RAI (Migration)

[2018] AATA 5810

RAI (Migration) [2018] AATA 5810 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BIKRAM RAI

CASE NUMBER:  1621298

HOME AFFAIRS REFERENCE(S):           BCC2016/3151885

MEMBER:Wendy Banfield

DATE:17 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 December 2018 at 3:53pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – business studies – not enrolled in registered course – non-payment of fees – financial difficulties – gambling – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, condition 8202, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 which was imposed on his Student Visa. It was determined that the applicant had not been enrolled to study from 9 November 2015 and 26 November 2016 as required by the holder of the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Nepal and is currently 38 years old. He came to Australia on 28 July 2008 to study a Bachelor of Business (Accounting). He completed the Bachelor degree in 2011 and was granted a graduate skilled visa. The applicant then enrolled to study a Diploma of Business but was unable to continue due to financial issues.

4. The applicant appeared before the Tribunal on 5 November 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

   Evidence of the visa applicant

6. The applicant provided evidence at the Tribunal hearing and also submitted a written statement. He had previously provided a statement of reasons dated 21 November 2016 to the Department in response to the Notice of Intention to Consider Cancellation.

7. In the statement to the Department the applicant declared the visa cancellation would cause hardship for his family as they lost income due to the Nepal earthquake and he would have to leave Australia. He also stated that at the time he was the sole support for his family and without a good job in Nepal he would not be able to pay his debts. The applicant explained he had not been provided an opportunity to pay his study fees on an instalment basis and these issues led to the cancellation of his COE by the education provider. The applicant claimed he had completed his studies on time and had not breached any visa conditions. In the written statement he claimed he wanted to finish his Diploma and return to Nepal to work in the banking and finance industry. It was claimed the non-compliance was due to circumstances beyond the applicant’s control due to a disaster in his home country. The applicant said his father had advised him to stay in Australia due to the uncertainty in Nepal. The applicant referred to issues in Nepal specifically as political transformation, clashes with police and opposing political parties as well as strikes. He stated if he had to return he would face an uncertain future.

8. In a written statement to the Tribunal dated 1 November 2018 the applicant relevantly declared:

   ·     He came to Australia in 2008 and completed a Bachelor of Professional Accounting;

   ·     While studying for a Diploma of Business he was unable to pay the fees and his COE was cancelled. The Department then cancelled his Student Visa;

   ·     The applicant has been unable to obtain a new COE due to his visa being cancelled;

   ·     As a result of the cancellation, the applicant has faced mental health issues and became addicted to gambling;

   ·     The applicant is now aware of the issue and has arranged a meeting with a counsellor.

   The hearing

9. The applicant confirmed he came to Australia on 28 July 2008 and completed a Bachelor of Business in 2011. He was then granted a temporary graduate visa but claimed he had been unable to find a job. The applicant decided he may start his own furniture business. According to the applicant he studied one semester of a Diploma of Business but was unable to pay the fees following the earthquake in Nepal in 2015. The applicant said he also developed a gambling addiction.

10. The applicant advised he wishes to complete his studies and return to Nepal but has been unable to re-enrol due to his visa cancellation. He was asked whether the qualifications already obtained in Australia would be sufficient for him to return to Nepal and he said he did not know what the situation was like in the country as he has not been back for 10 years. When asked what he had done since his visa was cancelled, the applicant said he had tried to obtain enrolment but as he could not, he did not do anything. The applicant conceded he had not been enrolled for the relevant period, which was from 9 November 2015 to 26 November 2016.

11. The applicant said the reason his visa was cancelled was because his finances had been affected by the earthquake in Nepal. He was sent warning letters by the college to pay fees but had been unable to do so. The applicant said he had an education loan from his own country which he had to repay so he could not afford his fees. When asked why he did not return to Nepal at that time he said he had to repay his loan and the situation in Nepal was not good. He was also worried about his visa. The applicant was reminded that the Student Visa is intended for applicant’s to study in Australia, not to pay off loans they have taken out for the purpose. The applicant explained it was a lot of money and he had thought he could apply for a skilled visa which would make his life better. For this reason he wanted to stay here legally.

