Pun (Migration)

[2024] AATA 516

Pun (Migration) [2024] AATA 516 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bishal Pun

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  2305364

HOME AFFAIRS REFERENCE(S):          BCC2023/454611

MEMBER:Jennifer Cripps Watts

DATE:13 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 13 February 2024 at 5:01pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was not enrolled in a full time registered course – breached condition 8202 – an extensive period of non-enrolment – many of answers relating to study history have been vague – COVID had affected his ability to enrol and study – mode of study being changed to online – applicant gave working a higher priority than studying while he held a student visa –mental health condition – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 116, 359

Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 April 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under the power of s 116 of the Act on the basis that the applicant had not complied with a condition of his student visa.  The issue in the present case, the same substantive issue on which the visa was cancelled, is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by MS-Teams video on 25 January 2014 to give evidence and present arguments.  The applicant applied for a second student visa on 6 April 2023.  On 29 September 2023, the visa was refused, essentially because of the cancellation of his earlier student visa that is the subject of this review.  The applicant applied for review of both the cancellation and refusal decisions:  Tribunal matters 2305364 and 2316595 respectively.  A combined hearing for the related matters was held, with the consent of the applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.  The audio-visual connection was good, occasionally questions and answers were clarified which is not unusual in a migration hearing.  Overall the hearing was completed without any problems.

4. The applicant’s representative, Mr Siddique, attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

6. A separate decision will be made by the Tribunal on the review of the refusal of the applicant’s student visa, Tribunal matter 2316595,

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant, as the holder of a subclass 500 temporary student visa, has breached condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

8. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course, from 20 October 2021 until 27 January 2023:  condition 8202(2)(a).

10. The Department notified the applicant in writing of the intention to consider cancellation (NOICC) of his student visa that was granted in 2020.  The applicant responded to the NOICC on 19 March 2023.  The Tribunal has considered the matters raised by the applicant in his written response; that is, reasons why his visa should not be cancelled, and to additional documents and oral evidence given to the Tribunal.

11. The applicant’s student visa was granted in March 2020.  He was enrolled in a course(s) of study from March 2020 to around October 2021, two consecutive enrolments in bachelor degrees in the field of Information Technology and Systems.  He was not enrolled in a course of study from October 2021 until January 2023 when he enrolled in a suite of VET level cooking/hospitality courses.

12. The applicant arrived in Australia holding a subclass 500 student visa to study a Bachelor of Information Technology and said he did one semester but was not sure if he finished the semester at IT Academy in Sydney.  It is widely reported in the media that the World Health Organisation (WHO) declared COVID-19 a pandemic on 11 March 2020.  The applicant departed Nepal and arrived in Australia on 15 March 2020, and said he was expecting classes would be face to face.  The applicant was required to self-isolate when he arrived in Australia and during this time found out the classes would be conducted online.  The applicant was asked if he considered deferring the course and said he did, but the college ‘didn’t agree’.  The applicant struggled with the remote mode of study and isolation from friends and family.  He explained that the course included a lot of coding and technical ‘stuff’.  He had been ‘in the field’ in Nepal, but said the course was more challenging that he could manage.  The applicant said that he felt if the classes were face to face it would have been easier to ask questions.  An education consultant advised the applicant to switch to a Bachelor of Information Systems, which would have less coding.  The applicant switched courses to a Bachelor of Information Systems in September 2020

13. The Tribunal is satisfied with the applicant’s explanation that the course and mode of delivery for his first bachelor degree enrolment presented some unique challenges for him and considers the change of course from Information Technology to Information Systems to have been a sensible choice in his circumstances.  He was a young international student, who was away from home for the first time, during a pandemic, isolated from other students, friends and family due to restriction of movement generally relating to the pandemic and also because the course was being conducted online.  It seems he considered, and inquired about, deferring and returning to Nepal.  As well as the reluctance of the education provider to allow the applicant to defer, he also considered that his family had already paid the $6,500 fee for the Bachelor of Information Technology and ultimately said he felt bound to continue when the option of deferring was refused, which is entirely understandable.

14. The applicant said he raised his struggle with the first bachelor degree with an education consultant and, on the basis of the advice he was given, enrolled in a similar course but with less coding, which he had been finding difficult.  The applicant said he still struggled with the study, which he commenced in about September 2020.  By mid-2021, the applicant has essentially disconnected from his study and in October 2021 the his second bachelor degree enrolment was cancelled by the course provider. 

