Poudel (Migration)

[2019] AATA 5044

Poudel (Migration) [2019] AATA 5044 (12 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Poudel

CASE NUMBER:  1806580

HOME AFFAIRS REFERENCE(S):           BCC2017/4355778

MEMBER:L. Symons

DATE:12 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 November 2019 at 2:56pm

CATCHWORDS
MIGRATION – cancellation – Higher Education Sector (Class TU) visa – Subclass 573 (Student) (Temporary) – non-enrolment in registered course – multiple course cancellations for unsatisfactory progress, non-payment of fees or non-commencement of studies – factors for and against cancellation – father’s financial position – mother’s health – multiple overseas travel – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, criterion 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 March 2018 made by a delegate of the Minister for Home Affairs (the delegate) 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 applicant was not enrolled in a registered course since 14 June 2017 in breach of condition 8202(2)(a). 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 appeared before the Tribunal on 6 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, Mr Walson Mathew, who did not attend the hearing.

5. 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 AND FINDINGS

6. 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?

7. 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).

8. In the present case, the applicant was granted a Student visa on 28 June 2014. This visa was subject to a number of conditions including condition 8202. On 24 January 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he had not complied with condition 8202(2)(a) as he had not been enrolled in a registered course since 14 June 2017. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. He was given a timeframe of five working days after he was taken to have received the letter to provide a written response. He did not provide a written response to the Department of Home Affairs (the Department).

9. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 6 March 2018. It indicates that the delegate spoke to his migration agent, Mr Walson Mathew, on 5 March 2018 and was assured that he was going to submit a response to the NOITCC by 5.00pm on 5 March 2018. No written response was filed by his migration agent.

10. The delegate cancelled the applicant’s Student visa on 6 March 2018. He applied to the Tribunal for a review of that decision on 12 March 2018.

11. The applicant gave evidence to the Tribunal that he had not been enrolled in a registered course between 14 June 2017 and 15 July 2018 and agreed that he had breached condition 8202 of his Student visa.

12. This is consistent with the records of the Department of Education which indicate that the applicant was enrolled in a Bachelor of Information Technology degree from 17 November 2014 to 30 November 2017. His Confirmation of Enrolment (COE) was cancelled on 20 September 2016 due to unsatisfactory course progress. He then enrolled in a Bachelor of Business Information Systems degree from 5 December 2016 to 1 December 2019. That COE was cancelled on 14 June 2017 for non-payment of fees.  He then enrolled in a Diploma of Information Technology from 16 July 2018 to 13 October 2019. That COE was cancelled on 8 May 2019 for non-payment of fees. He was also enrolled in an Advanced Diploma of Network Security from 11 November 2019 to 8 January 2020. That COE was also cancelled on 8 May 2019 for non-commencement of studies. The only course of studies he has completed in Australia is an English language course which he undertook between 21 July 2014 and 7 November 2014.

13. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he had breached condition 8202 of his Student visa and that his Student visa should be cancelled. He responded that he had no comment. He then stated that the only reason he did not complete the Diploma of Information Technology is that he got frustrated.

14. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course between 14 June 2017 and 15 July 2018 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with a condition of his Student 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’.

    Circumstances in which the ground for cancellation arose

16. The Tribunal discussed with the applicant the circumstances in which the ground for cancellation arose. He gave evidence that his course was cancelled in the third semester. He stated that he then enrolled at AIH. He stated that after one semester at AIH he travelled to Nepal in February 2017 to refresh his mind. He stated that after staying in Nepal for 15 days he returned to his studies in Australia. He stated that at that time he had a financial issue. He stated that the earthquake in Nepal affected the business he relied on to come to Australia. He stated that his father was an Electrical Technician and owned his own store. He stated that his father was paying for most of his tuition fees. He stated that he had a financial report which would show that his father’s finances in that year were not as good as in the previous year. He stated that he had difficulty getting financial help from home and that was why he could not continue his course at AIH.

