PUDASAINI (Migration) - [2018] AATA 4773

PUDASAINI (Migration) [2018] AATA 4773 (8 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr NITESH PUDASAINI
CASE NUMBER:  1618746
HOME AFFAIRS REFERENCE(S):           BCC2016/2874689
MEMBER:Melissa McAdam
DATE:8 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 08 October 2018 at 1:12pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – not completed any higher education sector course – poor attendance – claimed unfavourable treatment by college – freedom in Australia – gambled – lack of academic progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Huo [2002] FCA 574
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The delegate cancelled the visa under s.116(1)(fa)((i) on the basis that the applicant was not a genuine student.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant held a Subclass TU573 Student visa, with expiry date 30 August 2017.
On 7 November 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his Student visa, inviting him to comment on a possible breach of s.116(1)(fa)(i) of the Act.
The NOICC stated that the Department’s records indicated that the applicant did not hold a valid Confirmation of Enrolment (CoE) from 20 October 2014 to 27 March 2015 and from 25 October 2015 to 20 August 2016; that he did not undertake any study from 14 September 2014 to 27 April 2015 or from 25 October 2015 to 2 September 2016; and that he had not studied for a cumulative period of approximately seventeen months.
The NOICC further stated that the applicant held a TU573 Higher Education Sector visa, however since 9 April 2014 he had not been enrolled in studies of a type specified for SubClass 573 visas.
The NOICC stated that the applicant had continually changed his enrolment and either cancelled or failed to re-enrol in a course after the course commencement date. His education providers gave the Department evidence of poor course progress and attendance.
The NOICC stated that the information indicated that the applicant’s primary intention is not to study or likely to undertake study, and that he is not a genuine student.
On 11 October 2016 the applicant submitted a psychological report from Stephen Sutton, dated 10 October 2016. The report referred to the applicant having anxiety; finding his studies too difficult; the destruction of his family’s factory by the 2015 earthquake; his family’s financial stress; drinking excessively; a gambling addiction;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PUDASAINI (Migration) [2018] AATA 4773
Case: [2018] AATA 4773
Decision Date: 8 October 2018

CaseChat Overview and Summary

This matter concerned an appeal by a visa holder against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had not completed any higher education sector course, had poor attendance, and claimed to have experienced unfavourable treatment by his college due to a dispute between its owners. He also cited gambling and a lack of academic progress as reasons for his situation. The decision was made by Melissa McAdam.

The legal issues before the Tribunal were whether the applicant had genuinely engaged in higher education studies in Australia and whether the discretion to cancel his visa should be exercised. The Tribunal was required to consider the applicant's purpose for travel, his compliance with visa conditions, the circumstances leading to the grounds for cancellation, and the potential hardship to the visa holder.

The Tribunal found that while the applicant initially travelled to Australia with the purpose of studying higher education, he had not substantially engaged in active study or completed any higher education course. His attendance was poor, and his enrolment was not maintained over a significant period. While the Tribunal acknowledged the applicant's claims of being influenced by others, gambling, and distress caused by the 2015 Nepal earthquake, it considered these factors to be largely within his control or not sufficient justification for his prolonged lack of genuine student activity. The Tribunal gave limited weight to the earthquake as an extenuating circumstance.