15. The applicant gave evidence that came across as excuses, as opposed to valid or good reasons, why his enrolment was cancelled.  

16. The applicant claims he was not aware that his enrolment in the second bachelor course, a Bachelor of Information Systems ceased in October 2021.  The applicant says he received an email from the education provider (VIT) informing him that they intended to report his unsatisfactory course progress to the Department and that he responded to the email on 20 September 2021, giving the primary reason as financial hardship due to the pandemic.   He received a response from VIT requesting that the applicant pay a $1,000 fee instalment and on 4 October 2021 he paid the $1,000 to VIT.  He said he didn’t pay any more instalments because he was waiting for VIT to ask him to or send an invoice.  It was put in the manner of a question that perhaps it might have been his responsibility to ensure his fees were paid, and that he attend classes.  The applicant said he did not do either because he was waiting to be contacted by VIT. 

17. The applicant conceded at the Tribunal hearing that he had not been attending classes or paying fees from late 2021, although he says that the non-payment of fees was not his fault because VIT didn’t send him an invoice; he also referred to being on a ‘study break’.  The applicant was told that the Tribunal considered it implausible of him to suggest that from the time of the July 2021 term break to October 2022 he thought he continued to be enrolled when he was not attending classes or paying fees.  The applicant maintained this is what he thought and that he was surprised to find out he was not longer enrolled in the VIT course in October 2022 and, on realising that he was no longer enrolled in a course of study, he enrolled in a suite of VET level hospitality courses in January 2023.  He commenced study in February 2023 in the first course, a Certificate III in Commercial Cookery, but did not finish the first semester because his student visa was cancelled.

18. On 14 March 2023 the Department notified the applicant of the intention to consider cancellation (the NOICC) of the student visa he was granted in March 2020.  The applicant provided a written response giving reasons why his visa should not be cancelled.  The reasons he gave at the Tribunal hearing in his oral evidence were generally consistent with the response to the NOICC and are discussed in this discussion.

19. In January 2023 the applicant next enrolled in a suite of VET courses in the hospitality sector; a Certificate III in Commercial Cookery, Certificate IV in Kitchen Management, a Diploma of Hospitality Management and a Graduate Diploma of Management (Learning).  He commenced the Certificate III in early February 2023, but his student visa was cancelled on 12 April 2023 and there is a ‘no study’ condition on the bridging visa the applicant holds while awaiting review of the decisions to cancel his first student visa and refuse his second.

20. For three years, up to January 2024, the applicant has worked at Cherry Bean Coffee Roasters in Drummoyne, in the kitchen.  There was a break of a month or so around the time his visa was cancelled in April 2023, but the applicant said that his work rights were restored and he has continued to work there.  The applicant provided a letter from his boss confirming the applicant had worked at the café for 36 months, and some payslips.

21. At the Tribunal hearing, the applicant was asked what the conditions are for the bridging visa he currently holds and said that there is no study, no travel, and that he must notify the Department of any change of address.  The applicant seemed to very clearly understand his current bridging visa conditions and was asked what the conditions were relating to his student visa that he held up to April 2023.  The applicant said that to maintain the visa he had to attend regular classes and pay his fees on time.  It was put to the applicant, as a question, that he was aware of these conditions but that he did not comply with them for a period of time.  The applicant responded, ‘yes’.

22. It is somewhat troubling that the applicant seemed to be aware of the visa conditions, did not comply with the study requirement, but did avail himself of the opportunity to work.

23. The applicant was asked if he had applied to have the ‘no study’ condition lifted from his bridging visa and said he had but he wasn’t sure what the outcome was.

24. The applicant’s circumstances were discussed in detail at the hearing.  On consideration of evidence material to the question of whether the applicant breached condition 8202(2) requiring that he be enrolled in a course of study, the Tribunal finds that the applicant was not enrolled in a full time course of study from October 2021 to January 2023.

    Adverse matters put to the applicant at the Tribunal hearing

25. On the basis of the applicant giving oral evidence that he thought he had applied for study rights, Mr Siddique addressed the Tribunal and said that he had applied for the applicant’s bridging visa, that there is a ‘no study’ condition, and confirmed that he had not applied on behalf of the applicant to have the study restriction lifted from the bridging visa.  Mr Siddique suggested the applicant had ‘misconstrued something’. 

26. The Tribunal considered this to be, in effect, Mr Siddique giving oral evidence adverse to the applicant, because it was inconsistent with what the applicant had said.  The Tribunal told the applicant it intended to put the adverse matter to him at the hearing and read the relevant parts of s 359AA of the Act to him before commencing. 

27. The Tribunal has some sympathy for applicant when he arrived in Australia in 2020 holding his first student visa at a young age; he was born in the year 2000.  The WHO had declared COVID-19 a pandemic only a few days earlier; he had to self isolate; his classes were moved online; English is not his first language; and he found things very difficult.  He struggled with his mental health, his father was ill in Nepal, and his parents had less funds available to support the applicant financially.  The Tribunal told the applicant that it accepted that he found the first bachelor degree he enrolled in and which he had his enrolment cancelled, to be too hard.  However, for a number of different reasons he has given, the applicant does not seem to feel anything was his fault relating to his periods of non-enrolment.  Giving oral evidence at the Tribunal hearing, the applicant had been at times vague and internally inconsistent and his claim that he thought he was enrolled up to October 2022, as already mentioned, is considered to be implausible.

28. The Tribunal told the applicant that it did not accept, as Mr Siddique had suggested, that he had ‘misconstrued’ whether he had applied for study rights, because he had said in his oral evidence that his representative had applied for study rights.  The applicant was told that he appeared to have said so because he thought that is the answer he thought the Tribunal wanted to hear.

29. The applicant was told that the Tribunal already had some concerns about his credibility because many of his answers relating to his study history have been vague and at times he had been evasive in his answers.  The applicant was reminded the review is about him having his visa cancelled because he was not enrolled in a course of study.  The Tribunal provided the applicant with an example of his evidence that lacked credibility, that he was claiming that he thought it was someone else’s responsibility to tell him when to pay his fees and when he had to attend classes.  The Tribunal put to the applicant that it is his responsibility and that he could not possibly have thought that he was enrolled, and that he did not check his enrolment status as he had claimed, for nearly 18 months.  He was told that this was not a credible claim when he had not paid his course fees or attended any classes from June 2021 to October 2022.

30. The applicant had been informed that his credibility relating to these matters was in question and of the concern that he may be giving working a higher priority than studying, and that this would be the reason or part of the reason for affirming the decision to cancel his visa.  The applicant was invited to comment or respond; he was informed that he could ask for more time to respond at a later time.  At 12:09pm, the applicant requested an adjournment to speak with his representative.  The adjournment was granted and the applicant and his representative disconnected from the hearing and rejoined the online hearing about five or so minutes later.  The applicant indicated he wished to comment at the hearing.

31. In response, the applicant said, in summary, that after the student visa cancellation, he didn’t have work or study rights relating to the Bridging Visa E which he applied for in April 2023.  The applicant said he really did think his representative applied for the ‘no study’ condition to be lifted, referring to the oral evidence he had given earlier at the hearing.

    Consideration of the discretion to cancel the visa

32. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 Procedural Instruction ‘General visa cancellation powers’.

    Purpose of the visa holder’s star in Australia and whether he has a compelling need to remain in Australia

33. The applicant was granted a subclass 500 student visa, that is the subject of this review, and arrived in Australia in March 2020.  The primary purpose for his stay, on the basis of the visa he held, was to study.  While the applicant has had occasional enrolment in courses of study, he did not complete any course of study from March 2020 up to the time the visa was cancelled in April 2023.  The applicant had a significant period of time, around 15 months from October 2021 to January 2023, where he was not enrolled in any course of study.  He has subsequently enrolled in a suite of VET courses in cooking and hospitality, but due to the visa cancellation he did not complete the first semester of the Certificate III and has not resumed study since April 2023.  In these circumstances, the Tribunal does not consider there to be a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

34. The applicant’s student visa included condition 8202, which includes the requirement that he be enrolled in a course of study.  For 15 months of the three or so years the applicant held the student visa, he was not enrolled in a course of study, which is considered to be significant non-compliance with the visa condition.

    Degree of hardship that may be caused, such as financial, psychological, emotional or other hardship

35. The applicant has given evidence that the financial investment in his study in Australia will cause both financial and emotional hardship to him and his family.  The applicant has given evidence about his poor mental health during the period when he did not maintain enrolment and it is accepted that he may be emotionally or psychologically affected if he cannot stay in Australia to continue to study.  It has now been nearly four years since the applicant came to Australia for the primary purpose of studying.  While it is acknowledged some fees have been paid for various enrolments from time to time, they cannot be considered significant amounts because of his period of non-enrolment and non-payment of fees. 

36. In February 2023, the applicant commenced the first of a suite of hospitality courses, a Certificate III in Commercial Cookery.  He had part completed the first semester when his visa was cancelled.  The applicant has worked part-time in Australia, since around 2021, and this income stream will end as a result of cancellation and it is accepted he paid fees for this course.

1. There are likely to be some hardships that the applicant and his family may suffer.  While the Tribunal does not consider the financial outlay to have been substantial, due to the applicant’s lack of progress and periods of non-enrolment, money was spent by the applicant and his parents and, for this reason, it is possible and even likely that he and his family will suffer at the very least some level of stress as a result of cancellation of the applicant’s student visa. 

2. The applicant said he has been working for the best part of three years at his current place of employment at Cherry Beans Coffee Roasters in Drummoyne and that it may be that a level of hardship may be caused to the owner of the business if the applicant’s visa is cancelled and to the applicant himself if he cannot continue to work there.

3. Some positive weight is given to hardships that may be caused in the circumstances described above.

   Circumstances in which the ground for cancellation arose

4. The Tribunal has accepted that the applicant’s difficult start to his time onshore as a student from March 2020 was caused to a degree by factors beyond his control, including the mode of study being changed to online, the applicant’s isolation from other students and friends and family, his father’s ill health, reduced financial support and the applicant struggling to find his place in a different country and culture in a language that was not his first language.

5. By the time the ground for cancellation arose, the applicant claims that he was suffering adverse mental health as a result of the difficulties he had experienced, which have already been described earlier in this decision, from his arrival in March 2020 to around the end of 2021.

6. The Tribunal has considered the response the applicant provided to the Department’s NOICC and the written and oral evidence provided on review.  The explanation about the circumstances in which the ground for cancellation arose and the applicant’s reasons why his visa should not be cancelled are generally consistent from the time of application and through the review process at the Tribunal.

7. From the second half of 2021 to the end of 2022, the applicant claims to have thought he was enrolled in a course of study, even though he had not been paying his fees or attending classes.  By the time the applicant’s non-enrolment period commenced, towards the end of 2021, most local more onerous restrictions and limitations relating to the COVID-19 pandemic had ceased.  It was from this time onwards that the applicant was non-compliant with condition 8202 which required that he was enrolled in a course of study.  He did however work from January 2021 onwards, which suggests to the Tribunal that he gave working a higher priority than studying while he held a student visa. 

8. There is little, if any, genuine or credible evidence before the Tribunal that the applicant’s circumstances in which the ground for cancellation arose, were by late 2021 beyond his control, or that the applicant took any purposeful steps to mitigate any difficulties he may have been having during that time to address the situation.  Such as contacting the education provider to work something out.  This was raised with the applicant at the hearing and he said he was waiting for them to contact him.  The applicant gave evidence that around that time he had COVID twice, and that he was having mental breakdown, but has provided no documentary evidence to confirm either of these matters.  The Tribunal is inclined to believe that the applicant suffered both, however does not attribute the conditions as being the cause of the commencement of the applicant’s period of non-enrolment and non-compliance.  This is because the Tribunal is not satisfied, due to lack of verifiable evidence, when the applicant suffered these conditions or to what extent it would have prevented him attending online classes.

   Past and present behaviour of the visa holder towards the Department

9. There is no information before the Tribunal of any behaviour of concern in the applicant’s dealings with the Department.

   Whether there would be consequential cancellations under s 140

10. There is no information before the Tribunal, and the applicant has made no claim, that there is any other person who will be subject to cancellation under s 140 of the Act.

    Mandatory legal consequences

11. The Tribunal has considered whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

12. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable to detention under s 189 of the Act, and removal under s 198 of the Act, if he does not voluntarily depart Australia. The applicant would also be affected by s 48 of the Act, which means he would have limited options available to apply for another visa in Australia, and also Public Interest Criteria 4013, which may prevent him from being granted another Australian visa within the next three years. The applicant has had a student visa application refused because he does not meet PIC 4013. However, if the Tribunal finds there to be compelling or compassionate circumstances, PIC 4013 can be waived.

    Australia’s international obligations

13. The Tribunal has considered whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation.  The applicant has no children.  There is no information before the Tribunal, nor has any claim been made by the applicant, that Australia’s international obligations would be engaged if the visa is cancelled.

    Whether the applicant has strong family, business or other ties to Australia

14. This consideration is only applicable where the cancellation is of a permanent visa.  The student visa is a temporary visa and the Tribunal is not required to consider this matter.

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

    DECISION

16. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Jennifer Cripps Watts
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.