Rijal (Migration)

[2019] AATA 2624

Rijal (Migration) [2019] AATA 2624 (26 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saroj Rijal

CASE NUMBER:  1817010

HOME AFFAIRS REFERENCE(S):           BCC2018/1034711

MEMBER:Christine Kannis

DATE:26 April 2019

PLACE OF DECISION:  Perth

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

Statement made on 26 April 2019 at 4:13pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – Bachelor of Business – not enrolled in registered course – financial difficulties – mental health issues – inconsistent evidence – no extenuating or compassionate circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 June 2018 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 (the Act).

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

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments.  

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

6. 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

7. 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)(b), that the Minister may cancel a visa if the Minister is satisfied that its holder has not complied with a condition of the visa. 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.

   Did the applicant comply with Condition 8202?

8. On 7 May 2017 the applicant was granted a visa in Subclass 500 (Student) with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

9. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since his enrolment in a Bachelor of Business was cancelled on 31 August 2017.  Having regard to this information, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 31 August 2017. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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 by his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

12. On  15 May 2018 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

    Response to NOICC

13. On 18 May 2018 the applicant responded to the NOICC  and provided the following information:

    ·He came to Australia in July 2014 to study a Diploma of Business leading to a Bachelor of Business majoring in Accounting.

    ·He completed the diploma course and commenced the Bachelor of Business at Edith Cowan University (ECU) around July 2015. He passed the first semester with credits.

    ·In February 2016 he deferred his studies due to financial issues related to the earthquake in Nepal. He resumed his studies in August 2016 and completed the August semester.

    ·His study loan was based on his parents’ house and their incomes but due to the natural disaster the bank closed for six months and a new loan could not be met.

    ·He continued his studies in the February 2017 semester and took a few units only.

    ·His family’s financial situation was still in disarray and he was trying to manage his life in Australia with very basic means available to him.

    ·He was in the process of applying to ECU for an extension due to his family’s bad financial situation.

    ·In October 2017 he received an exclusion from ECU on the basis of Academic Progression Status. He appealed the exclusion and was awaiting a response from ECU.

    ·Suddenly he received the NOICC and he then approached ECU seeking an explanation. ECU told him that as an adult it was his responsibility to follow up things if they were not received on time. He requested a written confirmation as to whether any notification had been sent to him but was advised that it would take up to five working days to generate an enquiry.

    ·He did not receive a notification from ECU and if he had he would not have waited to receive a visa cancellation.

    ·He intends completing his study and to pursue a career in the Accounting and Finance industry. To this end he secured new CoEs and they were attached.

    ·He only worked part-time in an Accounting firm as a graduate as per his visa condition.

    ·He has always complied with his visa conditions and his course deferral was due to the natural disaster in Nepal which caused severe personal and financial losses. The event was beyond his control.

    ·His family’s financial situation has improved significantly since 2015 and he can now continue with his studies. It will take 6 to 12 months before they can afford the costs of the Bachelor course fee.

    ·Due to the stress he would find it easier to do an Advanced Diploma Course of Studies while he recovers from the mental stress of all his losses.

    ·If his visa is cancelled then he and his family will feel like being in the earthquake situation for the second time because of the lost time and money invested in his study in Australia.

    ·At times he has wanted to quit but his employer and work colleagues provided support which helps him stay focussed on his studies and his career. He is learning new skills for his career and will comply with all his visa conditions in the future.

    ·He is living with relatives and does not have many living expenses and can save money for his studies from his part-time employment.

    ·He has not changed his field of study and works in his chosen field which shows his genuine intention to study.

14. At the time of responding to the NOICC the applicant provided a copy of a letter dated 10 August 2017 to ECU in which he appealed his exclusion status on the ground of exceptional circumstances. The letter referred to the earthquake in Nepal in 2015 and the applicant’s poor financial circumstances. He also provided evidence of the earthquake.

15. In his response to the NOICC the applicant referred to providing a CoE however only a Letter of Offer dated 17 May 2018 was provided. The letter was from Acknowledge Education and was for an Advanced Diploma of Business and a Bachelor of Business (Accounting).

