Pudasaini (Migration)

[2020] AATA 1810

Pudasaini (Migration) [2020] AATA 1810 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nitesh Pudasaini

CASE NUMBER:  1911810

HOME AFFAIRS REFERENCE(S):          BCC2016/2874689

MEMBER:David McCulloch

DATE:10 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 10 March 2020 at 3:32pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Federal Circuit Court remittal – genuine temporary entrant as student – enrolment in a registered Higher Education course ceased – applicant changed courses frequently – gaps in enrolment – failure to re-enrol for subjects – limited academic progress – Nepal earthquake 2015 – claimed financial hardship – decision under review affirmed           

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES

MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 November 2016 made 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 of the Migration Act 1958 (the Act).

2. The applicant is a national of Nepal, born on 28 March 1994. The visa that has been cancelled was granted on 12 August 2013.

3. On 3 October 2016, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant provided his response to the NOICC on 11 October 2016. On 7 November 2016, the delegate decided to cancel the student visa held by the applicant under s.116(1)(fa) on the basis that the delegate had formed the view that the applicant was not a genuine student.

4. On 9 November 2016, the applicant applied to the Tribunal for review of the decision. On 8 October 2018, the Tribunal affirmed the decision under review. The applicant applied to the Federal Circuit Court for review of the Tribunal’s decision. On 8 May 2019, the matter was remitted by consent on the basis that the Tribunal failed to consider a psychological report provided by the applicant to the Department on 10 October 2016.

5. The issues that arise on review are:

   1. Does the ground for cancellation exist?
   2. If so, should the visa be cancelled?

6. The applicant appeared before the Tribunal on 5 March 2020 to give evidence and present arguments. The applicant communicated with the Tribunal in English.

7. 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

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(fa). If satisfied that the ground for cancellation is made out, the decision‑maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

9. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions … yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

11. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are:

    …

    (1C)    For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)    For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    a.     because of the conduct of the holder; or

    b.     because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    c.     because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    d.     on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

    Does the ground for cancellation exist?

12. The applicant provided a copy of the delegate’s decision record to the Tribunal which sets out the following information:

    # Nitesh PUDASAINI applied for a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa which was granted 12 August 2013. When you [the applicant] applied for the visa your study plan was:

    Certificate IV in Tertiary Preparation Program (TPP) (Confirmation of Enrolment (CoE) 5D0A2419) at Colleges of Business and Technology (WA) Pty Ltd (Curtin College) —06 November 2013 to 27 June 2014.

    Diploma of Commerce (CoE 5CE83A65) at Colleges of Business and Technology (WA) Pty Ltd (Curtin College) — 14 July 2014 to 26 June 2015.

    Bachelor of Commerce (CoE 5CE84693) at Curtin University of Technology—05 August 2015 to 30 June 2017.

    Records in The Provider Registration and International Student Management System (PRISMS) indicate:

    # On 09 April 2014 Nitesh PUDASAINI's enrolment in the Certificate IV in Tertiary Preparation Program (TPP) was cancelled citing 'student notifies cessation of studies'. Nitesh PUDASAINI's last day of study in this course recorded on PRISMS was 14 February 2014.

    # Subsequently, on 09 April 2014 Nitesh PUDASAINI's enrolment in the Diploma of Commerce and Bachelor of Commerce was cancelled citing 'non-commencement of studies'.

    Information provided by Colleges of Business and Technology (WA) Pty Ltd (Curtin College) indicate that Nitesh PUDASAINI had an overall attendance of 84% with seventeen (17) absences. Nitesh PUDASAINI was assessed as not competent in three (3) of the four (4) subjects which he undertook. Nitesh PUDASAINI was provided with one (1) email and three (3) text message reminders to re-enrol.

    Records in PRISMS indicate:

    #On 05 March 2014 Nitesh PUDASAINI enrolled in a Diploma of Accounting (CoE 64138696) at Pacific College Pty Ltd—study dates: 05 May 2014 to 05 November 2015.

