Pandey (Migration)

Pandey (Migration) [2020] AATA 3837 (12 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Diwakar Pandey
Mrs Sujata Chhetri
CASE NUMBER:  1917329
HOME AFFAIRS REFERENCE(S):          BCC2019/1535163
MEMBER:Mark O'Loughlin
DATE:12 May 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicant.

I, Member M O’Loughlin, certify that this is the Tribunal’s statement of decision and reasons.
Dated 12 May 2020 at 11.28 am.

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled in a course of study – withdrew from unsatisfactory course – claims that circumstances were beyond applicant’s control not supported by evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 198, 348
Migration Regulations 1994 (Cth), Schedule 8, Visa Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 June 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (“the applicant’s”) Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant breached a condition of his visa by failing to maintain enrolment in a relevant course and because the grounds for cancelling the visa outweigh the reasons not to cancel it. The issues in the present case are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicant appeared before the Tribunal by telephone on 25 March 2020 to give evidence and present arguments. At the conclusion of his evidence the applicant indicated that he was content with the telephone link and did not believe that a compromised his ability to give evidence.
The applicant was represented in relation to the review by his registered migration agent.
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
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.
The applicant has provided documentation in relation to his application into this review the Tribunal has relied on the following such documents in making its decision; –
·report Dr Matthew Rathjen dated 14 December 2018;
·decision of the delegate dated 26^th of June 2019;
·marriage certificate of applicant and secondary applicant dated [date];
·correspondence from the applicant’s migration agent in response to a notice of intention to consider cancellation, which response was undated but comprising folios 39 and 40 of the documents provided to the Tribunal by the secretary; and
·submissions prepared by the applicant’s migration agent dated 18 March 2019 attaching the birth certificate of the applicant’s son [name] born on [date].
The Tribunal has not relied on any other documents in making its decision.
Did the applicant comply with Condition 8202?
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)
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The applicant’s evidence on this point, which the Tribunal accepts, was that his enrolment was cancelled on 4 May 2018 and from that time on he was not enrolled in a relevant course.
On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers’.
The applicant gave evidence that he had first come to Australia to study on 12 February 2007. At that stage he was doing a Diploma in Nursing.
The college at which he was studying closed and there was some interruption but ultimately he finished a Diploma in Community Welfare, a Diploma in Nursing (which he finished in 2013), and a bachelor of nursing which was awarded in 2017. The applicant moved to Adelaide to study the Bachelor of Nursing.
He gave evidence that it should have been a two-year course but that he took an extra year because of what he described as “a problem with assignments”. When asked what type of problem indicated that he could not meet the fees and could not therefore submit assignments.
He said that he could not meet the fees because his mother was going through a health problem and he had to go home and help her.
He said that because his wife was working and because he was close to the end of the degree they did manage to pay the fees and so the degree was awarded.
The tribunal noted that the submissions said that he completed his bachelor of nursing in May 2017 and that in September 2017, about four months later, he applied to do a dual degree in a Master of Business Administration and Master of Public Health. The applicant agreed with that timeframe and said that he wanted to pursue education in public health.
He said he did not have any real interest in business but that his agent recommended the course. He understood that the two parts of the course will be taught separately and that he could concentrate on public health and not concern himself with the business aspect of the course.
He said that when the course started he found that the teaching was not separated and that he had to do the business which he was not well prepared to do. He said that he did not have any background knowledge about business and he found the study difficult.
He said that he began to fall behind and that based on that experience he does not now believe that he would pass a Masters that has a business component.
He gave evidence that he does not know whether Torrens University now offers a Masters in Public Health by itself although he understands that Flinders University does. When asked if he would be able to get into the course of Flinders he said he understands that he is eligible to apply.
The applicant agreed that his enrolment in the dual Masters was cancelled on 4 May 2018 although he could not say exactly when he was advised of that cancellation.
He gave evidence that he wants to return to Nepal after he does his Masters in order to give back to his community.
The applicant was asked whether he received a notice of intention to consider cancellation. He said that he did. The Tribunal notes that the delegate’s decision indicates that a response was provided on 4 June 2019. The applicant said that he had read the submissions provided in response and agreed with them and further he had read the submissions sent to the Tribunal on 18 March 2020 he agreed with those as well.
