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

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 delegate cancelled the visa under s.116(1)(fa)((i) on the basis that the applicant was not a genuine student.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant held a Subclass TU573 Student visa, with expiry date 30 August 2017.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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; breaking up with his girlfriend; starting a new relationship; and resuming his studies in an Advanced Diploma of Business in September 2016.

11. The delegate cancelled the visa on the basis that the applicant was not a genuine student.

12. The applicant submitted a copy of the delegate’s decision to the Tribunal. The decision detailed the following:

    ·The applicant’s study plan in Australia was to complete a Tertiary Preparation Program (‘TTP’) through Curtin College from November 2013 to June 2014; to then complete a Diploma of Commerce through Curtin College; and to finally undertake and complete a Bachelor of Commerce at Curtin University of Technology.

    ·The applicant’s student records indicated that:

    oHis enrolment in the TTP course was cancelled on 9 April 2014 because he ‘notified his cessation of studies’, and his last day of study was 14 February 2014.

    oHis enrolment in the Diploma of Commerce and Bachelor of Commerce was cancelled on 9 April 2014 ‘for non-commencement of studies’.

    oOn 5 March 2014 he enrolled in a Diploma of Accounting at Pacific College for study between 5 May 2014 and 5 November 2015.

    oOn 20 October 2014 his enrolment at Pacific College was cancelled because he notified his ‘cessation of studies’.

    oOn 27 March 2015 he enrolled in a Diploma of Accounting at ALIF Australia.

    oOn 30 March 2015 his enrolment at ALIF Australia was cancelled because of his request to start the course in April.

    oOn 30 March 2015 he enrolled again in a Diploma of Accounting at ALIF Australia.

    oOn 29 April 2015 his enrolment at ALIF Australia was cancelled noting that the applicant wanted to change to a business course.

    oOn 29 April 2015 he enrolled in a Diploma of Business at ALIF Australia.

    oOn 2 September 2016 he enrolled in General English at Australian Ideal College and completed the course on 23 September 2016.

    oOn 30 August 2016 he enrolled in an Advanced Diploma of Business at Sydney Metro College.

    ·Information provided by Curtin College indicated he was found non-competent in three of the four subjects he undertook at the college.

    ·Information from Pacific College indicated he was issued with nine attendance warnings and two course progress warnings.

    ·Information from ALIF Australia indicated he was deemed not competent in the units for a Diploma of Business therefore he did not complete the course of study.  He was issued with an academic progress warning.

13. 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

14. 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)(i). 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.

    Does the ground for cancellation exist?

15. 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.

16. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 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]).

17. 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 set out in the attachment to this decision.

18. On the evidence before it, the Tribunal finds that the applicant has not completed any higher sector education course, and has completed only one lower sector education course (‘General English’), since his arrival in Australia in late 2013.

19. The Tribunal notes the applicant gave evidence of the bad influence of others leading him to disregard his studies in Australia soon after his arrival. The applicant also cited the April 2015 earthquake in Nepal as a reason he did not attend his classes and to his studies. He considers he received unfavorable treatment from a college owner for the assignments he submitted.

20. The Tribunal notes the lack of progress the applicant made in his studies and the recurring cancellations of his enrolments, often after just a brief commencement period. On the applicant’s own admission he failed to attend classes and gave up on his studies to enjoy his new ‘freedom’ in Australia with the funds his parents had provided for his study. The Tribunal considers that if the applicant was a genuine student he would have attended class and made progress in relation to his higher education studies. The Tribunal finds that the applicant has not been a genuine student in Australia. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(fa)(i) is made out.

21. 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

22. 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

23. 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

24. 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.

25. 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.

26. 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. 

27. 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.

28. 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.

29. The applicant has raised that the cancellation of his visa will upset both him and his parents and make his parents think much less of him.  The Tribunal accepts that this may well eventuate.  However there is no evidence that he or they will be caused any significant degree of financial, psychological or emotional hardship if his visa is cancelled.  The Tribunal therefore give little weight to this factor in considering whether to cancel the visa.

    The visa holder's past and present behaviour towards the department (for example, whether a person has been truthful in statements or cooperative in their dealings with the Department).

30. The Tribunal has no evidence before it that the applicant's past and present behaviour towards the Tribunal has been untruthful or uncooperative. It considers this is a consideration in his favour.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

31. There is no indication that  there are persons in Australia whose visas would or may be cancelled under s.140 of the Act. The applicant has stated that he is alone in Australia. The Tribunal therefore finds this factor is not a relevant consideration.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

32. The applicant did not raise any matters to suggest that this is an issue. Nor is there any other evidence or indication before the Tribunal that a relevant international agreement obligation may be impacted by the cancellation of the applicant’s visa.  The Tribunal therefore finds this factor is not a relevant consideration.

    Whether there are mandatory legal consequences to a cancellation decision.

33. The cancellation of the visa would mean that the applicant may become an unlawful noncitizen if his Bridging visa ceases and he remains in Australia without obtaining a subsequent valid visa.  The applicant would then become liable to detention and removal from Australia. The Tribunal also notes that the applicant’s Subclass 573 visa expired in August 2017.  Therefore the Tribunal’s decision to affirm or set aside the Department’s cancellation decision will not affect the natural expiry of the visa which occurred last year.  A decision to set aside the cancellation will not result in the applicant automatically holding a substantive visa in Australia. The Tribunal does not consider that the factor of the applicant becoming liable to detention and removal if he remains in Australia without a valid visa, outweighs other factors that support the cancellation of the visa.

34. The Tribunal has also taken into account the fact that the applicant would face being subject to PIC 4013 and a three-year exclusion period on temporary visas.  However the applicant has not presented any compelling need to remain in Australia or to return to Australia within the next three years. The Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that support the cancellation of the visa.

    Any other relevant matters

35. There are no other relevant matters before the Tribunal.

    Conclusion

36. 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 cancelled

    DECISION

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

    Melissa McAdam
    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.