Pradhan (Migration)

[2019] AATA 2598

Pradhan (Migration) [2019] AATA 2598 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bishal Pradhan

CASE NUMBER:  1801476

HOME AFFAIRS REFERENCE(S):           BCC2017/2749093

MEMBER:Stephen Conwell

DATE:17 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 17 May 2019 at 2:38pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – 3-years exclusion period – previously cancelled visa – no compelling or compassionate circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 December 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet Public Interest Criteria 4013 and there were no compelling or compassionate circumstances.

4. The applicant appeared before the Tribunal on 2 May 2019 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

6. The applicant was granted an off-shore TU 573 visa on 17 January 2014 for enrolment in Foundation course leading to a Diploma of Business and Bachelor of Business (Accounting) at Swinburne University.  On 23 August 2017, the applicant’s visa was cancelled under s.116(1)(b) for a breach of visa condition 8202 (maintain enrolment) as the applicant had not been enrolled since 4 November 2016.

7. As a consequence of his visa having been cancelled, the applicant’s current visa application is affected by risk factors in Public Interest Criteria (PIC 4013).  Importantly, the ‘exclusion period’ in PIC 4013 prevents him from being granted a visa within three years of the date of cancellation of his previous visa unless the Minister (or in this case, the Tribunal) is satisfied that circumstances exist which justify the grant of the visa and waiver of PIC 4013. In particular, the Tribunal must consider whether there are compelling circumstances affecting the interests of Australia or compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.

   Evidence of the visa applicant

8. The applicant was invited to make submissions regarding compelling or compassionate circumstances in his case. The applicant confirmed that his previous Student visa was cancelled but in his evidence he sought to explain the circumstances which led to the visa cancellation and how these events should not detract from his being a genuine student. 

9. The applicant provided a written submission dated 11 October 2017 to the Department.  The statement discussed the applicant’s difficulties in coping with living and studying in Australia. Importantly the statement concedes that the applicant cannot point to compelling or compassionate circumstances in his situation such as would satisfy PIC 4013. At hearing the applicant reiterated the challenges he experienced during his time in Australia and again conceded that he cannot demonstrate compelling or compassionate circumstances in order to activate the waiver in PIC 4013.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

12. The issue in the present case is whether there are compelling or compassionate reasons in the applicant’s case for waiving the requirements of PIC 4013.

13. Part 500.217 of the Migration Regulations sets out the criteria relevant to the applicant. It includes the following:

    500.217

    (1) The applicant satisfies Public Interest Criterion 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

    4013

    (1) If the applicant is affected by a risk factor mentioned in subclause (1A) (2) (2A) (3) (4) (5)

    (a) the application is made more than 3 years after cancellation of the visa, or temporary entry permit or determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

    (b) the Minister is satisfied that in the particular case:

    (i) compelling circumstances affecting the interests of Australia; or

    (ii) compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen;

    justify the granting of the visa within 3 years after the cancellation or determination.

14. Subclause 4013(2) states:

    (2) A person is affected by a risk factor if a visa previously held by the person was cancelled under Section 116 or 128 of the Act;

    (a) because the person was found by Immigration to have worked without authority; or

    (b) if the visa was of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that Part in relation to that subclass; or

    (c) if the visa was a subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that part in relation to that subclass of substantive visa; or

    (ca) because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

    (d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m) or (o) applied to the person.

15. The applicant had previously held a student visa which was cancelled. He then applied for a further visa on 2 August 2017 within the three year exclusionary period contemplated by PIC 4013. That visa application was refused as the applicant did not satisfy PIC 4013.

16. The applicant was not able to provide any compelling or compassionate circumstances that could be considered as reasons for waiving the public interest criteria in this case. On the contrary, he conceded that no such circumstances exist.

17. On the evidence before it the Tribunal is not persuaded that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that would justify the granting of the visa and waiver of PIC 4013.

18. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.217.

19. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Stephen Conwell
    Member