The applicant confirmed that the dual Masters course started in September 2017 and that he persevered for 5 to 6 months which was until about February or March 2018.
He said that at the time his enrolment was cancelled on 4 May 2018 he was suffering from stress so he was not studying. He said he was working 20 hours a week and going through his daily life.
When asked what stress he was under he said that it was due to his visa conditions. The Tribunal noted that this was during the time before he had been advised of the potential visa cancellation. He said that he was still stressed about his non-compliance with visa conditions.
He also said that he was stressed because his enrolment had been cancelled and the college did not contact him.
The Tribunal observed that he was not attending college, he was not studying, and cannot presumably have been under the misapprehension that he was still a student. He was asked why, in those circumstances, the failure of the University to advise him that his enrolment had been cancelled could have contributed to his stress.
He said that he was on a student visa but that they did not send any warning, he said he thought he needed to go back home but he couldn’t, and that he wanted to hide. He said he was in a stressful situation and he was trying to hide.
The Tribunal asked whether that was because he wanted to stay in Australia. He denied that saying that he wanted to return to study. He said that he spoke to an education consultant about getting to back to study but ultimately he could not return to study because of the stress and the hardship.
When asked what sort of hardship he said his wife had stopped working and he was only doing 20 hours work a week and that the hardship was financial.
He then said that in fact he was only doing about 14 hours per fortnight and that therefore he did not have the financial capacity to do any other study.
The applicant said that he had not worked more than two or three shifts a fortnight since the time of his visa cancellation.
The applicant said that his wife had stopped working because she was pregnant. The applicant agreed that she became pregnant about November 2018 and that his enrolment was cancelled about five months before then. He then agreed that his wife’s pregnancy did not contribute to the cancellation of his enrolment board whose foot failure to re-enrol in anything at that time.
His evidence was that it was simply a matter of stress that he could not cope with.
He said that he had not had other visa breaches.
He said that he had always been a good student and always been progressing. The Tribunal notes that this is inconsistent with his evidence that there has been an earlier financial problem that has stopped him from submitting assignments causing a delay of about 12 months in his study.
He said that for about the last four years he had been working in a nursing home and that before that he had worked in hospitality as a casual. Before she left work to have a baby, his wife was working as a kitchen assistant in an aged care facility where she had been for about five years. She gave that up when she was about seven months pregnant.
He said that the couple were only making a basic income even when both were working and that the university fees were $16,000-$17,000 per semester which meant that they were experiencing a financial crisis.
He indicated that they did not have financial support from home because his mother’s health meant she could no longer support him. He said her ongoing treatment costs the family $4,000 to $5000 per month.
The applicant was asked what work he would be seeking in Nepal and he said he thought that it would be in community welfare. He had not made inquiries because he believed he needs to get his further qualifications first.
He was asked whether he had made inquiries from potential employers about the sort of skills he would need to get work and he said that it is too soon to do that, that he is not intending to go home soon and he intends to do more study and get more skills. He said he has not yet completed his knowledge.
In relation to the stress and its contribution to his inability to enrol in an alternative course the applicant said that he had not been mentally capable of making a decision.
He said that he had not sought help with his mental state.
He agreed that the main stress factors were his mother’s ill health, his nervousness about his visa breach and his financial difficulties.
He said that he had lost about $6,000.00 or $7000.00 in fees on the dual Masters. He said he did not believe he would get any credit for study done and would need to restart.
He said that his wife did not really understand the current visa situation and that if the visa is cancelled, she will suffer emotional hardship and that she will be sad, frustrated and anxious and that it will be “devastating” with a seven month old son.
When asked to explain that, the applicant said that she had been with him for 10 years and supported him financially and that she would be distressed because she wanted him to get the masters. He said that he had not explained the visa cancellation to her.
The applicant said that he had also kept the cancellation of his visa from his mother and brother who would also be upset because they are expecting him to return with a Masters.
He said he understands that if his visa is cancelled his wife and child will have their visas cancelled as well.
The applicant said that he believes the Masters is two years full-time study Flinders University and that he understands there is an intake in June or July 2020.