17. The Tribunal has considered the Independent Auditor’s Report provided by the applicant. He stated that this Report was in relation to a business owned by his father, Ashirbad Marmat Sambhar. The Independent Auditor’s Report is in relation to the affairs of the company as it ‘31^st Ashadh 2074’ (Nepali calendar (Bikram Sambat)) which is equivalent to 15 July 2017 in the Gregorian calendar.[1] The Income Statement indicates a balance of 2,514,162.03 in the current year compared to 1,877,866.54 in the previous year. The Cashflow Statement indicates a net balance of 650,225.51 in the current year compared to 350,560.25 in the previous year. 

    [1] Nepali Date Converter. (>

    The Tribunal pointed out to the applicant that the Independent Auditor’s Report provided by him did not support his evidence as it showed that the net cash flow in his father’s business in 2017 was substantially better than in the previous year. He responded that he did not have the financial statements he provided at the time he applied for his Student visa (in 2014). The Tribunal pointed out to him that those financial statements were not relevant to his claim that the reason he could not pay his tuition fees in 2017 were because his father’s business did not do very well in 2017 compared to the previous year. He responded that when he asked for financial support they were having a hard time and he did not feel he could ask for help.

18. The Tribunal informed the applicant that it had difficulty accepting his evidence in view of the financial documents he had provided which showed that his father’s business was doing better in 2017 than it did in 2016. He responded that he did not know how to read financial statements. This does not address the issue raised with him or alleviate the Tribunal’s concerns.

19. The applicant also gave evidence to the Tribunal that at that time his mother was not well and the doctor found symptoms of breast cancer. He stated that this distressed him and he did not ask his parents for financial help. He stated that his mother told him that she had to have an operation and if the lump was not removed from her body it would cause cancer in the future. He stated that she had surgery and was on medication for three months. When asked what the medication was for, he responded “regular recovery”.  When asked how this impacted on his studies, he stated that he was told that his parents could not support him financially because his mother was not well. He stated that he was disturbed emotionally. He stated that at the same time his COE was cancelled. He stated that since he had to “encounter all these issues” he did not take any steps in relation to the cancellation of his COE. He stated that he was unable to get credit for the subjects he did and had difficulties enrolling with another education provider. He stated that he then received the NOITCC.

20. The Tribunal has considered the documents from the Grande International Hospital provided by the applicant. The first is a pathology report dated 23 June 2017 which indicates that an aspirate was conducted on a lump in the left breast and it indicated that it was negative for malignant cells. The second is a pathology report dated 3 July 2017 which indicates a clinical diagnosis of ‘fibroadenoma of left breast’. A Factsheet from the Royal Women’s Hospital in Melbourne indicates that fibroadenomas are quite common, they are not cancerous and do not put anyone at increased risk of breast cancer. It indicates that a fibroadenoma may be removed by surgery, the operation is performed with a general anaesthetic and usually women go home on the same day. [2]  

    [2] Fibroadenomas, The Royal Women’s Hospital, Victoria, Australia. (>

    The applicant stated that AIH, his education provider, would not allow him to sit the exams because he had not paid his tuition fees. He stated that if he had requested a chance to attend the exams they would have reconsidered their decision but he did not do that because of his “stress level”. He stated that AIH then cancelled his COE and he panicked and did not know what to do. He stated that he sent an email to AIH requesting a Transcript for the courses he had enrolled in because he wanted to continue his Bachelor degree elsewhere but they declined to provide it.

21. The Tribunal has considered the email correspondence between the applicant and AIH provided by the applicant. The first email dated 23 November 2017 indicates that AIH had received an email from him regarding obtaining his official Transcript for his studies at AIH. It indicates that as his COE was cancelled due to non-payment of fees they are unable to issue him any academic documents while he has outstanding payments to the institution. It referred him to the Fees and Charges Policy and Procedure for details. It referred to his outstanding fees of $4,500.00.

22. The second email dated 24 November 2017 is the applicant’s response in which he stated that the Policy was not helpful, the outstanding fees is the reason he was not allowed to attend the exam, re-enrol or transfer. He stated that he had paid for and studied the semester from November 2016 to February 2017 and requested the Transcript for that period. The third email dated 24 November 2017 is from AIH to him and indicates that the policy remains the same and AIH was unable to issue him with a Transcript whilst he had outstanding fees. The Tribunal notes that this correspondence with AIH is dated over five months after his COE was cancelled on 14 June 2017 for non-payment of fees. It is also approximately three months and three weeks after the pathology report dated 3 July 2017 following his mother’s surgery.   