    # On 20 October 2014 Nitesh PUDASAINI's enrolment in the Diploma of Accounting (CoE 64138696) was cancelled citing 'student notifies cessation of studies'. Nitesh PUDASAINI's last day of study in this course recorded on PRISMS was 14 September 2014.

    Information provided by Pacific College Pty Ltd indicate that Nitesh PUDASAINI was issued with nine (9) attendance warning letters and two (2) course progress warning letters. Nitesh PUDASAINI was deemed not yet competent in the six (6) units you undertook. On 07 October 2014 Nitesh PUDASAINI requested a deferment for a semester due to a motorbike crash; however Pacific College Pty Ltd could not consider the request without a medical certificate. On 15 October 2014 Nitesh PUDASAINI was issued a reminder to re-enrol for term IV 2014.

    Records in PRISMS indicate:

    # On 27 March 2015 Nitesh PUDASAINI enrolled in a Diploma of Accounting (CoE 70E35E32) at ALIF Australia Pty Ltd (Australis Institute of Technology and Education) — study dates: 21 March 2016 to 25 December 2016.

    # On 30 March 2015 Nitesh PUDASAINI's enrolment in the Diploma of Accounting (CoE 70E35E32) was cancelled citing 'change to CoE/student details'. It is noted that this was at his request to start the course in April 2015.

    # Subsequently, on 30 March 2015 Nitesh PUDASAINI enrolled in another Diploma of Accounting (CoE 70F05D85) at ALIF Australia Pty Ltd (Australis Institute of Technology and Education) — study dates: 20 April 2015 to 17 April 2016.

    # On 29 April 2015 Nitesh PUDASAINI's enrolment in the Diploma of Accounting (CoE 70F05D85) was cancelled citing 'Change to a course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original'. It is noted that Nitesh PUDASAINI wished to change to a business course.

    # On 29 April 2015 Nitesh PUDASAINI enrolled in a Diploma of Business (CoE 71D59028) at ALIF Australia Pty Ltd (Australis Institute of Technology and Education) — study dates: 27 April 2015 to 25 October 2015.

    Information provided by ALIF Australia Pty Ltd (Australis Institute of Technology and Education) indicate that Nitesh PUDASAINI was deemed not yet competent in the units for the Diploma of Business (CoE 71D59028), therefore he did not complete this course of study. Nitesh PUDASAINI was issued with an academic progress warning email.

    Records in PRISMS indicate:

    # On 02 September 2016 Nitesh PUDASAINI enrolled in General English (Beginner to Advanced) (1 to 72 weeks) (CoE 84145218) at Australian Ideal College Pty Ltd. Nitesh PUDASAINI completed this course on 23 September 2016.

    # On 30 August 2016 Nitesh PUDASAINI enrolled in an Advanced Diploma of Business (COE 83EF4317) at Sydney Metro College Pty Ltd — study dates: 26 September 2016 to 05 March 2017.

    # Nitesh PUDASAINI is currently studying the Advanced Diploma of Business (CoE 83EF4317).

    Therefore, departmental records suggest:

    # Nitesh PUDASAINI did not hold a valid CoE from 20 October 2014 to 27 March 2015 or from 25 October 2015 to 30 August 2016. Furthermore, he did not undertake any study from 14 September 2014 to 27 April 2015 or from 25 October 2015 to 02 September 2016. This indicates that he has not studied for a cumulative period of approximately seventeen (17) months.

    # Nitesh PUDASAINI is holding a TU573 Higher Education Sector visa ('student visa'), however since 09 April 2014 he has not been enrolled in a bachelor's degree or master's degree course and he has not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

    # Nitesh PUDASAINI has continually changed his enrolment in a registered course of study and either cancelled or failed to re-enrol in his course after the course commencement date.

13. In the hearing, the applicant indicated that all the factual information in the delegate’s decision as to his study history and progress in Australia was correct.

14. The Tribunal repeated to the applicant in the hearing the last three extracted paragraphs. The Tribunal also noted that the applicant had variously ceased studying the:

    ·Certificate IV in Tertiary Preparation three months into the seven-month course;

    ·Diploma of Accounting four months into the 16-month course and was not deemed competent in six of the units that he undertook.

