Poudel (Migration)

[2020] AATA 146

Poudel (Migration) [2020] AATA 146 (29 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashutosh Poudel

CASE NUMBER:  1806507

HOME AFFAIRS REFERENCE(S):          BCC2017/3827004

MEMBER:L.Symons

DATE:29 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 29 January 2020 at 3:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – experienced life stressors – mother’s health issues – reason for non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 February 2018 made by a delegate of the Minister for Home Affairs 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 7 April 2017 in breach of condition 8202(2)(a). On 11 March 2018, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 6 November 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 AND FINDINGS

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 was granted a subclass 573 Student visa on 15 February 2016. This visa was subject to a number of conditions including condition 8202. On 19 January 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. 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.

8. On 23 January 2018, the applicant responded to the NOITCC. The delegate cancelled his Student visa on 27 February 2018 on the basis that he breached condition 8202(2) of his Student visa because he was not enrolled in a registered course since 7 April 2017.

9. The applicant has filed with the Tribunal a copy of the Decision Record dated 27 February 2018 from the Department of Immigration (the Department).  He has also provided the Tribunal with an unsigned and undated statement from him and some medical documents in relation to his mother. At the end of the hearing, he was granted further time to provide additional evidence. The Tribunal subsequently received further medical documents in relation to his mother.

10. In his response to the NOITCC, the applicant conceded that he was unable to maintain his visa conditions. During the hearing, he agreed that he has not been enrolled in a registered course since 7 April 2017 and that he has breached condition 8202 of his Student visa.

11. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course since 7 April 2017 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

12. 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’.

    Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling         need to travel to or remain in Australia?

13. The applicant’s evidence is that he came to Australia for the purpose of obtaining a Master of Applied Finance degree. The Tribunal accepts that the purpose of his travel to Australia was to study.

14. The records of the Department of Education indicate that the applicant was enrolled in a Master of Applied Finance degree from 8 February 2016 to 31 December 2017. On 13 September 2016, his studies were deferred due to compassionate or compelling circumstances. On 7 April 2017, his enrolment was cancelled as he notified cessation of studies. He has not enrolled in any registered courses since then.

15. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he had not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled. He declined to respond.

16. In his response to the NOITCC dated 23 January 2018, the applicant stated “now as I have settled down form the darkest phase in my life, I want to get back to where I was one year before. I really want to complete my studies and go back to my country with an international degree that I always dream of.” (errors in original)

17. The applicant gave evidence to the Tribunal that he would like to remain in Australia so that he can complete his Master’s degree. He stated that he has six units left to do. When asked what he has been doing for the last 2 years, he responded that he saw an agent and obtained a Bridging visa. He stated that there was no date by which the Tribunal’s decision would be made. He stated that the semesters are 4 months long. He stated that he may not have been able to finish his studies if he had re-commenced them. He stated that he has been living in uncertainty.

18. The Tribunal finds that the applicant has not fulfilled the purpose for which he travelled to Australia. As he has not studied since April 2017, the Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia. The Tribunal gives this consideration no weight in his favour.   

    The extent of compliance with visa conditions

19. The applicant was not enrolled in a registered course since 7 April 2017. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa. The Tribunal is not convinced that he has provided a satisfactory explanation for why he was not enrolled in a registered course during this period. (See below).

20. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.   

    Degree of hardship that may be caused       

21. The Tribunal asked the applicant what hardship may be caused to him if his Student visa is cancelled. He responded that he will probably not be able to look at himself in the mirror. He stated that when he came to Australia he told his mother that he was going to get a degree. He stated that he has made an excuse out of her. He stated that if he returns to Nepal without a degree he would not be able to please his mother. He stated that he speaks to her every day and she tells him to finish his studies and return to Nepal.

22. During the hearing, the applicant gave evidence that his father sent him $12,000.00 or $13,000.00 to pay his university tuition fees. He stated that that was “big money” for him. He stated that he spent that money going to the bar and getting drunk. He stated that at that time drinking alcohol was more important to him than studying. He stated that because he spent all the money he could not enrol in his course. He stated that there was no one to tell him that what he was doing was wrong. He stated that he could not return to Nepal as his father would have asked him what happened to the money. He stated that the only solution was to drink.

23. The Tribunal is of the view that the loss of this money with no return would cause the applicant’s parents some hardship. The Tribunal gives this consideration some weight in the applicant’s favour.   

    Circumstances in which the ground for cancellation arose

24. The circumstances in which the ground for cancellation arose are that the applicant failed to maintain enrolment in a registered course since 7 April 2017 resulting in the breach of condition 8202(2)(a) of his Student visa and the cancellation of this visa.

25. In his response to the NOITCC, the applicant stated that “during my second semester, during my final term papers, my world got upside down when I heard about my mother’s condition back in Nepal. She has been suffering from various illness for most of her life now. As a son and a student, it was not a difficult choice for me to make a decision. I chose my mother over my studies.” He went on to state that he then applied for and was granted leave to have a break from university so that he could return to Nepal. He stated that he stayed with his mother for 2 months. He stated that she was not fully recovered but showed signs of improvement so he returned to Australia. (errors in original)  

26. The applicant stated that 2 weeks after he returned to Australia he received a message that his mother was in hospital. He stated that his mother wanted him to stay in Australia and complete his studies. He stated that he became depressed and got into things to divert his mind. He stated that he had no one in Australia to guide him. He stated that his mother is getting better and he is getting his life back on track.