As far as his life in Nepal he said that is quite safe there and does not fear returning for any reason.
When asked if there is anything general he wished to tell the Tribunal he said that his intention was always to come here and study and that he is remorseful that he struggled with the Masters and believes that given another opportunity he could succeed.
The Tribunal is directed by the departmental guidelines to consider the purpose of the visa holder’s travel to and stay in Australia.
Tribunal finds that the visa holder is unable to articulate any imperative for travelling to or remaining in Australia beyond a desire to improve his “knowledge”. The visa holder has made no enquiry as to his employability should he obtain the Masters that he says he proposes to study.
The applicant says that such study is not available to him in Nepal although it is not clear what, if any, investigations he has made into that.
The Tribunal notes that the applicant’s enrolment was cancelled on 4 May 2018 and the delegate’s decision to cancel his visa is made on 26 June 2019, over 13 months later. The Tribunal finds that this is a substantial breach of condition 8202 (2) (a).
The applicant claimed that he would suffer hardship if his visa was cancelled because he would be denied the opportunity to improve his knowledge and obtain a Masters degree. The applicant said that he believes that a Masters degree will improve his employability in Nepal but he did not lead any corroborative evidence about that and the Tribunal is not satisfied that the applicant will suffer financial hardship if he does not complete the Masters.
The applicant said that he, his wife, and his family would be distressed if he does not obtain his Masters. The Tribunal did not have the benefit of evidence from the applicant’s wife nor were there any supporting statements from his family. The Tribunal accepts that the applicant and his family will be upset and may suffer emotional hardship if the applicant is visas cancelled.
The applicant said that he had spent $6000 or $7000 on fees the Masters and that he will not be able to recover that money. The applicant does not propose to complete that course and so if the loss of those fees is a financial hardship to him is not a hardship that can be avoided by not cancelling his visa and so it is not a relevant consideration for the Tribunal.
The applicant has not made out that financial, emotional, or other hardship will be suffered by him or his family if his visa is cancelled.
The applicant’s enrolment was cancelled after he stopped attending classes.
He gave evidence, and the Tribunal accepts, that he stopped attending classes because he assessed himself as unlikely to pass the course. This was because it included a business component and was clearly not an appropriate course for the applicant to do as he had neither interest nor background in business.
The applicant further gave evidence that he could not enrol in an alternative, more appropriate course because various stressors robbed him of his ability to focus his attention on such matters.
The applicant’s evidence is not corroborated in any way in this regard and in particular there is nothing from the education consultant who whom the applicant claims he spoke. The applicant’s evidence about the various factors contributing to his stress is unconvincing. It is clear that the applicant was aware that his enrolment was likely to have been cancelled at about the time that it was indeed cancelled.
The tribunal is not satisfied that the cancellation of the applicant’s enrolment arose from circumstances that were outside his control.
There is no evidence that the applicant has been other than truthful and cooperative in his dealings with the department.
The applicant claims that both his wife and his son will have their visas cancelled under section 140 if his visa is cancelled. Tribunal notes that there is no application in relation to the applicant’s son and the Tribunal does not have jurisdiction in relation to any visa he may hold. In respect of the applicant’s wife, her visa was issued for the purpose of allowing her to accompany her husband and its cancellation is an ordinary consequence of the cancellation of her husband’s visa. The Tribunal affords this consideration little weight against cancelling the applicant’s visa.
If the applicant’s student visa is cancelled the visa holder may become an unlawful noncitizen and if he does not take successful steps to obtain another visa or a bridging visa he will be liable to detention under section 189 and removal under section 198 if he does not leave voluntarily.
Cancellation of the visa may compromise any future visa grants and in particular the applicant will come within the risk factors defined in the Public Interest Criterion 4013 which means he will be ineligible for the grant of another visa to Australia for three years after the cancellation of his student visa.
There is nothing before the Tribunal that suggests that cancellation would result in any breach of Australia’s international obligations.
The tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.
The Tribunal has weighed the consideration set out above together. The Tribunal finds that although the applicant suggests that the grounds were cancellation arose from matters beyond his control, namely stress, there is insufficient evidence to satisfy the tribunal that this is the case.
Having weighed all the evidence above together the Tribunal finds that the grounds for cancelling the visa are not outweighed by the reasons not to cancel it.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.
Mark O'Loughlin
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.

[2020] AATA 3837

12 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice