PANDEY (Migration)

PANDEY (Migration) [2019] AATA 2901 (15 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ASMIT PANDEY
CASE NUMBER:  1700408
HOME AFFAIRS REFERENCE:                BCC2016/3366637
MEMBER:Lilly Mojsin
DATE:15 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 15 February 2019 at 10:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased studies – financial support for family – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 189
Migration Regulations 1994, Schedule 8 Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 December 2016 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).
The applicant arrived in Australia in November 2014 in order to study accounting. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study since 22 February 2016 and he therefore did meet condition 8202(2)(a).
The issue before the Tribunal is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The Department decision was attached to the application for review. The Department decision stated that in the Provider Registration and International Student Management System (PRISMS), the applicant was not enrolled in a registered course of study since 22 February 2016.
A Notice of Intention to Consider Cancellation [NOICC] was issued to the applicant by the Department on 6 December 2016.
The applicant obtained a Confirmation of Enrolment (COE 87863887) on 13 December 2016.
In his response to the NOICC the applicant opined that the culmination of a series of adverse events, primarily of a financial and psychological nature, caused the cessation of his studies, whereby he had remained without enrolment in an approved course of study for over 9 months.
The delegate found that there was a ground for cancellation of the applicant’s visa pursuant to s116(1)(b) for a breach of condition - 8202.
REASONS AND FINDINGS
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.
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).
In the present review, the applicant’s visa was cancelled on the basis that not been enrolled in a registered course of study since 22 February 2016 and he had breached condition 8202(2).
The applicant did not deny, at the Tribunal hearing, that he was not enrolled in a course of study from February 2016.
The Tribunal is satisfied that the applicant has not complied with condition 8202(2).
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 the applicant, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Addressing PAM3 criteria:
·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
The applicant’s purpose of a student visa is to enable the visa holder to undertake study in Australia. The applicant advised the Tribunal that he ceased to study at the end of 2015.
The Tribunal finds the applicant's breach of condition 8202 of his visa to be significant because he because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia..
In regard to a compelling need to remain in Australia, the applicant stated that he came to Australia to gain an education and look after his family. He was working and earning money and sending it back to Nepal. But he could not save anything. If the visa is cancelled he will have to go back to Nepal and look after his family. He wants to get a degree. He can study the course in Nepal but it is not as good there as in Australia. He wants to study a Diploma of Hospitality Management. The Tribunal does not accept that these are compelling reasons to stay in Australia.
The applicant's non-engagement in study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.
·The extent of compliance with visa conditions
Other than a breach of condition 8202 there is no evidence before the Tribunal that that applicant has breached any other conditions of his visa.
The Tribunal weighs this factor in favour of not cancelling the visa.
·Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members
The applicant told the Tribunal that cancellation will affect him. He has been in Australia for more than 4 years and has no qualifications. His family are expecting a lot from him. In this situation they will be upset. His mother, father and sister are left in Nepal and he was sending them some money. His other sister is presently studying in Australia. The Tribunal accepts that the applicant’s family will be upset that the applicant has not obtained qualifications since he has been in Australia.
The Tribunal does not accept that disappointing or upsetting family or being unable to work in Australia and send some money back to Nepal amounts to hardship.
Therefore the Tribunal weights this factor in favour of cancellation.
·Circumstances in which ground of cancellation arose.
The applicant first came to Australia in November 2014 in order to study a Diploma of Accounting. He enrolled in a Certificate IV at the Wentworth Institute. His studies were progressing, the course was hard but he did not finish the course as he stopped studying at the end of 2015. He said that he was alone and was misguided. He was working at a restaurant. He was addicted to gambling. He got the money from friends and he worked to pay for his gambling. He did not continue the course. He claims that he is now cured from his gambling addiction. The Tribunal finds that these circumstances are a serious breach of condition 8202 because the applicant did not engage in the study for which his visa was granted and instead gambled.
The Tribunal weighs this factor in favour of cancelling the visa.
·Past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to suggest that the applicant’s past and present behaviour towards the Department has been adverse. There is no evidence before the Tribunal that the applicant has not been co-operative with the Department. There is nothing to suggest that the applicant has been other than compliant in his dealings with the Department.
On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.
·Whether there would be consequential cancellations under s.140
There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes that there is no information before it to indicate that any other person currently holds a visa because the applicant held his visa. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.
·Whether there are mandatory legal consequences
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. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.
The circumstances in which ground of cancellation arose were not due to a relationship breakdown.
The applicant has requested that the Tribunal take into consideration that since his sister arrived in Australia there is now someone to look after him and he wants time to study. The Tribunal accepts that having his sister in Australia would assist the applicant to study. The Tribunal weighs this factor against cancelling the visa.
The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.
The applicant ceased studying in February 2016. The Tribunal is of the view that the applicant was not a genuine student as he has failed to actively engage in study due to gambling. The Tribunal accepts that the applicant is able to study the same course in Nepal. In light of the applicant not being enrolled for a period of 9 months from February 2016 to December 2016 the Tribunal finds that this is a serious breach. The Tribunal determines that the grounds for cancellation outweigh the reasons not to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
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.

[2019] AATA 2901

15 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction