Pokhrel (Migration)

[2019] AATA 6293

Pokhrel (Migration) [2019] AATA 6293 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akash Pokhrel

CASE NUMBER:  1720757

HOME AFFAIRS REFERENCE(S):          BCC2017/2014805

MEMBER:Peter Haag

DATE:20 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2019 at 8:51am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8202–had not been enrolled in a registered course of study – no compelling need to remain in Australia– inconsistent evidence – credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 189, 198
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 1 September 2017 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).

2. The delegate cancelled the visa on the basis that the delegate was satisfied the applicant failed to comply with visa condition 8202, namely, the applicant was not enrolled in a registered course of study at the time of the decision. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 29 August 2019 to give evidence and present arguments.

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 of study.

8. The applicant arrived in Australia on 4 April 2014 as the holder of a Student visa (Temporary) (Class TU) Higher Education Sector (Subclass 573). The applicant gave evidence to the effect that the purpose of the visa was to enable him to study in the higher education sector and specifically, to complete a package of two courses: first, the Diploma in Information Technology; and second, the Bachelor of Information Technology and Telecommunications - the finish date of that course was November 2015. In evidence, the applicant accepted he did not complete the Diploma course and that the education provider cancelled his enrolment in the course on 26 October 2016. The applicant did not commence the Bachelor of Information Technology. According to the evidence, the applicant has not been enrolled in a registered course of study and fulfilling the purpose for which the visa was granted, since 26 October 2016; nevertheless, he continues to reside in Australia.

9. The evidence before the Tribunal reveals the applicant was not enrolled in a registered course of study on 1 September 2017, the time the delegate cancelled the visa. Accordingly, the applicant failed to comply with condition 8202(2)(a), a mandatory condition of the visa, therefore the Tribunal finds that the ground for cancellation of the applicant’s Student visa is made out.

   Consideration of the discretion to cancel the visa

10. Having found that the applicant failed to comply with a mandatory 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 relevant matters set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ (s.109, s.116, s.128, s.134B and s.140).

    The purpose of the visa holder’s travel to and stay in Australia, including whether the applicant has a compelling need to remain in Australia

11. The purpose for which the applicant applied for the Student visa was to enable him to complete the package of two courses comprising the Diploma of Information Technology followed by the Bachelor of Information Technology. This study purpose was, according to the applicant’s evidence, his reason for travelling to and staying in Australia. After the applicant’s enrolment was cancelled and he was no longer fulfilling the purpose for which he claims he obtained the Student visa and travelled to Australia, the applicant stayed in Australia.

12. The applicant advanced a number of reasons for staying in Australia after cancellation of both the enrolment and the visa. Essentially those reasons are as follows: he didn’t want to face his parents and tell them his enrolment was cancelled; his parents would be upset; he wanted to continue studying in Australia; and he was waiting for the Department to cancel the visa and for the resulting opportunity to appeal against that decision to arise. In the circumstances in which the applicant was no longer fulfilling the purpose for which he applied for the visa and travelled to Australia, and having regard to the applicant’s reasons for remaining in Australia, the Tribunal is not satisfied the applicant has a compelling need to stay in Australia.

    The extent of compliance with these conditions

13. The applicant, in evidence claimed he had completed a Certificate III and a Certificate IV in Information Technology. He provided no evidence in support of this claim, such as academic transcripts relevant to those courses. In the absence of supporting evidence, the Tribunal gives the claim little weight, as it is reasonable to expect the applicant to provide documentary verification that he in fact completed those courses.  Nevertheless, the visa was not granted to the applicant for the purpose of completing certificate level studies in the Vocational Sector; the visa was granted to enable the applicant to study in the Higher Education Sector. This circumstance is a matter of concern to the Tribunal.

14. According to the evidence, the applicant’s enrolment in the Diploma course was cancelled in October 2016. Further, according to the applicant’s evidence, after his enrolment was cancelled he was waiting for the Degree in Information Technology to begin in November 2016; however, he did not enrol in that course. The applicant went overseas in December 2016 and returned to Australia in February 2017, and the Tribunal is mindful that the applicant did not complete the Diploma course, that his enrolment in the Diploma course was cancelled in October 2016, and that he did not enrol in the Bachelor of Information Technology. The applicant did not repeat the one subject he claimed he had failed and needed to complete in order to finish the Diploma. The applicant provided no evidence, such as an academic transcript which verified his claim that he completed all but one subject in the Diploma course; it is reasonable to expect the applicant would provide that evidence if it existed, given the applicant’s claim that he is and always was a genuine student. The applicant is in the best position to produce evidence of his own academic progress, if that evidence exists.

