Rapal (Migration)

[2019] AATA 5697

Rapal (Migration) [2019] AATA 5697 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naresh Rapal

CASE NUMBER:  1923625

HOME AFFAIRS REFERENCE(S):         BCC2019/2637198

MEMBER:D Triaca

DATE:2 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 December 2019 at 4:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – non-payment of fees – financial issues – sick relative – mental health issues – remained employed during breach – lack of evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

CASES

Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244

Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The Applicant is a citizen of Nepal. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 19 August 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2.The Applicant’s student visa was granted 8 May 2018 and permitted the applicant to reside in Australia for the purposes of full-time study. It was his second student visa, the first having been granted in 2016. The second visa was granted so that he could successfully complete a Master of Biotechnology and Business. He initially started studying at Mercury University in Sydney. He subsequently transferred to Holmes Institute.

3.The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

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

HEARING OF APPLICATION

5.The Tribunal convened a hearing to consider the merits of the application on 29 November 2019. The Applicant appeared before the Tribunal in person via video link from Sydney. The Applicant’s migration agent did not attend the hearing.

6.For the following reasons, the Tribunal has decided to affirm the decision to cancel the Applicant’s visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.The Applicant’s visa was subject to a number of conditions as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

8.Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 20 July 2018 to 19 August 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 12 months during which the Applicant was alleged to be in continuous breach of the visa.

9.The delegate’s finding was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

10.The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course of study since 18 July 2018. The Applicant’s course provider, Holmes Institute, had cancelled his enrolment in the Master of Biotechnology course due to the Applicant failing to pay fees. The PRISMS report indicated that the Applicant had not enrolled in any other registered course following 18 July 2018.

11.The Department of Immigration and Border Protection wrote to the Applicant on 5 July 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

12.The Applicant responded to NOICC in writing on 9 July 2019 (‘the Applicant’s NOICC response’). The Applicant did not dispute that he was in breach of his visa of the period alleged by the delegate. At the hearing before the Tribunal he confirmed that he was not enrolled in a registered course of study for the period alleged.

13.Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of his visa.

Consideration of the Discretion to Cancel the Visa

14.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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

·whether there are mandatory legal consequences arising from a decision to cancel the visa;

·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202 and Applicant’s Evidence

15.The Applicant is a 28 year old citizen of Nepal. He comes from the region of Panchtar in Eastern Nepal. He arrived in Australia in 2016 on a student visa intending to study a Master of Biotechnology and Business. He enrolled in and commenced studying at Mercury University in Sydney.

16.Sometime later the applicant transferred his studies to Holmes Institute. He says that he made reasonable academic progress after he transferred to Holmes. He was interested in business and found that Holmes had a good business focus. He says he passed 6 to 8 subjects and he needs to complete a further two semesters in order to complete his degree. The applicant provided no documentary evidence to demonstrate the extent of his academic progress in Australia. I accept, however, that he has made some academic progress in Australia but would require a further two semesters in order to complete his studies.

17.In May of 2018 the Applicant obtained a second student visa. It was around this time that his studies fell away and in July 2018 his enrolment was cancelled by Holmes.

18.The Applicant’s reasons for the cancellation of his enrolment are as follows.

19.In about May of 2018, his mother became ill in Nepal. He says that she required hospitalisation for a medical condition. He provided the Tribunal with medical records confirming his mother was hospitalised at the B&C Medical College Teaching Hospital & Research Centre in Nepal. He reports that after returning home from hospital, his mother experienced further complications and was unable to get proper medication. He stated her issues took at least 6 months to resolve and she has not completely recovered.

20.The Applicant’s family live in a region of Eastern Nepal that required a lengthy commute to the hospital. His mother was unable to work in the family business, a jewellery business in Nepal and as a result, his family experienced financial issues and was unable to financially support him in Australia.

21.He returned home to Nepal for approximately 2 months in December 2018.

22.He says that due to financial issues, he was unable to pay his course fees and this led to the cancellation of his enrolment in July 2018. At the time of the delegate’s decision, he had been in continuous breach of his student visa for a period of approximately 13 months. The Tribunal considers this is a significant period of time.

23.He states that his course fees were approximately $6,500 per semester. He says that his parents had been assisting him financially and were unable to do so after his mother’s illness.

24.He says that he experienced depression during this period as he was unable to study. The Tribunal asked whether he sought medical treatment in relation to mental health issues. He said he had been to a Doctor for ‘one session’ in 2018. He says he is now ‘okay’ and he if he is granted a further visa he is ready to return to study.

25.The Applicant works in the kitchen at an Italian restaurant. He works for 20 hours per week. He worked throughout the period of the breach, except for his time in Nepal and he continues to do so.

26.The Tribunal has reviewed the Applicant’s evidence and notes the following:

(a)The Tribunal accepts that the Applicant’s mother fell ill during 2018 and this caused him some anxiety.

(b)It also accepts that the Applicant was financially disrupted due to his parents being unable to provide him with the financial support he was expecting.

27.However, it does not consider that the illnesses of the Applicant’s mother in Nepal created a chain reaction whereby he was unable to study, or take any meaningful steps to return to study, for a period of 13 months. In this regard the Tribunal notes:

(a)The applicant was 27 years old when his mother became ill. He had already completed a Bachelor Degree in his home country and was studying a Masters. There was nothing to suggest that he was unaware of the fees when he enrolled in the course and the Tribunal considers he would have been well aware of the course requirements at the relevant time;

(b)Whilst the withdrawal of financial support may have been unexpected and caused some difficulty for the applicant, the Tribunal considers that it was incumbent on the applicant to make arrangements to resolve his financial situation or return home to Nepal until such time as his family’s finances improved. There is no indication that the applicant sought to engage with the Department or the course provider to seek their assistance to defer payment.