12. The applicant claimed he would face financial hardship if his visa is cancelled. He said his parents needed his support and he had to send money back to Nepal. He reiterated he wants to finish a Diploma of Business and will then look at opening his own business such as a furniture business. The applicant was then referred to his written submission in which he stated he had a gambling problem. He said this had occurred over the last two years and he had tried many times to book a counselling session to get help but was scared. According to the applicant he called a gambling help line but had not taken up any referral. However, he said he had booked a session with Wesley Mission for the coming Friday. The applicant requested time to attend the counselling session as he had never been before but the Tribunal reminded him the visa had been cancelled nearly two years previously and denied his request. The applicant again said he had tried “many times” to seek help but he was scared. The Tribunal told the applicant it appeared he had now arranged counselling because his hearing was scheduled. The applicant denied this was the case but did not explain what else had changed so that he was now able to seek help, except to say he was not ready for it before.

13. The applicant said he is staying with a friend because he used up his income and the friend convinced him to try and get another chance. He said he had been lonely and spent his time gambling as a result. He said he had heard good things about counselling and wanted to see if it would help. When asked about having contacted a gambling helpline the applicant said they had told him not to worry, to be patient, not to think too much about the problem and to stay positive. When asked if he had contacted the Department about his situation during the period he was not enrolled, the applicant claimed that he did and that he had been told a case officer was not yet assigned. The applicant was asked if he had sought advice about his situation before his visa was cancelled and he reiterated that as he was not able to pay the fees, his COE was cancelled. The applicant advised there was no one else who would be affected by his visa cancellation.

14. 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

15. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (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?

16. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

17. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

18. The applicant did not dispute that he had not been enrolled for more than 12 months, from 9 November 2015 to 26 November 2016. He advised he had encountered financial difficulties and could not pay for course fees required in order to study a Diploma of Business. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

19. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·     the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

20. The applicant was in Australia as the holder of a Subclass 572 Student Visa which was granted on 12 June 2015 and was valid until 15 March 2017. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was for study.

21. The applicant advised that following his Bachelor degree, he was granted a graduate visa in Australia but was unable to find a job during that period. He enrolled in a Diploma of Business, however; he was unable to continue due to financial issues. The applicant said in a written statement to the Department dated 21 November 2016 that he wanted to return to Nepal and work in banking and finance. He gave evidence to the Tribunal that he is now considering opening a furniture business. In either case, the applicant did not provide satisfactory reasons for wanting to undertake an additional Diploma course. When asked why his degree qualifications from Australia would not be sufficient, the applicant said he did not know what the situation was like in Nepal as he has not been back for 10 years.

22. It does not appear that the applicant has clear plans for the future or specific reasons for wanting to continue studying. The Tribunal considers the applicant has not demonstrated a powerful or convincing reason for staying in Australia and is not satisfied the applicant has a compelling need to remain.

    ·     the extent of compliance with visa conditions

23. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

24. The applicant provided evidence to the Department regarding hardship that he alleges may result from his visa being cancelled. In a written statement of 21 November 2016 the applicant declared that if his visa is cancelled, his family in Nepal would face hardship because they lost income due to the 2015 earthquake. The applicant also referred to the fact he would have to leave Australia. In the written submission from 2016 the applicant stated he was the sole support for his family and without a good job in Nepal he would not be able to pay his debts. During the Tribunal hearing on 15 November 2018 the applicant also referred to financial hardship if his visa is cancelled. He said his parents needed his support and he had to send money back to Nepal.

25. The applicant also advised the Tribunal during the hearing that he had an education loan from Nepal that he needed to pay off. He said because he had to repay the loan, he had been unable to pay his course fees. According to the applicant’s oral evidence, he has developed an addiction to gambling as well and for financial reasons he is currently living with a friend. The applicant did not provide any independent evidence of a gambling problem, an outstanding education loan or his current financial situation in support of his claims.

26. The Tribunal has considered the applicant’s claims in this regard and accepts that if his visa is cancelled, he may face a degree of financial hardship. The applicant would be unable to work or study in Australia and would have to return to Nepal. The Tribunal affords some weight in the applicant’s favour on these grounds.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

27. The applicant provided evidence to the Tribunal about the circumstances in which the grounds for cancellation arose. The applicant did not dispute that he was not enrolled to study for more than 12 months from 9 November 2015 to 24 November 2016.

28. According to the applicant’s evidence at the hearing, the grounds for cancellation arose because his finances had been adversely affected by the 2015 earthquake in Nepal. He stated his education provider sent warning letters requesting payment of fees but he had been unable meet his obligations. The applicant said he had obtained an education loan in Nepal and the requirement to repay it meant he could not afford his course fees. The applicant said he did not return to his home country because he had to repay the loan and at the time, conditions in Nepal were not good.

29. The applicant did not provide a satisfactory explanation for his activities over the 12 month period when he was not enrolled to study. The applicant’s evidence suggested his visa had been cancelled upon his enrolment being cancelled but this was not the case. The Department did not take action for a full year and it appears the applicant did not make contact with them during that time, or seek advice about his adverse financial situation. The Tribunal considers it likely the applicant was working during the relevant period in order to pay his debts and living expenses, as well as helping his family in Nepal. While the Tribunal sympathises with the applicant regarding the 2015 earthquake in his home country, it is the responsibility of Student Visa holders to ensure they have the financial means to continue their studies. It was open to the applicant at the time to return to Nepal and assist his family from there. At the time he had already achieved a tertiary qualification which would have been a benefit to him in future.

30. The Tribunal does not accept that the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. He did not provide independent evidence of the impact of the Nepal earthquake upon him or his family, or how it directly affected his ability to study. Having considered the evidence available, the Tribunal does not place any weight in the applicant’s favour on the circumstances that led to the cancellation of his visa.

    ·     past and present behaviour of the visa holder towards the department

31. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

32. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

33. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa not to be cancelled.

    ·     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

34. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

35. The Subclass 572 Student Visa is not a permanent visa.

    ·     any other relevant matters

36. The applicant gave evidence about a gambling problem that he claimed had developed in the last two years. According to the applicant he is currently living with a friend as he has lost income because of this issue. The applicant’s oral evidence was that he considered seeking counselling for his gambling but at the time of the hearing had not pursued any avenues for help. The applicant sought time to attend a counselling session that he said was scheduled for the Friday following the hearing. The Tribunal did not agree to a postponement of the matter because the applicant had the previous two years to address his alleged addiction to gambling. The applicant said he had called a gambling helpline at some point but became somewhat vague when asked about the advice he received. He said he had not followed up any assistance because he was scared. However, apart from saying he had not been ready to receive help before; the applicant did not explain what had recently changed so that he was able to schedule a counselling session after the Tribunal hearing. The Tribunal was of the view the applicant was motivated to attend a counselling session because of his upcoming hearing rather than for genuine reasons.

37. As stated, the applicant did not provide independent evidence of a gambling problem such as bank statements or other information about his financial situation and in the absence of such evidence, the Tribunal places no weight in the applicants favour on this claim. In addition, the applicant said he developed the problem in the last two years, after his visa was cancelled and therefore the alleged gambling problem was not a factor in the cancellation of the applicant’s student visa.

1. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal accepts there are certain aspects in the applicant’s case that weigh in his favour, on balance, the Tribunal is satisfied that the considerations weigh heavily against the applicant.

2. The Tribunal concludes that the ground for cancellation in s.116(1)(b) exists and having regard to all the relevant circumstances, as discussed above, the Tribunal considers the visa should be cancelled.

   DECISION

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

   Wendy Banfield
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)A holder meets the requirements of this subclause if:

   (a)the holder is enrolled in a registered course; or

   (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

   (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.