15. The Tribunal noted to the applicant in the hearing that albeit that the second Diploma of Accounting was finished, the applicant was not deemed competent in the units for the course and was issued with an academic progress warning email.

16. The Tribunal indicated to the applicant that this performance was not consistent with him being a genuine student.  This includes consideration of the information in the last three paragraphs repeated to the applicant, extracted above, relating to the period in which he has not held a valid Confirmation of Enrolment, the periods in which he did not undertake any study, his failure to be enrolled in a higher education sector course as required by condition 8516 of his visa from 9 April 2014, and constantly changing his enrolments which were either cancelled or there was a failure to re-enrol after the course commencement date.

17. In response, the applicant referred to difficulties of money from the earthquake in Nepal and mental depression issues. These and other difficulties are referred to in the psychologist’s report outlined below and assessed thereafter.

18. The applicant in response to the NOICC provided a psychologist’s report which is stated as being in relation to his education history and ‘all matters’. The Tribunal takes it that the applicant was stating that the matters in the psychologist report explain the issues surrounding the explanation for the claimed breach of the visa conditions. The ‘psychological counselling report’ is dated 10 October 2016 of Stephen Sutton, Registered Counselling Psychologist. The report refers to the frequent changes by the applicant in his courses. The report indicates that it is hard to work out what was exactly happening to the applicant at this time. Closer questioning revealed a history of the tendency to anxiety and associated obsessive perfectionism to please his family. There may have been adjustment problems to study in Australia which created stress. He was moving around to avoid failure and the debilitating consequences of this for him. The applicant’s family’s detergent business in Nepal was destroyed in the 2015 Nepal earthquake causing them to lose their income. His mother suffered a leg injury and went to hospital but the family was okay. The applicant’s family were financially stressed but they insisted that the applicant stay and study. The applicant felt stressed and guilty and was unsure how his family would support his study. The applicant started to drink to help him relax. Excessive drinking led him to gamble. The applicant entered into his first serious relationship. The applicant became lonely and depressed when the relationship broke down due to the applicant’s drinking and gambling. The applicant drank more to cope with this rejection. All of this affected his ability to focus on his studies. The applicant eventually passed his Diploma of Accounting.

19. The report continues that the applicant had been due to enrol in an Advanced Diploma of Accounting in March 2016 (in fact a Diploma of Accounting). The applicant’s family sent him money for this. However, the applicant had not recovered from the stresses in 2015 and the applicant continued to drink over the Christmas break. The applicant used the study money for drinking and gambling. He did not have enough money to pay for his enrolment. This exacerbated the applicant’s stress, anxiety, guilt and depression which caused him to increase drinking and gambling. It was a vicious cycle. The applicant was ashamed to tell his family what had happened fuelling his drinking. The applicant’s family thought that he was attending to his study, as they still do. It was for these reasons that the applicant was not enrolled.

20. The applicant met another Nepalese girl in January 2016. The applicant improved his situation as result of wanting a relationship with this girl. He succeeded to the extent that they started a relationship in August 2016. She has been a good support. The applicant’s brother also came to Australia as a student in August 2016 and has been a great support for the applicant. The applicant has stopped drinking and gambling since July and is feeling keen to continue with his studies. He has contacted a consultant who has enrolled him in an Advanced Diploma of Business which he started in September 2016. The applicant also undertook a four-week English course in August to help meet his visa requirements and also to get his studies started again and rebuild his confidence before the Advanced Diploma. The applicant appears to have gotten his life back on track and is keen to make amends to his family for past failures, even though they do not know what happened.

21. A standard Depression/Anxiety/Stress Scale (DASS) was administered to the applicant assessing the period April 2015 to August 2016. The applicant reports severe symptoms for stress, anxiety and depression.

22. It is hoped that the report can explain the applicant’s absence from study from November 2015 to August 2016.

23. The Tribunal discussed with the applicant in the hearing this psychologist’s report as explaining his various failures to be enrolled in a registered course and engage in study. The Tribunal noted that the report indicates that the applicant completed his Diploma of Accounting which does not seem to be the case according to the information in the delegate’s decision. In terms of the Diploma of Accounting which PRISMS indicates that the applicant finished on 25 October 2015, information from his education provider to the Department indicates that the applicant was deemed not yet competent in the units required for this course. In response in the hearing, the applicant indicated that although he finished this course, he did not complete it. The applicant indicated that he only told the psychologist that he finished the course rather than completed it.

