Pandey (Migration)

[2019] AATA 3885

Pandey (Migration) [2019] AATA 3885 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ganesh Raj Pandey
Mrs Brinda Subedi

CASE NUMBER:  1720578

HOME AFFAIRS REFERENCE(S):           BCC2017/1996639

MEMBER:Joseph Lindsay

DATE:12 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s (Mr Ganesh Raj Pandey) Class TU visa.

The Tribunal has no jurisdiction with respect to the other applicant, Mrs Brinda Subedi.

Statement made on 12 June 2019 at 1:49pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased enrolment – family bereavement – applicant seeking permanent residency – 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 30 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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. The applicant, Mr Ganesh Raj Pandey, attended the hearing before the Tribunal on 22 March 2019. The applicant’s partner, Mrs Brinda Subedi, did not attend the Tribunal and did not give evidence. The applicant indicated to the Tribunal that Mrs Brinda Subedi would not take part in the hearing.

4. The Tribunal notes that on the application form to the Tribunal, both the applicant, Mr Ganesh Raj Pandey, and the applicant’s partner, Mrs Brinda Subedi, are listed as both being applicants.

5. The Tribunal has jurisdiction to review a decision under the Act if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to cancel visas, but the cancellation of a visa under ss.140(1) or (3) of the Act operates automatically by operation of law and does not involve any decision.

6. The applicant’s partner, Mrs Brinda Subedi, is a dependent on Mr Ganesh Raj Pandey’s student visa. The cancellation of Mrs Brinda Subedi’s visa operated automatically by operation of law under ss.140(1) of the Act. Accordingly, there is no reviewable decision in respect to the decision to cancel Mrs Brinda Subedi’s visa. It follows that the application for review in respect to Mrs Brinda Subedi being an applicant in her own right was not properly made and the Tribunal does not have jurisdiction in respect to Mrs Brinda Subedi’s application to review the decision to cancel her visa.

7. The Tribunal, of course, does have jurisdiction in respect to Mr Ganesh Raj Pandey’s application to review the decision to cancel his visa.

8. The applicant, Mr Ganesh Raj Pandey, was not represented. The applicant spoke English and did not require the assistance of an interpreter.

9. 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

10. 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?

11. 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).

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

13. The applicant indicated he first came to Australia in February 2009. The applicant explained to the Tribunal his student history. The applicant indicated that he held qualifications in business management and accounting. The Tribunal put to the applicant that what he had said in the hearing about his course enrolment history was reflected in his Provider Registration and International Student Management System (PRISMS) record.

14. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 30 August 2017 indicating that he had not been enrolled in a registered course of study since 10 November 2016. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 10 November 2016.

15. 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)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

16. 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.’

    The circumstances in which the ground for cancellation arose

17. The Tribunal asked the applicant what circumstances lead to the ground of cancellation of his course enrolment on 10 November 2016. In response the applicant indicated that he had family problems.

18. He explained that his mother had become sick and that she had been getting worse and worse. He indicated that his mother then passed away. As a result of this event he became mentally disturbed and he couldn’t focus on his studies.

19. The Tribunal asked the applicant what steps he took as a direct consequence of his situation. The Tribunal asked the applicant if he saw a medical practitioner or mental health professional about his mental health issues. In response the applicant indicated that he did not consult a medical practitioner or mental health professional.

20. The Tribunal asked the applicant if he contacted his course provider to consult them about his situation. In response, the applicant indicated he did not consult his course provider.

21. The Tribunal asked the applicant if he approached the Department. In response the applicant said no.

22. The Tribunal put to the applicant that given his student history and the fact that he has held student visas for so long, in his case since 2009, the Tribunal would reasonably expect the applicant, given his extensive experience as a student and as a holder of a student visa over many years, would reasonably know that he had to comply with his visa requirements and that for that reason the Tribunal may place low weight in relation to his circumstances that his mother was sick and passed away.

23. When asked whether he wished to comment on what the Tribunal had put to him the applicant said no. He further indicated that when his mother passed away he went back to his home in his country of origin and spent some time there. He indicated that as a result he did not do anything and did not inform anyone. He indicated that he was “totally aware” of the need for him to comply with this visa conditions on his student visa and indicated that he took responsibility for the fact that he did not comply his visa conditions.

24. The applicant’s evidence at the hearing was reflected in his written submission dated 15 March 2019.

25. In assessing the above, the Tribunal finds that the applicant failed to take reasonable steps in regard to maintaining his enrolment in his registered course of study. The Tribunal accepts that the applicant’s mother became sick and passed away and that this event had an adverse impact on the applicant. However, given the applicant’s extensive student history and the fact that he has held student visas for so many years, the Tribunal finds that the applicant’s actions in failing to consult his provider or the Department, or to consult a medical practitioner or mental health professional was not reasonable in the circumstances.

26. In consideration of the above, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    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

27. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

28. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

29. The only indication the applicant gave in respect to any hardship he may incur as a result of his student visa being cancelled was that he had been in Australia for quite some time holding student visas but had not yet even completed a bachelor’s degree. He indicated that he only had two subjects to do to attain his bachelor’s degree. He indicated that the biggest problem he was facing was that he did not even have a degree. He indicated that it would be a professional disappointment and a personal disappointment to him if he did not finish his degree and he was required to go back to his country of origin.