15. The applicant, in evidence, informed the Tribunal he never enrolled in or commenced study in the Bachelor of Information Technology. According to the evidence, the applicant has not completed any course of study at the higher education level, the level of study for which the applicant’s visa was granted.

16. On the basis of the foregoing evidence, the Tribunal is not satisfied the applicant achieved a reasonable degree of compliance with the study purpose and conditions of the Student visa. The foregoing considerations weigh in favour of cancellation of the visa.

    Degree of hardship that may be caused to the visa holder and any family members

17. The Tribunal accepts that the applicant may be upset by the cancellation of his visa. The applicant has not produced medical evidence or other corroborative evidence which demonstrates cancellation of the visa had a deleterious effect on his mental or physical well-being, however the Tribunal accepts he was upset by the decision. Relevantly, the applicant is in a relationship with his girlfriend and resides with her in Tasmania. The applicant claims that his parents will be upset if his visa is cancelled. There is no evidence that members of the applicant’s family, or the applicant himself, would suffer a degree of emotional, psychological or psychiatric hardship that would weigh in favour of not cancelling the visa.

18. The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa.

19. The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause to applicant or members of his family a degree of hardship sufficient to persuade the Tribunal to give this consideration weight against cancellation of the visa.

    The circumstances in which the ground for cancellation arose

20. The evidence establishes that the education provider cancelled the applicant’s enrolment on 26 October 2016. The applicant claimed in evidence to the Tribunal that he was not notified by Meadowbank, the education provider of the Diploma of Information Technology course, the relevant course at that time that his enrolment was cancelled.

21. On 2 August 2017, the Department issued to the applicant a Notice of Intention to Consider Cancellation of the applicant’s Higher Education Sector Student visa under s.116 of the Act (NOICC). Amongst other things, the NOICC invited the applicant to provide reasons why the grounds for cancellation of the visa do not exist; and, reasons why the applicant thinks the visa should not be cancelled. The Department file does not contain a response from the applicant to the NOICC. In addition, according to the delegate’s decision, a copy of which the applicant provided to the Tribunal, the applicant did not respond to the NOICC. The applicant claimed in evidence that he responded to the NOICC by email sent on 8 August 2017. While giving evidence, the applicant searched his mobile telephone and produced a document to the Tribunal; the document was stored in the applicant’s telephone. The applicant claimed the document is his response to the NOICC. The Tribunal, with the consent of the applicant, read the document into the transcript of the hearing. The Tribunal proceeds on the basis the applicant intended to send that document to the Department in response to the NOICC. Furthermore, for the purposes of this decision, the Tribunal will treat the document as the applicant’s response to the NOICC, and for convenience the Tribunal will refer to it as the applicant’s response document.

22. In the applicant’s response document he referred to a visa related mistake that he made; he acknowledged he had breached his visa conditions and that he regretted his mistake. He also referred to the cancellation of his visa and that he was unable to continue his studies. In evidence, the applicant elaborated upon the mistake he referred to in his response document. According to the evidence, his mistake was his failure to pay his course fees, and that failure resulted in the cancellation of his enrolment and visa.

23. According to the evidence the applicant gave to the Tribunal before he produced his response document, he returned to Australia after visiting Nepal. He then continued his studies; he was about to apply for a visa for his girlfriend to join him in Australia when that relationship collapsed because his girlfriend’s parents did not approve of the relationship. The applicant was distressed by the troubles affecting his relationship with his girlfriend, and that distress prevented him from studying. The applicant’s response document reveals something different: the applicant was experiencing financial problems and personal trauma before he visited Nepal, and before the collapse of his relationship with his girlfriend. In evidence the applicant elaborated upon the financial issues he referred to in his response document. The substance of his evidence was that he was not able to continue his studies to completion because he was unable to pay the course fees.