24. The Tribunal asked the applicant how the various adverse issues suffered by the applicant, claimed because of anxiety, obsessive perfectionism, adjustment problems, and financial difficulties caused by the Nepal earthquake explain why the applicant constantly changed courses. In response, the applicant referred to being mentally stressed, drinking and gambling and feeling that he needed to enrol in multiple courses.

25. The Tribunal put to the applicant that it was not likely to consider that problems caused through drinking and gambling would either indicate that the applicant was a genuine student notwithstanding these issues or be considered extenuating circumstances beyond the applicant’s control. In response, the applicant indicated that he had wasted all of his money.

26. The Tribunal put to the applicant that if he was having mental health issues, then the appropriate action would have been to maintain enrolment in a registered course and seek a deferral on compassionate, compelling or medical grounds rather than a failure to be enrolled. In response, the applicant indicated that he felt alone and was scared and was reluctant to approach any of his education providers to seek a deferral.

27. The Tribunal explored with the applicant his progression in the Advanced Diploma of Business that was commenced on 26 September 2016 due to be completed on 5 March 2017. The Tribunal notes that the psychologist’s report from October 2016 indicates that the applicant had recovered from his difficulties and is keen to progress with his studies.

28. In the hearing, the applicant indicated that he stopped studying this course at the halfway point. He indicated that he passed no units in this course. In explanation as to why he did not complete this course and passed no units, the applicant reiterated various issues outlined in the psychologist report. The Tribunal noted to the applicant that his psychologist had attested that the applicant’s issues had resolved in October 2016 allowing the applicant to continue with his studies. This did not seem to be borne out by the applicant’s subsequent study history.

29. The Tribunal noted to the applicant that from 10 November 2016 until currently, other than for the period from 9 January 2019 until 16 March 2019, there was no restriction on his various bridging visas affecting his ability to study. The Tribunal indicated that there were no records or indication of the applicant studying any other courses during these considerable periods when he would not have been prevented from studying. The Tribunal indicated to the applicant that it might be expected that, if he had an intention to study in Australia, he might have enrolled in a registered course to enable him to study. In addition, this would demonstrate to the Tribunal and ongoing desire to study as demonstrated by past commitments and study progress, albeit after the period in which the student visa was cancelled. In response, the applicant indicated that at the point he was seeking his first review with the AAT, he did not realise that he was able to study.

1. The applicant indicated that his lack of study is also explained by his need to seek appropriate English-language accreditation for further study which he obtained in May 2019. The applicant indicates that he has now received an offer of enrolment in a Diploma of Business commencing in April 2020 and that he intends to study this course if the visa is reinstated.

2. The Tribunal assesses the evidence in terms of if the applicant is not, or is not likely to be, a genuine student. Considering the totality of the applicant’s study history in Australia, the Tribunal readily finds that the applicant is not, or is not likely to be, a genuine student.

3. This is as a result of the cumulative consideration of the failure by the applicant to successfully complete any course in Australia, other than an English course, his constant changing of courses, his breach of visa conditions to be enrolled in a registered course and to be enrolled in a higher education sector course, his lack of successful study following the applicant’s psychologist indicating in October 2016 that past issues had resolved, enabling the applicant to successfully continue with his studies.

4. The Tribunal is not satisfied that the various claimed extenuating factors, including mental health issues, drinking and gambling are suggestive that the applicant has been or is a genuine student despite those issues.

5. The Tribunal is not satisfied that the various extenuating factors claimed by the applicant reasonably explain the applicant constantly enrolling in different courses and never successfully completing a course, other than the English course. The Tribunal considers that the more likely explanation for this course of conduct was for the applicant to limit the extent to which he failed to be enrolled in a registered course, as a requirement of his visa conditions.

6. The Tribunal considers that if there had been serious mental health issues that the applicant should have approached education providers to seek a deferral on compassionate or compelling grounds even if the applicant had some reluctance to approach his education provider. The Tribunal therefore does not accept that the applicant is a genuine student despite mental health issues. The Tribunal would also not be satisfied that mental health issues would be an extenuating circumstance beyond the applicant’s control for his failure to be a genuine student in the exercise of the Tribunal’s discretion, discussed below. The Tribunal is not satisfied that drinking and gambling are mitigating factors both as to whether the ground of cancellation is made out or if there are extenuating circumstances beyond the applicant’s control for the ground of cancellation being made out in the exercise of the Tribunal’s discretion, discussed in the next section below.

7. The Tribunal is not satisfied that financial impediments caused by the 2015 earthquake in Nepal created substantial barriers to the applicant studying in Australia. This is on the basis of the applicant’s own evidence that money was available for the applicant for his studies in late 2015 but the applicant drank and gambled this money away. The Tribunal therefore would not be satisfied that the applicant is a genuine student in spite of financial issues, or that financial impediments should be considered an extenuating circumstance beyond the applicant’s control for his failure to be a genuine student, in terms of the exercise of the Tribunal’s discretion below.

8. The Tribunal takes as adverse to the applicant the fact that he has engaged in no study whatsoever following the ceasing of the Advanced Diploma of Business in late 2016. If the applicant did not realise that he could study, the Tribunal considers this because the applicant paid little regard to checking bridging visa limitations because he did not have a desire to study. The failure to undertake study from the end of 2016 including after the visa was cancelled is adverse to the applicant’s claims of being a genuine student. It is also adverse to the applicant in the exercise of the Tribunal’s discretion as to whether the visa ought to be cancelled, discussed below.

9. Considering all of the evidence, the Tribunal is readily satisfied that the applicant is not, or is likely not to be, a genuine student.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

11. 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’.

12. The various claimed extenuating circumstances beyond the applicant’s control as to why the applicant suffered difficulties with his studies are discussed in the previous section as to whether the ground of cancellation is made out. As detailed in that section, the Tribunal is not satisfied that the various claimed issues of mental health issues, funds not being available for study, not realising he could study for significant periods after his visa was cancelled, and drinking and gambling are extenuating circumstances beyond the applicant’s control that reasonably explain or justify him not being a genuine student.

13. The applicant indicates that a hardship to him if the visa remains cancelled and his compelling need to remain in Australia is the fact that he would be denied the ability to progress with a desired enrolment in a Diploma of Business. The Tribunal has credibility concerns as to the genuineness of this desire by the applicant, given his study history in Australia and his recent lack of progression with such a course whilst he has had the legal ability in Australia to study. Even if the Tribunal were to accept some hardship in this respect, it would not outweigh the significant matters adverse to the applicant in the exercise of the Tribunal’s discretion.

14. The applicant indicated that there will be a hardship to him if he returns to Nepal because his family will be very disappointed at his lack of study progress in Australia. The Tribunal accepts some hardship to the applicant in this respect.

15. The Tribunal accepts a hardship to the applicant if the visa remains cancelled in that he would be denied the ability to apply for many other visas onshore. The Tribunal accepts that if the visa remains cancelled, the applicant could be an unlawful noncitizen. However, the Tribunal considers it likely that the applicant would continue to hold a bridging visa, making his status lawful.

16. The applicant indicated in the hearing that there are no children in Australia whose interests would be affected by the cancellation of the visa. The applicant indicated that he does not fear persecution or significant harm on return to Nepal. Therefore Australia’s non‑refoulement obligations are not enlivened in this matter.

17. The Tribunal weighs relevant discretionary factors both adverse and favourable to the applicant. The factors adverse to the applicant are considerable and significant in terms of his lack of study progress in Australia and his breach of various visa conditions for which the Tribunal does not accept there are extenuating circumstances beyond the applicant’s control. The Tribunal accepts that there will be some limited hardship to the applicant if the visa remains cancelled.

18. Weighing discretionary factors, the Tribunal readily determines that the visa should remain cancelled.

19. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    David McCulloch
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.