Rumba Lama (Migration)

[2020] AATA 2304

Rumba Lama (Migration) [2020] AATA 2304 (23 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lahi Dorje Rumba Lama

CASE NUMBER:  1934142

HOME AFFAIRS REFERENCE(S):          BCC2019/3329044

MEMBER:Amanda Pearson

DATE:23 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 23 March 2020 at 8:41pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher level course ceased – college could not provide a place – limited academic progress – applicant changed to vocational courses – plans to start a business in Nepal – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Migration Act 1958 on the basis that the applicant has not complied with a condition of his student 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.

3. The applicant appeared before the Tribunal on 23 January 2020 to give evidence and present arguments.

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

5. 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

1. 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) of the Migration Act 1958. 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.

Does the ground for cancellation exist?

1. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance the applicant has not complied with subclause (2)(b) of condition 8202 attached to the applicant’s visa . This condition requires (in part):

   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

[..]

(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.

1. The applicant is not a Defence, Foreign Affairs or Secondary Exchange student and therefore is not covered by subclause (1): therefore, subclause (2) applies to the applicant. Paragraph 2(b) states that the applicant 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.

2. The applicant’s student visa was granted in relation to a Bachelor of Tourism and Hospitality Management at the Academies Australia from 13 November 2017 to 10 July 2020. The highest Confirmation of Enrolment (‘CoE’) in relation to which the visa was granted was a Bachelor of Tourism and Hospitality Management which, once completed, would provide a level 7 (Bachelor Degree) qualification from the Australian Qualifications Framework (AQF).  Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicates that on 9 November 2017 the applicant’s enrolment in the Bachelor course was cancelled by the education provider.  On 10 November 2018, the applicant obtained a Diploma of Leadership and Management through Lead College Pty Ltd.  This enrolment is at ACF Level 5 (Diploma). The applicant is also currently completing a Certificate III in Commercial Cookery at the Paramatta Institute. This enrolment is at ACF Level 3 (Certificate III). As the applicant has not been enrolled in a course at the AQF Level 9 (Master Degree) or Level 10 (Doctorate Degree), the circumstances of clause 8202(3) do not apply to the applicant.

3. On this basis, the applicant has not complied with subclause(2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the applicant’s student visa was granted.

4. 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 the visa should be cancelled.

Consideration of discretion

1. 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’.

2. On 23 January 2020, the applicant provided the Tribunal with the following documents to support his case:

   a.   the applicant’s Diploma of Leadership and Management from the Clarendon Business College dated 23 November 2018;

   b.   an academic transcript for the applicant in relation to the Diploma of Leadership and Management course that the applicant completed at the Clarendon Business College; and

   c.   an email exchange between the applicant and the Department of Home Affairs dated 27 November 2019 in respect to the cancellation of the applicant’s student visa.

   Background evidence taken at hearing

3. The applicant arrived in Australia in June-July 2017.  He was born in Nepal on 3 May 1999 and is 20 years of age.  He is single and does not have any children.

4. In relation to his family background, the applicant informed the Tribunal that his parents live in Hetauda, Nepal. His father is a businessman importing and exporting oil and his mother is a housewife. He has a sister who is studying nursing management in Nepal. 

5. The applicant is currently living in Sydney and has no family residing in Australia. 

6. The applicant explained to the Tribunal that he came to Australia from Nepal to gain an overseas higher education qualification. The applicant confirmed with the Tribunal that he initially came to Australia for the purpose of undertaking a Bachelor of Tourism and Hospitality Management course at the AMI Education Australia from 13 November 2017 to 10 July 2020. He stated to the Tribunal that he did not complete this course because the institution could not provide him a place at the time. 

7. He told the Tribunal that AMI Education Australia recommended that he complete a Diploma of Leadership and Management and then re-enrol into the Bachelor degree.  The applicant was awarded his Diploma of Leadership and Management on 23 November 2018 at the Clarendon Business College.

8. After completing the Diploma course, the applicant enrolled into the Bachelor of Tourism and Hospitality Management course at the same college. He claimed that whilst he commenced this course, he failed one subject.  Accordingly, he decided that he did not wish to pursue hospitality management. He stated that he was more inclined to pursue kitchen related jobs such as cookery.  He stated that his interest in cookery culminated in him wanting to become a chef.

9. The applicant testified that he is currently completing a Certificate III in Commercial Cookery at the Paramatta Institute. He commenced this course in August 2019 and anticipates completing this course by 10 May 2020.  He also told the Tribunal that after completing such course he wishes to complete a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at the same institution.