27. During the hearing, the applicant stated that his father worked overseas and he felt guilt ridden that he was not in Nepal when his mother got sick. He stated that he spoke to his university and went to Nepal to see his mother. He stated that she recovered and he returned to Australia. He stated that his mother then got worse and he felt guilty that he could not be there for her. He stated that he got attracted to alcohol and was drinking all the time. When asked about her illness, he stated that she had a cyst near her ovary.  He stated that it was “basically a cancer” but it could not be operated on. He stated that she had to have check-ups every three to four months to make sure it was not spreading. When asked what treatment she was receiving, he stated that he did not know.

28. The applicant provided the Tribunal with some medical documents prior to the hearing. One of the documents in from the Grande International Hospital and is dated 16 January 2018. It indicates that his mother had pain in her left knee and was advised to elevate her leg, put a cold compress on it and wear sports shoes with an arch. The other document indicates that his mother was diagnosed with a hormonal abnormality. The Tribunal raised this as an issue with him and noted that these documents did not support his evidence. The Tribunal also noted that these conditions were not of such gravity that they would “turn his world upside down”, prevent him from studying and cause him to rush to Nepal to be with his mother for 2 months. The Tribunal also noted that the document from the hospital is dated 16 January 2018 which is 9 months after he ceased his enrolment. The Tribunal noted that it may find that his mother’s illness had nothing to do with him not enrolling in a registered course.

29. The applicant responded that he asked his sister to send him the certificates and those were the medical reports she sent him. He stated that he is not a doctor and his mother had regular appointments with her doctor. The Tribunal noted that it did not appear that she had any life threatening illness. He requested and was granted further time after the hearing to provide additional evidence.

30. Following the hearing, the Tribunal received further medical documents. The first is dated 1 September 2015 from the AIIMS Hospital Outpatient Department and refers to menorrhagia and a recent diagnosis of hypertension. The second is dated 7 September 2015 from Vatika Medicare and indicates a diagnosis of hypothyroidism. The third is dated 9 November 2015 and refers to a medical examination and advice. The fourth is an undated Ultrasound result from the Nepal Police Hospital which refers to a fatty liver, right ovarian simple cyst and a bulky uterus.

31. The fifth is a letter from the Nepal Medical College which indicates that the applicant’s mother was admitted to hospital with a diagnosis of uterine fibroid with hypertension and osteoarthritis. It indicates that she was admitted to hospital on 20 September 2016 and discharged on 28 September 2016. It indicates that she underwent a myomectomy on 21 September 2016 and was advised to have regular follow ups. The Tribunal accepts that the applicant’s mother had some gynaecological problems in 2015 and 2016 and that she had some uterine fibroids removed on 21 September 2016. The Tribunal also accepts that he had pain in her left knee in January 2018.

32. The records of the Department indicate that the applicant departed Australia on 8 October 2016 on an Air Asia flight to Kuala Lumpur in Malaysia. He returned to Australia on 11 November 2016 on a China Southern flight from Guangzhou in China. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may not accept that he returned to Nepal and that he spent 2 months with his mother as claimed. The Tribunal noted that it may not accept that he was unable to continue his enrolment because of his mother’s illness.

33. The applicant responded that he was in transit in Kuala Lumpur and Guangzhou en route to and from Nepal. He declined to respond in relation to the other issues. The Tribunal accepts that he travelled to Nepal on that trip.

34. The applicant deferred his studies on 13 September 2016 due to compassionate or compelling circumstances. This was one week prior to his mother being admitted to hospital.  The timing of his visit to Nepal was after his mother was discharged from hospital following her myomectomy on 21 September 2016. There is no medical evidence that his mother was admitted to hospital approximately 2 weeks after he returned to Australia on 11 November 2016 as he claimed in his response to the NOITCC. There is also no medical evidence that his mother was ill in 2017. He did not provide any independent evidence that he suffered from depression as claimed to the Department.

35. The Tribunal does not accept that the reason why the applicant was not enrolled in a registered course since 7 April 2017 had anything to do with his mother’s illness. The Tribunal accepts his evidence that he spent the money his father gave him to pay his tuition fees on alcohol and that is why he has not been enrolled in a registered course since 7 April 2017.

36. The Tribunal does not give this consideration any weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

37. The Tribunal is of the view that the applicant sought to mislead the Department in his response to the NOITCC when he blamed his mother’s illness on his failure to enrol in a registered course since 7 April 2017.

38. The Tribunal does not give this consideration any weight in the applicant’s favour.

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

39. 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. The Tribunal does not give this consideration any weight in his favour.

    Legal consequences of a decision to cancel the visa

40. 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.

41. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means that he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. These are the intended legal consequences of a decision to cancel a visa. The Tribunal does not give this consideration any weight in his favour.   

    Australia’s international obligations

42. 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. The Tribunal does not give this consideration any weight in his favour.

    Any other relevant matter

43. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

44. 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

45. 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.