23. The applicant gave evidence that because of the delay he received a NOITCC from the Department. He stated that he consulted his migration agent who advised him to apply for a review at the AAT. He stated that no education provider was willing to enrol him in a degree course so he enrolled in a Diploma course. He stated that because he was unable to get a Transcript from AIH he was unable to get credit for the courses he had already undertaken in Australia. He stated that he felt very frustrated and did not want to have to repeat courses in the Diploma. He stated that he ran out of motivation and did not continue his studies.

24. Having considered the circumstances in which the ground for cancellation arose, the Tribunal does not accept that the earthquake in Nepal in 2015 impacted on the applicant’s father’s business in 2017 to the extent that his father was unable to assist him to pay his tuition fees. The Independent Auditor’s Report provided by him indicates that his father’s business was in a significantly better financial position as at 15 July 2017 in terms of income and net cash flow than it had been in the previous year and yet he was able to pay his tuition fees in 2016. The Tribunal does not accept that his father’s business was in a bad financial position in 2017 and this was why he could not pay his tuition fees and his COE was cancelled.

25. The Tribunal accepts that the applicant may have been upset that his mother had found a lump in her left breast and had to undergo surgery approximately a month later. The documentary evidence he provided indicates that this issue was resolved very quickly. The pathology reports indicate that a sample was collected on 21 June 2017 by way of an aspirate, the results reported on 23 June 2017 indicate that it was negative for malignant cells and compatible with fibroadenoma, a biopsy was conducted on 29 June 2017 following surgery and the results reported on 3 July 2017 confirmed the diagnosis of fibroadenoma of the left breast.

26. The Tribunal does not accept that the reason why the applicant did not pay his tuition fees was because he could not ask his father for money because of his mother’s illness. The Tribunal would expect that his not continuing his studies in Australia and having his Student visa cancelled would have been a greater source of concern and stress for his parents than if he had asked his father to pay his tuition fees. The Tribunal would expect that if he was motivated by concern for his parents he would have ensured that he enrolled in the next semester and continued his studies so that he could complete his degree in Australia.

27. It was the applicant’s responsibility, when he enrolled with AIH, to ensure that he was aware of the Fees and Charges Policy and Procedure and comply with it. His subsequent inability to obtain an official Transcript from AIH was due to his failure to comply with the Fees and Charges Policy and Procedure. The Tribunal does not accept that AIH is to blame for his failure to comply with condition 8202(2)(a) of his Student visa.   

28. The Tribunal is of the view that it is incumbent on the applicant to ensure that he complied with the conditions of his Student visa. The Tribunal considers that if there was a change in his circumstances such that he was unable to pay his fees or enrol, he should have approached his education provider to make arrangements to pay his fees off by instalments or defer his studies. He should also have approached the Department to explain the change in his circumstances and discuss alternatives. He did not take either of these steps to resolve this issue.

29. The Tribunal is of the view that this consideration does not weigh in the applicant’s favour.     

    Purpose of the applicant’s travel and stay in Australia and whether he has a compelling need      to travel to or remain in Australia

30. The applicant was granted a Student visa on 28 June 2014 for the purpose of undertaking tertiary studies in Australia. He initially enrolled in a Bachelor of Information Technology degree from 17 November 2014 to 30 November 2017. His COE was cancelled on 20 September 2016 due to unsatisfactory course progress. He then enrolled in a Bachelor of Business Information Systems degree from 5 December 2016 to 1 December 2019. That COE was cancelled on 14 June 2017 for non-payment of fees.  After the Department sent him the NOITCC on 24 January 2018, he enrolled in a Diploma of Information Technology from 16 July 2018 to 13 October 2019. That COE was cancelled on 8 May 2019 for non-payment of fees. He was also enrolled in an Advanced Diploma of Network Security from 11 November 2019 to 8 January 2020. That COE was also cancelled on 8 May 2019 for non-commencement of studies. The only course of studies he has completed in Australia is an English language course which he undertook between 21 July 2014 and 7 November 2014.