(c)The Applicant was employed at the time of the breach, and continued to work during it. He says he is currently working in the kitchen at an Italian restaurant, indicating that he had the capacity to study throughout the period of the breach.

28.The Tribunal notes the applicant has stated his financial situation and his mother’s illness caused him to have depression in 2018. The Tribunal questioned the applicant in relation to whether or not he had sought medical treatment for mental illness. He says he attended ‘one session’ with a Doctor. There is no evidence of any follow up, or any treatment that the applicant underwent. The applicant does not claim that he would be hampered by mental health issues now and seeks to return to study. The Tribunal considers that the applicant’s evidence in relation to his mental health falls well short of establishing that he was unable to study for an extended period of time due to diagnosable mental health issues. The reality is that he was able to work during the period of the breach which indicates he ought to have been able to return to study at some stage during the relevant period.

29.The Tribunal questioned the applicant in relation to whether he attempted to return to study. He says that about 4 months ago he attempted to re-enrol at Holmes but was unable to do so as his visa was cancelled. The Tribunal considers attempting to return to study, only after the cancellation of his visa, only weighs minimally in the applicant’s favour.

30.The Tribunal does not consider that the applicant’s breach of condition 8202 was due to factors outside his control. Ultimately payment of fees is the responsibility of the student. The applicant’s evidence may explain the breach occurring in 2018. However, the Tribunal considers that there is no satisfactory explanation for the length of the breach, or the failure of the applicant to resolve the situation and return to study in a reasonable period of time.

Purpose of Applicant’s Stay in Australia; whether he has a compelling need to travel to or remain in Australia.

31.The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. The Tribunal accepts that the applicant arrived in Australia with a purpose of studying. He had previously completed a Bachelor’s Degree in Nepal, he enrolled and commenced studying in Australia.

32.However, from about July 2018 the applicant’s purpose in Australia was not studying and this has continued to be the case for the remainder of the applicant’s time in Australia.  

33.The applicant states he would like to return to study and if given the opportunity he will complete the Masters course he commenced. The Tribunal considers he may return to study if given the opportunity, but does not regard this as certain. The Tribunal is concerned about the ability of the applicant to manage the course fees and costs associated with completing his studies given his previous failure to do so. He says that he will seek a loan from his family but has provided no evidence as to whether that is likely.  Further, the applicant’s future intention must be viewed in the context of the fact he certainly had the opportunity to study in Australia throughout 2018 and early 2019 and he chose not to do so and his future intention weighs minimally on this case.

34.‘Compelling‘ and ‘Need‘ are terms that ought to be given their ordinary meaning having regard to the purposes of the legislation.[2] They are not defined in either the PAM3 or the Act.

[2] Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355

35.Compelling was considered in some detail by Crennan J, (then sitting on the Federal Court) in Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244;[3] in the context of ‘compelling reasons’ to mean ‘forceful and therefore convincing.’ Need is a relative concept. It plainly means more than want but falls well short of ‘cannot survive without‘.[4]

[3] At [37] to [45]

[4] See R, (on the application of M) v Slough Borough Council {2008] WLR 1808 at [54]; Boettcher v Driscoll (2014) SASC 86 at 41 per David J.

36.In this context, the Tribunal does not consider the applicant has advanced a compelling need to remain in Australia.

Extent of Applicant’s Compliance with Visa Conditions

37.Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions.

Hardship

38.The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that he and his family will be disappointed if he is not allowed to complete successfully an Australian qualification.

39.The Tribunal has considered the applicant’s stated concern that he regards it as a hardship that his family has spent money to get him to Australia that will be lost if the visa is cancelled. The applicant provided no documentary evidence in relation his family’s contributions and it is difficult to assess the extent of hardship his family members may suffer in circumstances in which he also says he was unable to pay his fees on account of the fact that his family were unable to support him for a period.

40.It is apparent from the applicant’s evidence that he is very concerned about returning home because he has not alerted his family to the fact that he is experiencing any issues in relation to his visa. This appears to have exacerbated his stress and embarrassment in relation to returning home. I also take into account that the applicant may feel worse about the situation due to his family’s financial support and his concerns about letting those family members down. The Tribunal takes these matters into account in favour of the applicant.

41.However, the context is that this is a significant breach of the visa condition, the cancellation of the applicant’s visa reflects the intention of the legislation and the seriousness of the beach. The Tribunal also considers that the applicant‘s employment prospects upon his return are not as bleak they may seem noting that he has a Bachelor’s Degree from his home country, has made some academic progress and ought to have acquired further skills and knowledge in Australia and he has also has a solid work history.

42.In these circumstances, the Tribunal does not consider the applicant faces a significant hardship if his visa were cancelled the Tribunal places only minimal weight in the applicant’s favour in relation to this factor.

Applicant’s Behaviour towards Department

43.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. He was responsive to the Department’s NOICC and amended NOICC. He has at all material times been co-operative in assisting the Department towards the resolution of this matter.

Other Visa Holders

44.There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

45.The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met.

46.The Tribunal considers these to be the intended consequences of the legislation. The applicant indicated that he would return home in the event that his application was unsuccessful and in those circumstances will not be subject to detention. Accordingly, I give this factor minimal weight.

International Obligations

47.The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

48.In all the circumstances, having regard to all the evidence before it, the Tribunal is of view that the applicant’s visa should be cancelled.

DECISION

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

D Triaca
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.