    Written submission

16. Prior to the hearing the hearing the applicant’s representative provided a written submission which included the following:

    ·On 25 April 2015 an earthquake in Nepal destroyed the applicant’s family home. The applicant’s parents had taken out a bank loan linked to the home and their incomes to pay for his study in Australia. With the loss of the home and the Bank having to cease to trade due to the earthquake, the applicant was not able to access funds to pay for his studies.

    ·The applicant enrolled in two subjects in semester 2, 2015. He passed one and failed one. Due to the lack of funds he deferred his study in February 2016 and recommenced study in August 2016 taking a limited number of courses due to financial difficulties.

    ·In September 2016 the applicant decided he would need to apply for a further deferment due to his family in Nepal having financial difficulties.

    ·The applicant’s parents were unable to work for 18 months after the earthquake. They had a restaurant but the earthquake damage and lack of tourists meant they were unable to operate it.

    ·In July 2017 the applicant received a Notice of Exclusion from ECU based on his Academic Progression Status. He lodged an appeal against the decision and had still not received an acknowledgement.

    ·The applicant was reliant on his parents to pay his tuition fees and contribute to his living expenses in Australia until he could find work in Australia. His parents were adversely affected by the earthquake.

    ·There were unexpected and unforeseen circumstances beyond the applicant’s control that made it impossible for him to remain enrolled in a registered course.

    ·The applicant has enrolled in an Advanced Diploma course in Accounting and will complete the course in July 2019. He will then enrol in a Bachelor of Accounting.

    ·The applicant found work in December 2014 in a Nepalese restaurant. After the earthquake in April 2015 he sent money to his parents in Nepal to enable them to survive and to keep his sister at university in Nepal.

    Evidence at hearing

17. The applicant told the Tribunal he has completed a Diploma of Business. He initially said he completed it at the end of 2014 however subsequently said in semester 1, 2015 he studied some units he had previously failed. He commenced a Bachelor of Business in July 2015. The deposit for this course was prepaid and due to his family being an earthquake victim ECU allowed him to pay fees at a concessional rate of $6,000 for semester 2, 2015.

18. The applicant said in February 2016 he requested ECU to accept payment of his fees at a concessional rate again however this was refused and so he deferred his semester 1, 2016 study. He resumed study in semester 2, 2016. His fees were $6,000 and his uncle in Australia paid the fees.

19. He continued study in semester 1, 2017 and paid fees of $6,000 from his savings and from money his parents provided.

20. He did not have money to pay for fees in semester 2, 2017 and this is when he ceased to be enrolled. The applicant explained that he worked in a restaurant in 2016 and his employer offered to sponsor him on a subclass 457 visa as a manager. The applicant said after visiting Nepal in July-August 2016 he returned to Australia and told his employer he wanted to continue with his studies and he asked his employer to sponsor his sister on a subclass 457 visa instead. He gave his employer all the documents necessary for the subclass 457 visa for his sister. His employer asked him for money to lodge the visa.

21. The applicant’s evidence regarding the money he paid to his employer was inconsistent and at times vague. Initially he said he paid the employer $25,000 to $30,000 to sponsor his sister to Australia. When asked the source of these funds he said he paid his employer from his savings. He subsequently said he paid $6,000 from his savings and borrowed $5,000 from a friend. He also said he worked for a year without pay to make up the balance of the money “paid” to his employer.

22. The applicant told the Tribunal that after he paid his employer he had no money pay for fees in semester 2, 2017. He said his employer had told him that he would make money available and would give him a credit card to pay his fees. The employer did not provide a credit card or money. The applicant said he could not ask his uncle to pay his fees again.

23. The applicant contended that the earthquake resulted in his parents not having access to a bank loan and as a result they were unable to pay his fees in semester 2, 2017.

24. The Tribunal put to the applicant that he would have known in August 2017 that he was no longer enrolled in a course. He conceded that he was aware of this and said he did not know what to do. The Tribunal put to the applicant that when his visa was granted he was advised of the conditions of his visa and of his notification obligations. The Tribunal asked the applicant whether he contacted the Department when his enrolment circumstances changed. He said he did not contact the Department because he had no idea what to do.