31. The applicant has not completed any tertiary studies in Australia. The Tribunal has not accepted his explanation for why he did not pay his tuition fees which led to the cancellation of his COE on 14 June 2017. His initial explanation for why he did not undertake the studies in the Diploma was that it was due to his “stress level”. He subsequently stated that he did not continue his studies as he was frustrated because he could not get credit for subjects he had completed in Australia as he was unable to obtain an official Transcript from AIH, did not want to repeat subjects he had already undertaken and ran out of motivation.

32. The Tribunal accepts that the applicant came to Australia for the purpose of studying. The Tribunal considers that his purpose has changed since then. The Tribunal is not convinced that he is likely to return to studying in a meaningful way if his Student visa is not cancelled. The Tribunal does not consider that he has demonstrated a compelling need to remain in Australia.

33. The Tribunal is of the view that this consideration does not weigh in the applicant’s favour.    

    The extent of compliance with visa conditions

34. The applicant was not enrolled in a registered course between 14 June 2017 and 15 July 2018 and since 8 May 2019. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa. The Tribunal does not consider that his evidence provides a satisfactory explanation for his non-enrolment over such an extended period of time. There is no evidence before the Tribunal to indicate that he has not complied with the other conditions of his Student visa.

35. The Tribunal is of the view that this consideration does not weigh in the applicant’s favour.    

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

1. The Tribunal asked the applicant what hardship would be caused to him if his Student visa is cancelled. He responded that he has spent five years in Australia trying to get a degree and not getting it will be a scar on his whole life. The Tribunal accepts that returning to Nepal without the degree he hoped to achieve would result in disappointment and embarrassment for him. The Tribunal does not consider that he has demonstrated any significant hardship that would be caused by the cancellation of his Student visa or that it would be a “scar on his whole life”.

2. The Tribunal is of the view that this consideration marginally weighs in the applicant’s favour.    

   Past and present behaviour of the applicant towards the Department

3. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department.

4. The Tribunal is of the view that this consideration has some weight in the applicant’s favour.   

   Whether there would be consequential cancellations under s.140 of the Act

5. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act.

6. The Tribunal is of the view that this consideration does not weigh in the applicant’s favour.

   Legal consequences of a decision to cancel the visa

7. The Tribunal asked the applicant what he would do if his Student visa is cancelled and he responded that he did not know.

8. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

9. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4013 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. These are intended consequences in the legislation when a visa is cancelled under these grounds.

10. The Tribunal is of the view that this consideration does not weigh in the applicant’s favour.   

    Australia’s international obligations

11. The applicant’s evidence is that he does not have any children or a partner in Australia. When asked whether there was any reason why he could not return to Nepal, he responded that he did not know how to process it and what to do.

12. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. As the Student visa is not a permanent visa, consideration of his family, business or other ties to Australia is not relevant.  

13. The Tribunal is of the view that this consideration does not weigh in the applicant’s favour.   

    Any other relevant matter

14. The records of the Department indicate that the applicant departed Australia on 15 September 2016 on a flight to Kuala Lumpur and returned on 20 September 2016. He departed Australia again on 17 November 2016 on a flight to Kuala Lumpur and returned on 22 November 2016. He departed Australia for the third time on 11 February 2017 on a flight to Guangzhou in China and returned on 28 February 2017. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he was more interested in travelling and working in Australia than in paying his tuition fees and studying in Australia.

15. The applicant responded that he travelled to Indonesia via Kuala Lumpur with friends on two occasions for holidays and to see what life was like there. He stated that on the third occasion he travelled to Kathmandu via Guangzhou.

16. The Tribunal considers that the applicant is entitled to travel, have overseas holidays with friends and explore the world. However, his two trips to Indonesia in 2016 tend to indicate that this was a higher priority for him than saving his money and paying for his tuition fees in 2017. When this was raised as an issue with him, he responded that if he was not interested in his studies he would not be before the Tribunal. The Tribunal is not persuaded by his explanation.

17. The Tribunal is of the view that this consideration does not weigh in the applicant’s favour.    

18. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    L. Symons
    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.