30. The Tribunal indicated to the applicant that he had attained a number of qualifications in Australia and that if he returned to Nepal he would take those qualifications with him. In response the applicant indicated that these qualifications didn’t count and that it was the bachelor’s degree that he wanted to finish.

31. In respect to the above, the Tribunal accepts that there may be some professional disappointment and a personal disappointment experienced on the part of the applicant if his student visa was cancelled. The Tribunal accepts that the applicant only has two subjects to finish in order to complete his bachelor’s degree.

32. In all the circumstances, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

33. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

34. The applicant indicated that in addition to his partner there was a baby as well. He indicated that his partner is a dependant on his student visa but the baby was not technically on his visa. The Tribunal put to the applicant that it would consider both his partner and baby as being dependants on his student visa who would be affected if his student visa was cancelled.

35. The Tribunal accepts that the applicant’s partner and baby would also be affected if his student visa was cancelled. However, the Tribunal places low weight on this information in the applicant’s favour.

    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

36. The applicant indicated he was aware of the legal consequences of the cancellation of his student visa and he was aware of the three-year exclusion period as a consequence of his student visa cancellation, and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

37. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Nepal.

38. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

39. The Tribunal places low weight on this information in the applicant’s favour.

    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

40. The Tribunal asked the applicant if he feared anything in returning to Nepal. In response the applicant indicated he did have a fear. He indicated his fear was that he was totally broke and he totally had nothing to do. He indicated he felt like he can’t do anything back in Nepal and he had a wife and child now to think about and support as well.

41. In consideration of the above, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

42. When the Tribunal asked the applicant whether there were any other relevant matters before the Tribunal, he indicated that after he finished his bachelor’s degree he wanted to enrol in a master’s degree in agriculture in Australia.

43. The Tribunal put to the applicant that his student history of the courses undertaken during his time in Australia had nothing to do with agriculture. In response he indicated that he had studied a bachelor’s degree in agriculture when he was back in Nepal. The Tribunal put to the applicant that he was in Nepal more than 10 years ago. The Tribunal asked the applicant why he waited 10 years before he would do a master’s degree in agriculture. The applicant indicated that he could not afford the master’s degree in agriculture 10 years ago because it was expensive and he didn’t have sufficient resources at that time.

44. The Tribunal put to the applicant that if he was saying to the Tribunal he was broke, how could he possibly afford the course fees to do a master’s degree in agriculture? In response he indicated that he would sell his property back in Nepal and he would get a bit of help from his family members who are here in Australia. The applicant indicated that the master’s degree in agriculture offered through University of Tasmania cost about $15,000. The Tribunal put to the applicant that as part of having a student visa he would have provided a financial guarantee that he could afford to pay his course fees and support himself during the course of his studies. The applicant indicated that he did a course in information technology because it was cheaper. The Tribunal asked the applicant if he was saying he did the course in information technology because it was cheaper rather than doing the course in agriculture. The applicant indicated he did not do the master’s degree in agriculture because it was too expensive “at that time.”

45. The Tribunal put to the applicant that his student history appeared to have gone on for quite some time. He’d indicated he had already done a bachelor’s degree in agriculture back in Nepal before coming to Australia in 2009 to do approximately 10 years’ worth of study in courses, including accounting and business management. The Tribunal asked the applicant how his student history correlated to his wish to do a master’s degree in agriculture.

46. In response the applicant indicated that the master’s in agriculture is just a degree he had wanted to study for a long time. He indicated that after finishing the two subjects of his bachelor’s degree he would be a graduate, and that once he was a graduate and had residency he could undertake further studies. The Tribunal asked the applicant whether it was his intent to apply for permanent residency. In response the applicant indicated it was his intent to apply for permanent residency if he finished his two subjects and graduated. The Tribunal put to the applicant that the idea of a student visa was that he was a temporary entrant, to which he agreed. The Tribunal asked the applicant whether it was his intent to return to his country of origin if his student visa was cancelled. The applicant responded he would never go unlawful.

47. In respect to the above, the Tribunal does not accept that the applicant has a genuine intent to complete a master’s of agriculture. The applicant does not appear to have the financial capacity to be able to undertake such a course considering he has said he is broke. The Tribunal acknowledges that the applicant would seek to fund his studies and support himself and his family through selling his property back in Nepal and asking for financial help from family members in Australia. However considering the applicant’s statement that he is broke and that he has a family to support, as well is the cost of undertaking a master’s degree in Australia, assuming that he completed the two subjects and completed his bachelor’s degree, the Tribunal is not convinced that the applicant has a genuine intent to enrol in and complete a master’s of agriculture. In addition, the Tribunal’s view in this respect is supported by the fact that the applicant said he completed a bachelor of agriculture in Nepal but has never undertaken any studies in agriculture in the entire time he has been in Australia. Accordingly, the Tribunal gives low weight to this information in the applicant’s favour.

48. The Tribunal accepts the applicant’s assertion that he wishes to ultimately have permanent residency in Australia but notes that this indicates that the applicant is in fact not a genuine temporary entrant in respect to the conditions of the student visa. Accordingly the Tribunal places low weight on the applicant’s evidence in his favour.

    Conclusion

49. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 16 June 2016.

50. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 10 November 2016. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

51. The Tribunal affirms the decision to cancel the first named applicant’s (Mr Ganesh Raj Pandey) Class TU visa.

52. The Tribunal has no jurisdiction with respect to the other applicant, Mrs Brinda Subedi.

    Joseph Lindsay

    
    

    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.