Ultimately, the Tribunal concluded that the weight of the considerations supported the cancellation of the applicant's visa. It affirmed the decision to cancel the Subclass 573 Higher Education Sector visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The following is a summary of the information he presented at the hearing. a.He confirmed that he was not enrolled in a course of study for a substantial amount of time in Australia. b.He was last enrolled in a course of study in 2016. c.He was enrolled in a course of higher studies for just one year in 2014. His attendance was poor but he submitted assignments. He was disadvantaged by receiving unfavourable decisions by the remaining institution owner following a joint ownership dispute. He stopped studying because of the earthquake in Nepal in 2015. He wanted to return to Nepal then but his parents did not want him to. His parents live in Kathmandu in Nepal.d.He was receiving money from his parents in Nepal when he first came to Australia. He works part-time to support himself in Australia.e.When he arrived in Australia he was enrolled in a Bachelor of Accounting degree. It was not what he wanted to do but his parents forced him to enrol in this course. He stopped attending his course. He is aware that his visa required him to be enrolled in higher education studies but he did not like accounting. He wants to obtain a Bachelor of Sports and Fitness. f.His plans are to wait to receive the Tribunal’s decision. If it is positive he will enrol in an Advanced Diploma of Business at Sydney Metro College. After he completes his Advanced Diploma of Business he will enrol in a Bachelor of Sports degree. There is a degree course offered at UTS and there may be other courses. His Consultant will advise him about this. He does not know what he will do if the decision is negative. He cannot return to Nepal.g.He made mistakes when he first came to Australia to study. He was 19 and did not know anything about Australia, or life. He was here alone. He met some people and started living with them. They were a bad influence on him. He spent his parents’ money on going out and gambling. He felt free from his parents and home and wanted to enjoy his time. So he missed his classes and studies. It was the worst decision he has made. Now he can’t return to his family because they will think badly of him. He would like to finish his studies in Australia.h.He no longer lives with the friends who were a bad influence on him. He now lives with his cousins in Lidcombe. They are students and they are attending their studies.i.His parents do not know his visa has been cancelled. They think he is continuing to study accounting in Australia. He has not told them because they will be upset with him. They will think he is useless.j.If he resumes his studies his parents will provide him with the money he needs. Even though it will cost thousands of dollars they will do this for him. They will take out loans to provide the money. When he first studied he accumulated a loan debt of $9,000. His parents paid this for him by taking out a loan themselves. He also has savings of $3,000 he can contribute to the cost of his studies in Australia.k.The Tribunal put to the applicant that because his Student visa was due to expire in August last year, its decision whether or not to affirm the cancellation of the visa will not have any effect on the visa itself. The applicant responded that although he is aware that the visa expired in 2017 he simply hoped that if it is not cancelled now he would be able to use it to continue his studies. He is not sure whether this is possible and has not make any enquiries.l.There are only two reasons he cannot return to Nepal. One is that he does not want to let his parents down and the other is that he does not want to let himself down. He has so much guilt. He does not want to be a child who does nothing for his parents.m.There is nothing else about his situation in Nepal that makes him not want to return there.CONSIDERATION OF CLAIMS AND EVIDENCE

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the weight of the considerations outlined above support the cancellation of the applicant’s visa. The Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Melissa McAdamMemberATTACHMENT – 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.

Ratio Decidendi

Legal Principle Established

As that ground does not require mandatory cancellation under s.116(3), the Tribunal will proceed to consider whether the power to cancel the visa should be exercised.Consideration of discretion 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’.The purpose of the visa holder's travel to and stay in Australia The Tribunal is satisfied that the applicant travelled to Australia with the original purpose being to study higher education. The Tribunal notes that the applicant has not substantially engaged in active higher education study in Australia and has not competed any higher education course. The Tribunal finds this consideration weighs against the applicant.The extent of compliance with the visa conditions The applicant was granted a student visa subclass 573 to undertake a course of higher education study, and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573 visa, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily. The Tribunal notes the applicant’s evidence and the evidence from the applicant’s education providers that his attendance was poor and that his course enrolment was not maintained. The Tribunal notes that this non-compliance has occurred over a substantial period of time and places weight upon this. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions. It considers that this is a consideration in his favour, and has taken this into account and given it some weight.The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. The Tribunal notes the applicant’s evidence that his lack of application to his studies and poor attendance initially arose because he met people who influenced him to go out, enjoy himself, and gamble. And later, the impact of the earthquake in Nepal upon his family and others, caused him distress so he did not apply himself to his studies. The Tribunal considers that the first of these explanations for the applicant’s lack of genuine student activity, centres around a lack of maturity and responsibility in the applicant. The Tribunal consider this was something of the applicant’s own making, not a circumstance beyond his control, and not an extenuating circumstance. The distress caused to the applicant by the 2015 earthquake in Nepal would understandably have affected him emotionally and caused him great concern. The Tribunal considers this would for a period of time, adversely affect his ability to engage in and prioritise his studies. However the Tribunal does not consider it justification for the applicant’s prolonged lack of genuine student activity and his inability to maintain enrolment in higher education courses. The Tribunal gives this limited weight in the applicant’s favour.The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of the cancellation decision.