24. Furthermore, the applicant’s evidence indicates he left Australia late in 2016 after having discussions with relevant staff of his education provider who informed him that when he returned from overseas he should discuss his financial difficulties with the financial department of the education provider. The applicant did not do so. Furthermore, the applicant did not apply to Meadowbank, the education provider, to defer his course of study. The applicant did not discuss his visa options with the Department. This evidence contradicts evidence the applicant gave to the Tribunal before he produced the response document about his reasons for not returning to the Diploma course. According to the applicant’s earlier evidence, he did not resume the Diploma course because he was traumatised and confused by the collapse of his relationship with his girlfriend, and at the time he was unaware Meadowbank had cancelled his enrolment.

25. The applicant’s final position in evidence seemed to be that he was unable to pay his tuition fees and continue his studies because he lost his parents’ financial support as a consequence of the damage caused to his parents’ home by an earthquake in Nepal, and his mother’s poor health and inability to work. The applicant produced no evidence in support of his claims; he is in the best position to have done so, and it is reasonable to expect the applicant to have done so given the materiality of the claims to his case. In the absence of supporting evidence, the Tribunal is not satisfied the applicant’s claim that he was unable to pay the tuition fees because his parents were experiencing financial hardship, resulting from an earthquake, is reliable.  

26. The inconsistencies and contradictions in the applicant’s evidence relevant to his failure to return to study and to remain enrolled, reflect adversely on the applicant’s credibility and the reliability of his claim that his ability to pay his tuition fees resulted from the impact of an earthquake in Nepal on his parents’ capacity to pay his tuition fees. On the basis of the evidence before the Tribunal, including the applicant’s response document, the Tribunal is not satisfied the circumstances in which the ground for cancellation arose were exceptional and beyond the applicant’s control.

27. The evidence concerning the circumstances in which the ground for cancellation of the visa arose does not satisfy the Tribunal that this consideration weighs against cancellation of the visa, to the contrary those circumstances, considered as a whole, weigh in favour of cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

28. The evidence before the Tribunal does not indicate the applicant has been uncooperative with the Department or departmental staff in the past. The applicant claims he responded to the Department’s NOICC; the Department file and the delegate’s decision indicates to the contrary. In favour of the applicant, the Tribunal assumes the applicant intended to reply to the NOICC and that he did so. Consequently, the Tribunal gives weight against cancellation of the visa to the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

29. There is no evidence that any person’s visa would be cancelled under s.140 of the Act as a consequence of the applicant’s visa being cancelled under s.116 of the Act: that is the case because there is no evidence that another person holds a visa as a consequence of being a member of the applicant’s family unit and therefore, no person is at risk of their visa being cancelled under s.140 as a result of cancellation of the applicant’s visa. This consideration weighs in favour of cancellation of the visa.

    Whether there are mandatory legal consequences to a cancellation decision

30. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable to detention under s.189 of the Act if he does not voluntarily depart Australia. The applicant will also be affected by the operation of s.48 of the Act as a result of cancellation of the visa under s.116. By operation of s.48, the applicant will have limited options to apply for further visas while in Australia, and the applicant may be required to return to his home country. Pursuant to s.48, the applicant will not be able to apply for some visas onshore after cancellation, and unless the applicant can show that he meets Public Interest Criterion 4013, the applicant may be prevented for a specified period from receiving a grant of particular temporary visas. The Tribunal has had regard to this consideration and any adverse consequences that may flow to the applicant by operation of the Australian law referred to in this paragraph. Any such consequences would arise lawfully, and be intended lawful consequences resulting from the ordinary operation of Australian law; therefore, the Tribunal gives this consideration neutral weight in respect to cancellation of the visa.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

31. The applicant does not have children in Australia and he has not applied for protection or made claims of being in need of protection. Consequently, there is no evidence that cancellation of the applicant’s visa would place Australia in breach of its international obligations such as protecting the rights of children or Australia’s non-refoulement obligations. This consideration is not, according to the evidence, relevant to the decision and therefore the Tribunal gives it no weight.

    Consequences of cancellation of a permanent visa

32. The relevant visa held by the applicant is a temporary Student visa; consequently this consideration is irrelevant to the decision and the Tribunal gives it no weight.

    Any other relevant matters

33. The Tribunal has considered the evidence, and it is satisfied there is no relevant matter before the Tribunal that has not been considered in reaching this decision.

34. After considering the totality of the evidence, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Peter Haag
    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.