Pun (Migration)

[2024] AATA 518

Pun (Migration) [2024] AATA 518 (6 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bishal Pun

REPRESENTATIVE:  Mr Abu Siddique, Legal Practitioner

CASE NUMBER:  2316595

HOME AFFAIRS REFERENCE(S):          BCC2023/2170762

MEMBER:Jennifer Cripps Watts

DATE:6 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 6 March 2024 at 11:15am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant did not satisfy Public Interest Criteria (PIC) 4013 – a visa he previously held was cancelled – applicant did not comply with a condition of the visa – there are no compelling or compassionate circumstances in the applicant’s case – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 116
Migration Regulations 1994, Schedule 2, cl 500.217

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 September 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 April 2023. 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 (Cth) (the Regulations) because the applicant did not satisfy Public Interest Criteria (PIC) 4013.

4. The applicant appeared before the Tribunal on 25 January 2024 to give evidence and present arguments.  The applicant had two related student visa applications with the Tribunal on review.  A combined hearing was held for both, with the consent of the applicant.  An interpreter in the Nepali and English languages assisted the applicant at the hearing.  Mr Siddique attended the Tribunal hearing.  He provided a written submission beforehand.

5. The two related applications are summarised as follows:

   a.Tribunal matter number 2305364 (the student visa cancellation)

   The applicant’s previous subclass 500 student visa, which he held as the primary visa applicant, was cancelled on 12 April 2023 under the general power of s 106(1)(b) of the Act because the applicant did not comply with condition 8202 which required the applicant to be enrolled in a full-time registered course of study.  On 16 April 2023, the applicant applied to the Tribunal for review of the decision to cancel his previous student visa and provided the Tribunal with a copy of the primary decision record.

   On 13 February 2024 the Tribunal affirmed the decision to cancel applicant’s previous student visa in Tribunal matter number 2305364.

   b.Tribunal matter number 2316595 (the student visa refusal)

   On 6 April 2023, the applicant made an application for a subclass 500 student visa, This visa was refused on 29 September 2023., essentially because the applicant’s previous student visa had been cancelled and he was therefore subject to a ‘risk factor’; Public Interest Criteria (PIC) 4013 prevents him from being granted another visa within three years of the cancellation of his previous student visa on 16 April 2023.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. The issue in the present case is whether the applicant meets the requirements of PIC 4013 or, if he doesn’t, the Minister or Tribunal on review is satisfied that there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa within 3 years after the cancellation or determination.

8. At the commencement of the hearing, the Tribunal summarised the facts and circumstances in the of the decisions relating to the two review applications and checked with the applicant if he wanted to correct any of the information.  The applicant indicated that none of the information needed correction. 

9. The applicant was told at the hearing that the decision made may be positive or unfavourable in this case and the circumstances in which either of those outcomes would arise.

10. The Tribunal wrote to the applicant on 20 February 2024 informing him of adverse information, namely, that because his previous student visa had been cancelled and the cancellation was affirmed on review by the Tribunal on 13 February 2024 that it appeared he could not meet the PIC 4013 criteria for the purpose meeting primary criterion cl 500.217 for the grant of the student visa that is the subject of the current application. The details were particularised in the Tribunal’s letter and the applicant was informed of the consequences of the Tribunal relying on the information. He was invited to respond in writing, or request an extension of time to respond, no later than 5 March 2024. The applicant was also invited to submit any compelling or compassionate reasons (as they are described in PIC 4013(1)(b) of Schedule 4 of the Regulations) that justify the granting of the visa within 3 years after the cancellation. By 6 March 2023, the Tribunal had received no response. Nor did the applicant request an extension of time to respond or comment.

    Compelling or compassionate circumstances

11. At the combined Tribunal hearing on 25 January 2024, just prior to the conclusion of the hearing, the applicant was asked, in the event that the Tribunal affirmed the decision to cancel his previous student visa, whether there were any relevant compelling or compassionate circumstances in his case.  It was explained to the applicant what this meant.  He gave oral evidence that maybe his boss ‘might be affected’.  The applicant had provided the Tribunal with a letter dated 12 January 2024 from Sang Jin Cha, Director, Cherry Beans Coffee Roasters Pty Ltd (the café), confirming that the applicant is currently employed as a cook and that he has 36 months of work experience at the café.  The reference is a positive one as to the applicant’s work and capabilities.  However, there are no matters raised in the letter that are compelling or compassionate in favour of justifying the grant of the visa.  No verifiable evidence was provided that indicates whether the applicant’s boss is an Australian citizen, permanent resident or eligible New Zealand citizen.

12. The Tribunal accepts that the applicant has been working at the café for three or so years, that he likes the work, that his boss is pleased with him and his work, and that he wishes to compete his studies to be a cook.  However, the Tribunal does not consider any of these matters to be unique or exceptional and, on that basis, to be compelling.  The Tribunal is not convinced that if the applicant discontinued work at the café that it is likely his current position could not be filled by someone else.  No claim has been made, nor evidence provided, that indicates this would adversely affect the café or the director.

13. The applicant also submitted in his oral evidence that to return home he would have wasted time and money.  The applicant is a temporary Australian visa holder and the waiver exceptions do not apply to him for that reason.  The applicant suggested that it would be in the interest of Australia to allow him to finish studying cookery to gain more knowledge.  The applicant’s study record was discussed with him at the hearing.  He confirmed in his oral evidence that he started studying Information Technology at bachelor degree level when he first arrived holding a student visa in 2020, but that he found the subject matter too difficult.  He changed education providers a couple of times to study similar courses, but did not complete them.  Towards the end of 2022, the applicant enrolled in a VET level commercial cookery course and commenced study in February 2023.  The applicant studied the commercial cookery course for a short period of time before his visa was cancelled and, as a consequence, he no longer had study rights.  The Tribunal appreciates that the applicant found study difficult in Australia, for various reasons.  However, his study history is very poor.  The Tribunal is not satisfied that waiving the PIC 4013, for that reason, is a compelling circumstance in the interest of Australia.  That is, to continue to provide the applicant with an opportunity to continue study when there is little if any evidence that he indicates he would complete any study.

14. At the conclusion of the combined hearing, Mr Siddique indicated he may wish to provide a written submission.  It was agreed that the submission, if one was to be made, should be provided by 2 February 2024.  No further submission was received by the Tribunal.

    Conclusion

15. The applicant is affected by a risk factor in PIC 4013(2) of Schedule 2 to the Regulations, that is, a visa he previously held was cancelled under s 116 of the Act because he did not comply with a condition of the visa (Tribunal matter number 2305364). If a person is affected by a risk factor specified in PIC 4013(1), essentially they cannot be granted a visa within the three year period following cancellation unless there are compelling or compassionate circumstances as they are described in PIC 4013(2) that justify the granting of the visa within 3 years after the cancellation.

16. The applicant previously held a student visa that was cancelled under s 116 of the Act on 23 April 2023.  He applied for merits review and, in Tribunal matter 2305364, the decision to cancel the applicant’s previous student visa was affirmed on review.  The Tribunal has made findings, above, that there are no compelling or compassionate circumstances in the applicant’s case that justify granting the visa in this matter within 3 years after the cancellation.

17. Accordingly, the Tribunal is not satisfied that the applicant meets PIC 4013

    DECISION

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

    Jennifer Cripps Watts
    Senior Member