Piyal (Migration)

[2019] AATA 6374

Piyal (Migration) [2019] AATA 6374 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ekramul Islam Piyal

CASE NUMBER:  1813874

DIBP REFERENCE(S):  BCC2018/819389

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:          4 October 2019 at 11:30 am (VIC time)

DATE OF WRITTEN RECORD:                11 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 11 November 2019 at 11:42am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – breakup of relationship – loss of money for fees by gambling – discretion to cancel visa – factors for and against cancellation – consultation of psychologist after receiving notice of intention to consider cancellation of visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 May 2018 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision dated 9 May 2018, made by a Delegate Minister for Home Affairs to cancel the applicant’s subclass 573 higher education sector visa, under section 116(1)(b) of the Migration Act.

4. 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.  The applicant appeared before the tribunal on 4 October 2019 to give evidence and to present arguments.

5. For the following reasons, the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of schedule eight to the Migration Regulations 1994.

6. If the applicant has breached that condition, under section 116(1) of the Act, the visa may be cancelled.  The first question for determination is whether, or not, the applicant complied with condition 8202.  Condition 8202, as it applies in this case, requires the applicant be enrolled in a registered course, or in limited cases, a fulltime course of study or training.

7. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.  An examination of the delegate’s decision record notes that information for the department indicated that the applicant did not maintain enrolment in a registered course of study from 18 August 2017 onwards.

8. A notice of intention to consider cancellation was issued to the applicant on 20 April 2018.  By way of response, dated 3 May 2018, the applicant responded to the notice of intention to consider cancelation.  The applicant did not dispute there was a ground for cancellation in his response to the notice intention to consider cancellation and sought to explain the circumstances that led to the grounds for cancellation.

9. In his response to the notice of intention to consider cancellation, the applicant provided a psychologist’s report of Ms Mina Cantelapolis, consultant psychologist, dated 27 April 2018.  The applicant also provided a copy of a card, demonstrating his attendance at the casino for the purposes of gambling.  The psychologist report speaks to difficulties the applicant had endured in relation to gambling, which the applicant, in his evidence, asserted led to the particular breach in question.

10. In the applicant’s oral evidence at hearing, the applicant admitted he was not enrolled in a registered course, at the relevant time and gave reasons for that non-enrolment.  The reasons for that non-enrolment are set out, at length, in the psychologist’s report.

11. In summary, the applicant claimed that he was unable to pay his tuition fees, which led to the cancelling of his enrolment due to him having gambled and lost the money for his fees at a casino.  The applicant gave further evidence that, in or around the time, in early 2017, he went through a relationship breakup with his girlfriend and started gambling as a result of that breakup, as a means of dealing with the difficulty in the fallout from that relationship.

12. The applicant gave further evidence that he borrowed money from various friends, he used money given to him by his parents for his tuition fees and gambled those funds away.  On the evidence before the tribunal, the tribunal is satisfied that the applicant was not enrolled in a registered course from 18 August 2017 onwards.

13. Accordingly, the tribunal finds that the applicant has not complied with condition 8202.  Having found the applicant has not complied with the condition of the visa, the tribunal must now 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, pam three, general visa cancellation powers. 

15. As to the purpose of the visa holder’s travel and stay in Australia, the tribunal notes that the applicant was granted a student temporary class higher education sector subclass 573 visa on 30 November 2016 for the purpose of undertaking an approved, higher education level course of study at Holmes Institute, being a course in a Bachelor of Accounting.

16. There is no evidence before the tribunal that the applicant was granted the visa for a purpose other than study.  There is certainly no evidence before the tribunal that the applicant’s original intention in coming to Australia, for the purpose of undertaking study, was not consistent with that reason.

17. However, the tribunal notes that after the enrolment was cancelled, the applicant continued to reside in Australia for more than eight months, before receiving the notice intention to consider cancellation.  And therefore, the tribunal considers that the purpose of study – the purpose of the stay of the applicant, is no longer consistent with the original intention. 