10. The applicant’s dream is to open his own restaurant in Nepal.

    
    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

11. The applicant explained in the hearing that he wanted to have a good education which would set him up in Nepal and make his family proud as they wanted him to come to Australia to obtain an overseas higher education qualification. He told the Tribunal that if his visa was cancelled, that it would be very difficult for him because his dream of opening a restaurant in Nepal would not be fulfilled.

12. The Tribunal gives some weight to the applicant’s stress and pressure he may feel if he has to return to Nepal. The Tribunal appreciates the significance of obtaining a student visa for the applicant and his family, but it does not operate to ameliorate the applicant for a lack of completing at least a Bachelor degree in Australia together with prioritising his Bachelor studies and focusing on completing the same in Australia.

The extent of compliance with visa conditions

1. The applicant has stated that he has complied with all other conditions on his visa.  There is nothing before the Tribunal to indicate that this is not the case.

2. The Tribunal gives some weight in favour of the applicant by not cancelling the student visa, however, it remains mindful that it is expected that all visa holders adhere to the conditions on their visa.

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

1. The applicant explained that if his visa is cancelled, then it will cause him considerable disappointment because his dream to open a restaurant in Nepal will be destroyed. He stated that if his visa is cancelled and he cannot study then this will disappoint his family as his future will be ruined if he is not able to study in Australia.

2. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

3. The Tribunal also accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing.  However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of not completing the appropriate qualification that the applicant was required to complete in Australia, that being a Bachelor Degree or higher degree and not a Certificate III, IV and or Diploma level course.  It is not appropriate for the applicant to get the benefit of relying on a student visa for the purpose of obtaining a qualification that does not meet the conditions of his student visa.  It is also not satisfactory for the applicant to decide upon what qualifications he should obtain albeit even when stating to the Tribunal that he could not initially complete a Bachelor course.  Whilst appreciating the hardship the applicant and his Nepalese family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

Circumstances in which the ground of the cancellation arose

1. The applicant told the Tribunal that he did not complete his Bachelor of Tourism and Hospitality Management at the AMI Education Australia because the institution could not provide him a place when he wanted to commence these studies. Given the shortage of places, the applicant testified that AMI Education Australia recommended that he complete a Diploma of Leadership and Management and then re-enrol into the Bachelor degree.  The applicant was awarded his Diploma of Leadership and Management on 23 November 2018 at the Clarendon Business College.

2. The applicant since being awarded his Diploma of Leadership and Management has not completed a Bachelor course.  Rather, he commenced in August 2019, a Certificate III in Commercial Cookery at the Paramatta Institute. The applicant anticipates completing this course by 10 May 2020.  He also told the Tribunal that after completing such course, he wishes to complete a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at the same institution.

3. The applicant, by his own volition, has no intention to ever complete a Bachelor course or higher qualification in Australia.

4. The Tribunal acknowledges that the applicant has stated he wishes to continue with his studies in Australia.  However, the applicant has not completed a Bachelor course or a higher qualification (Master or Doctorate course) in Australia and does not intend to complete such courses in Australia if he is permitted to stay in Australia albeit knowing this is a condition of his student visa. The Tribunal does not accept this equates to a compelling need to remain in Australia. The Tribunal accepts that circumstances beyond the applicant’s control may have caused the applicant to initially, not complete a Bachelor of Tourism and Hospitality Management.  Yet, the applicant is fully aware that it is a condition of his student visa to complete a Bachelor course or a higher qualification in Australia.  The Applicant has not provided any reason to the Tribunal as to why he does not intend to complete such a course in Australia in order to comply with his student visa.  Student visas are granted for the purposes of studying and achieving a qualification in accordance with the conditions of the visa.  Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given some weight, but not sufficient weight, to outweigh the reasons for cancelling the visa because of the seriousness of the breach. 

Past and present behaviour of the visa holder towards the Department

1. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

   
   
   

Whether there would be consequential cancellations under s.140

1. This is not relevant to the applicant.

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

1. In the event that the applicant’s visa is cancelled, he would need to obtain a bridging visa to ensure he is lawful until he makes arrangements for his departure. The applicant could also seek migration advice.

2. The Tribunal appreciates that the applicant would face a three year exclusion period and would need to ensure his immigration status was lawful, however these are natural consequences of a cancellation and as such, the Tribunal gives minimal weight in favour of the applicant.

Australia’s international obligations

1. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations.  The Tribunal places no weight on this in favour of the applicant.

   
   
   

Any other relevant matters

1. This is not relevant to the applicant.

2. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s student visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Amanda Pearson
Member