunal then said he had lived most of his life in Nepal (where his family and or extended family presently reside), and I may be satisfied (and am now satisfied) he could re-integrate into Nepal society. Next, the applicant said he could not read and write Nepali. However, the Tribunal noted he could speak Nepali (something he conceded at hearing) and I said that I may find (and now do find) that he was better placed (than a non-Nepali speaker) to learn how to read and write Nepali on return (at hearing, he said he could not read and write Nepali when he arrived in Australia).

21. After then considering all his evidence, the Tribunal is satisfied the applicant or his family may suffer some limited form of hardship if his visa is cancelled.

22. Regarding the circumstances which gave rise to the ground for cancellation, the applicant said he wished to complete his studies in Australia, that he came to Australia in 2010 when he was almost 14 years of age; that he “never imagined he would have … such a big problem after so many years”, that he did miss a lot of classes and he is sorry for this; and that he wishes to have one last chance.[4]

    [4] Department – folio 15.

23. When discussed at hearing, the applicant referred to his mother’s health. He did not provide much detail, but the Tribunal understands the applicant eventually moved to Sydney (from Canberra) in or around early 2015 to study; that he needed to return to Canberra on weekends to transport his mother for medical checks (which the Tribunal accepts), that this disrupted his study. However, as noted by the Tribunal at hearing, his mother returned to Nepal around 2016/2017, and even since that time, he had not claimed to have engaged in any material study in Australia. Therefore, the Tribunal is not satisfied his mother’s health explains why he did not continue his studies in Australia.

24. The applicant had also referred to not having enough funds to study in Australia. However, the primary objective of a Student visa holder in Australia is remain registered and enrolled in a CRICOS course. The applicant did not do this. Further, if he was not able to study in Australia as required by his Student visa, the applicant should have departed Australia.

25. When discussed at hearing, the applicant referred to his father requiring the applicant to be removed from the father’s Diplomatic visa and to be placed on a Student visa. He said (words to the effect) it was his father’s fault that his visa was cancelled. The Tribunal does not accept this claim. As stated above, he should have understood that if he resided in Australia on a ‘Student’ visa, he was required to have engaged in some form of academic pursuit.

26. At hearing, the applicant did say he was (words to the effect) enjoying socialising with his Australian friends and he did not understand there would be a problem. However, after having considering all the evidence, the Tribunal is not satisfied the circumstances giving rise to the ground his visa was cancelled, were outside his control.

27. At the end of the hearing, the applicant also referred to suffering depression when his visa was cancelled. This was the first occasion the applicant had referred to depression. When then discussed, he did not say he had sought any treatment for same, and the Tribunal notes he was able to keep stable employment for many years, including after his Student visa was cancelled. The Tribunal therefore does not accept the applicant’s claimed depression caused him to cease his studies.

28. Next, there is no evidence before the Tribunal that the applicant has been uncooperative with either the Department or the Tribunal. There is no evidence before the Tribunal that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

29. Next, if the applicant’s visa is cancelled he would become an unlawful noncitizen and liable to detention under s.189 and removal 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. I also accept the applicant would be able to temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.

30. 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. 

31. As referred to above, the Tribunal notes the grant of a Student visa allows a non-citizen to travel to and reside in Australia for the purposes of study in an appropriate course. The applicant did not do this. Notwithstanding those of the applicant’s claims that I have accepted above, I do not accept there are any compelling circumstances that should prevent the Tribunal from exercising the discretion to cancel the applicant’s Student visa.

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

    DECISION

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

    Mr S Norman
    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.