18. And therefore, the tribunal gives this little weight in favour of the applicant.  Whilst the tribunal finds, on the basis of the evidence, the applicant has no compelling need to remain in Australia permanently, the tribunal has some concern as to the length of time the applicant has remained in Australia without studying.

19. And the tribunal, therefore, gives this little weight towards the visa not being cancelled. 

20. As to the extent of compliance and visa conditions, the applicant has not complied with condition 8202 (2).  On the basis of the evidence, the tribunal finds that there is no particular compelling reason for non-compliance with the visa condition.

21. The tribunal notes that there is over eight months of time that has lapsed between the period of cancellation of the enrolment and receipt of the notice of intention to consider cancelling.  The tribunal has some concern that the procurement of the psychologist’s report by the applicant was undertaken on the advice of the applicant’s migration agent and was done after receipt of the notice intention to consider cancelling.

22. The psychologist’s report demonstrates and sets out that the applicant first consulted the psychologist in a face to face assessment on 24 April 2018.  That date is several days after receipt of the notice of intention to consider cancelling on 20 April 2018.

23. Therefore, the tribunal has some concern that there is no evidence of the matters described in the psychologist’s report being sought prior to the receipt of the notice of intention to considering cancelling the visa.   

24. On the basis of the evidence, there is also nothing for the tribunal to indicate that there are any other breaches of visa conditions.  The tribunal gives this a little weight in favour of the applicant.

25. As to a degree of hardship that may be caused to the applicant if the visa remains cancelled, the applicant gave evidence of the difficulty that he would face with his parents, having to return home to Bangladesh in circumstances where he had not completed his degree.  The applicant expressed some concern about the fact that his parents have given him money for his tuition fees, which he has gambled away, and it would be a waste of funds to have to return home after five years with no degree.

26. The tribunal accepts that the cancellation has led to some personal detriment for the applicant and that he has suffered some hardship as a result of the cancelation.  However, there is no evidence before the tribunal about the family members in Australia being impacted by the cancelation.

27. Therefore, the tribunal gives this minimal weight towards the visa not being cancelled. 

28. The tribunal turns now to the circumstances in which the grounds for cancellation arose.  As stated previously, the applicant has provided a psychologist’s report of Mina Cantelapolis, consultant psychologist, dated 27 April 2018.

29. That report was compiled three days after the applicant first consulted with the psychologist on 24 April 2018.  That document speaks at length to post-traumatic stress disorders and gambling disorders that the applicant claims he was suffering on, or around, the time of the cancellation of his enrolment and that these matters are matters which led to the cancellation of his enrolment.

30. The applicant gave evidence that he could not pay his fees for tuition at the time because he spent those moneys, for his tuition fees, gambling.  The applicant gave further evidence that this was a very difficult time in his life, he didn’t realise how far matters had escalated until he received the letter from the immigration department, being the notice of intention to consider cancellation.

31. The applicant further gave evidence that he did not seek to take steps to appeal the cancelation of his enrolment at the time, the reason for the applicant not taking steps to appeal the cancelation of his enrolment at the time was that he knew he did not have the funds to pay for tuition because he had, on his evidence, gambled those funds away.

32. The tribunal has some difficulty accepting that the matters set out in the psychologist’s report led to the particular breach in question.  The reason the tribunal has difficulty accepting the evidence in the psychologist’s report is that it has been procured by the applicant after receipt of the notice of intention to consider cancelation.

33. It has been procured by the applicant on the advice of his migration agent and there is no evidence before the tribunal, being medical evidence or other expert evidence, of the matters set out in this psychologist’s report before receipt of the notice intention to consider cancellation.

34. The applicant gave further evidence that he has had four sessions with the psychologist in April and May 2018 in relation to the difficulties he suffered with his gambling. 

35. In the circumstances, the tribunal is unable to find, based on the matters in the psychologist’s report and the timing of its procurement, that the matters described therein led to the grounds for cancellation.  Based on the evidence, the Tribunal finds that the grounds which led to the cancellation were reasonably within the applicant’s control.