25. The applicant told the Tribunal he requested a deferral of his semester 2, 2017 study. He went to the Student Centre at ECU and applied for a deferral and a few weeks later he was informed that his request had been rejected.  Following the hearing the applicant provided four emails dated 11 August 2017, 17 August 2017 and 21 August 2017 with respect to an appointment he had with ECU. Three of the emails bore the heading “Appeal”. The emails did not refer to an application for deferment or the outcome of such an application.

26. In October 2017 the applicant received a Notice of Exclusion from ECU.  He sent a submission requesting permission to continue his study. He told the Tribunal that after several emails back and forth ECU advised him that a decision with respect to his request may take time and he would have to wait.

27. The Tribunal put the to the applicant that when he was sent the Notice of Exclusion he was aware that he was no longer enrolled in a course of study and he did not notify the Department. The applicant said he did not take expert advice and had no idea what to do. He conceded he was aware that he wasn’t enrolled but said he was struggling to obtain money so that he could pay his fees.

28. The Tribunal put to the applicant that he prioritised payment to his employer for a visa for his sister over compliance with his visa conditions. He disagreed and said his employer had told him he would help him pay his fees.

29. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

30. The applicant told the Tribunal his purpose in coming to Australia was to obtain an Accounting degree and Accounting skills with a view to operating his own Information Technology (IT) business in Nepal. Several Google IT certificates were provided following the hearing.

31. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. 

32. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said he wants to obtain an Accounting degree for his parents and not for himself. The Tribunal does not consider this to be a compelling reason.

33. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

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

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

35. The applicant told the Tribunal his parents invested $20,000 in his school education and if he returns to Nepal without an Accounting degree they will be disappointed and they will suffer.

36. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to his parents however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

37. Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

38. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The Tribunal noted that more than seven months elapsed from the date the applicant’s enrolment was cancelled and the issuing of the NOICC. The applicant said he was not enrolled because he was unable to pay his fees.

39. The Tribunal considers that while the earthquake in Nepal in April 2015 was a matter beyond the applicant’s control, the circumstances in which the ground for cancellation arose were not. That is, the applicant’s decision to use his savings and to borrow money to pay his employer to sponsor his sister to Australia was his choice. The applicant did not prioritise payment of his course fees and his continued study in Australia.

40. The applicant was aware of his responsibility to comply with the conditions attached to his visa. He said he applied to defer his studies in August 2017. The evidence provided following the hearing did not refer to an application to defer his studies or the outcome of such an application. Whilst he may have applied for a deferral, the Tribunal is not satisfied that the matters submitted by the applicant justify his failure to maintain enrolment for seven months in breach of his visa conditions.

41. Accordingly the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

42. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

43. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    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

44. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

    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

45. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

46. The applicant is currently studying a Diploma of Business at Stott’s College. This course will lead to a Bachelor degree in Accounting. The Tribunal noted that the applicant successfully completed a Diploma of Business in 2015. Following the hearing the Tribunal was provided with a written undertaking from the Practice Manager of Business Mantra that the company is willing to guarantee to pay the applicant’s tuition fees for his Bachelor of Accounting degree with Stott’s College and if he is granted work rights in Australia, the company would be willing to employ him.  

1. Following the hearing the Tribunal received a further written submission from the applicant’s representative. The submission said the applicant had been overwhelmed by his circumstances and referred to his mental health issues which made him unable to act in a manner which would have been better for him in the long term. In his response to the NOICC the applicant referred to suffering mental stress from the losses he had experienced. No medical evidence was provided to substantiate that the applicant experienced any mental health issues prior to the cancellation of his enrolment.

2. The Tribunal noted that following the earthquake the applicant was able to undertake study in semester 2, 2015. He was able to request and obtain a deferral in semester 1, 2016. He was able to undertake study in semester 2, 2016 and semester 1, 2017. The applicant was able to maintain employment for at least 12 months prior to cancellation of his enrolment. His evidence was that he worked for 12 months without pay. Whilst continued study and employment do not necessarily mean the applicant did not suffer mental health issues, the Tribunal considers it unlikely he would have been able to maintain study and work over an extended period if he was experiencing serious mental health issues.

3. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

   Conclusion

4. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which is visa was granted.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

5. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Christine Kannis
   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.