36. Further, the applicant gave evidence that the reason he did not return home to his home country at the time, rather than remain in breach of his visa condition, was that due to having gambled funds away, it was not a possibility for him to financially go home at the relevant time. 

37. The tribunal has some sympathy for the position the applicant found himself in at the time, however, in view of the matters I have just described, the tribunal cannot be satisfied that the circumstances which led to the cancellation were not reasonably within the control of the applicant.

38. The tribunal gives this significant weight toward the visa being cancelled. 

39. As to past and present behaviour towards the department, there is no evidence before the tribunal of anything other than good faith on the part of the applicant in his dealings with the department in the past.

40. The tribunal notes that the applicant did respond promptly on 3 May 2018 to the notice of intention to consider cancelling the visa.  And the tribunal gives this good conduct some weight in favour of the visa not being cancelled. 

41. The applicant gave evidence that there are no persons in Australia whose visas would be consequently cancelled under the act as a result of his visa cancellation.

42. The tribunal therefore, gives this factor no weight in favour of the visa not being cancelled. 

43. As to whether there were any mandatory legal consequences, such as whether the cancelation with result in the visa holder being unlawful and liable to detention in Australia, the tribunal notes that if the visa were to be cancelled, the applicant would be excluded from making certain applications to certain types of visas and maybe if he does not depart from Australia within the relevant time, liable to be detained and removed from the country.

44. However, given the circumstances I have described above, this would not be manifestly unfair and the tribunal notes that these are mandatory consequences of the legislation and the tribunal therefore, does not give this factor significant weight in favour of the visa not being cancelled. 

45. As to whether there are any international obligations, including non-refoulment and best interests of the children as a primary consideration, the tribunal notes that this factor is not relevant to this applicant and therefore, gives it no weight in favour of the visa not being cancelled.

46. As to whether there are any other relevant matters, the tribunal notes that the applicant has provided, to the tribunal at the hearing today, a copy of the current student confirmation of enrolment.  The confirmation of enrolment is for a Bachelor of Accounting degree at the Group Collages Australia Proprietary Limited.

47. The applicant was supposed to start this course on 27 August 2018 and it is scheduled for completion on 11 December 2020.  The applicant gave evidence that he has paid for four semesters of tuition in that course of accounting, the applicant gave further evidence that, over those four semesters commencing on 27 August 2018, he has attended some classes and not attended others.

48. However, the applicant informed the tribunal that he has not sat exams for any of the classes that he has undertaken, that is to say he has not sat exams for any of the four semesters that he claims to have paid for.

49. This causes the tribunal some concern.  The tribunal informed the applicant that his attendance at classes, but failure to sit exams over four consecutive semesters, is an issue that causes the tribunal some concern and he was invited to respond to that concern. 

50. The applicant informed the tribunal that, at the time, he was unsure as to what was happening with his visa.  That he ensured that he paid for each semester because he did not want to be in breach of his visa condition by not being enrolled in a relevant course of study.

51. However, the applicant gave evidence that he was not sure that he would be able to pass his exams, that his brain was not in the right frame of mind, or was not working at the time, and that is the reason for his non-sitting of exams across four semesters. 

52. The tribunal is unable to find that these reasons are a satisfactory and reasonable explanation for failing to sit four semesters worth of examinations in the circumstances.  And the tribunal gives this conduct some weight in favour of the visa remaining cancelled. 

53. It is clear that the breach does not reveal any bad faith on the part of the applicant. However, based on the matters I have described above, it is clear that the matters which led to the breach were reasons within the applicant’s control.  It is also clear that the considerations I have arrived at, on examining all the evidence before me, lead towards the visa being cancelled and I so find. 

54. Considering the circumstances as a whole, the tribunal concludes that the visa should remain cancelled. 

55. The tribunal affirms the decision of the delegate to cancel the applicant’s visa.  This decision is made at 11:30am on 4 October 2019. 

    DECISION

    The Tribunal affirms the decision under review.

    Vanessa Plain
    Member