Saroj (Migration)

[2020] AATA 1903

Saroj (Migration) [2020] AATA 1903 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dahal Saroj

CASE NUMBER:  1905905

HOME AFFAIRS REFERENCE(S):          BCC2018/5317133

MEMBER:Wendy Banfield

DATE:21 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2020 at 11:43am                   

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) –not enrolled in registered course – difficulties with college and payment of fees – college closed then re-established under another name – mother’s health – difficulties with accommodation – education and work history and goals – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 March 2019 made by a delegate of the Minister for Home Affairs 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 maintained enrolment in a course of study. 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 23 years old. He came to Australia on 3 March 2016 to study courses in business. He held a student visa that was valid until 3 May 2019. Although the applicant began his studies, he did not maintain enrolment as required by the conditions of his visa.

4. The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments. The Tribunal considered the applicant’s written statement dated 22 January 2019 provided to the Department in making this decision as well as the applicant’s in-person evidence to the Tribunal.

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

   The hearing

6. The applicant advised he first came to Australia on 3 March 2016 to study a Certificate, Diploma and Advanced Diploma of Business. He said he had also planned to undertake a bachelor’s degree. The applicant advised he started the course but after six months he had to pay more fees which was difficult. He then said he finished the certificate course but approached the college about wanting to study something else, but he was not given a release letter. The applicant advised he was working as a chef at the time and enjoyed the work.  The applicant explained his issues with the college he was attending which included poor record keeping and teaching. He said he was transferred to another college associated with his original provider.

7. First the applicant found the college to be acceptable, but he discussed having to pay the fees, which he said he was prepared to do since he had work rights. The applicant alleged that later the college was quite empty with minimal staff and no students in attendance. The Tribunal asked the applicant if he could have transferred to a different provider, but he said he needed a release to be able to do that. The applicant stressed his desire to study but his view that the colleges are motivated by profit.

8. The applicant said he began a Diploma of Business, but the college was closed before he was able to finish. He said he had paid the fees and then found out the college had changed its name in order to re-establish themselves. He claimed when he went to the premises and asked about his previous college, the staff said they did not know. The Tribunal explained to the applicant that while he may have had some difficulties with his education provider, it was his responsibility to maintain enrolment and according to the Department, he had not been enrolled for a significant period, from April 2018 to March 2019. The applicant said after he completed a diploma, he found out his mother was unwell and he travelled to Nepal in January 2018, returning to Australia in March 2018.

9. After the applicant returned to Australia, he said the college was closed. He then discussed difficulties he had with the family he was living with, including physical assault, that led him to leave his accommodation. He said after that he had no accommodation or job and had overdrawn finances. The Tribunal asked the applicant if he considered deferring his studies and returning to Nepal until his circumstances improved. The applicant then referred to the trip he took in January 2018. He said after that he stayed at home, studied on his own and tried to get work. The Tribunal put to the applicant that nevertheless, he was not enrolled as required by the terms of his visa and he agreed that was the case. The applicant continued to explain the difficulties he claims disrupted his study plans. When it was put to the applicant again that he should not have remained in Australia without complying with visa conditions the applicant said he could not afford the flight home. He added he could not face his parents again in those circumstances.

10. Regarding a compelling need to remain in Australia, the applicant referred to a lack of educational opportunities in Nepal. The applicant then advised he is working as a sole trader doing cleaning and wants to provide sanitation services. He was asked if he still plans to study and after some hesitation, the applicant said he does want to study and also work legally. The Tribunal reminded the applicant a student visa is not for work purposes and he agreed. However, he continued to talk about his work providing cleaning services.

11. The applicant was asked about any hardship resulting from visa cancellation. After some explanation by the Tribunal the applicant gave a “stream of consciousness” type response that included a reference to the end of his dreams but also to aspects of his work life. The applicant agreed a student visa was not suitable for his work-related aspirations and then described his experiences working in a kitchen. He said if he studies again, he would be interested in disability services. The applicant concluded by saying he is hopeful of a positive outcome in his case.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. 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).

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

15. In the present case, the applicant’s visa was cancelled on the basis he was not enrolled in a registered course of study from 23 April 2018 to 7 March 2019. The Department issued a Notice of Intention to Consider Cancellation (NOICC) on 16 January 2019. The applicant responded to the NOICC and provided reasons why he had not maintained enrolment for the period identified. He did not dispute there were valid grounds to cancel his visa. During the hearing the applicant was asked whether he agreed there were grounds to cancel his visa and he confirmed he did breach visa conditions.

16. 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

17. 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’.

    ·     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

18. The applicant travelled to Australia to study certificate and diploma courses in business leading to a bachelor’s degree. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. However, at the Tribunal hearing the applicant discussed his current work as an independent cleaning contractor, his previous employment in a kitchen and his desire to continue working in Australia. It appears his purpose has since changed to a focus on employment rather than his education and this weighs against the applicant in considering whether his visa should be cancelled.

19. During the Tribunal hearing the applicant was invited to make submissions regarding his any compelling need to remain in Australia. Other than referring generally to a lack of educational opportunities in Nepal and his desire to work in Australia, the applicant did not provide a response. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

20. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

21. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant claimed visa cancellation would mean the end of his dreams. He had given evidence during the hearing and in his written submission that he experienced psychological and emotional difficulties in Australia due to issues with his education provider and his poor treatment by housemates. Although the applicant did not provide evidence of a specific mental health condition, the Tribunal accepts he may have had to deal with some stressful situations. Since he will be unable to continue studying, the cancellation of his visa will cause some degree of hardship and the Tribunal places some weight in his favour in this regard.

22. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     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

23. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for approximately 10 months. The applicant’s stated reasons for the study gap were that his education provider was below standard and did not provide the facilities and teaching that had been expected. The applicant said he was unable to obtain a release to enrol elsewhere, he was transferred to another college under the same ownership and it eventually closed. The applicant returned to Nepal to be with his mother in early 2018 and on his return, he was forced to leave his accommodation which left him in great difficulty without a job or finances. According to the applicant’s written and oral evidence, his situation eventually stabilised, and he undertook to study on his own. In his written statement to the Department the applicant said, “After staying six months on my own feet I learn a new way to response the life”. The applicant undertook in his statement that he would recommence his studies.

24. During the Tribunal hearing the applicant was asked several times why he did not defer his studies and return to Nepal if he was unable to support himself or continue his education. He did not provide a specific response but made generalised statements about not being able to face his parents in such circumstances. The applicant did not explain why he did not re-enrol to study after getting back on his feet but talked at length about working in Australia which included in a restaurant and as a cleaning contractor. The applicant’s discourse on this topic included his wish to provide services to Australia and contribute to society. It appeared to the Tribunal that the applicant’s main focus is on working in Australia rather than studying and the applicant agreed a student visa is not suitable for this purpose.

25. The Tribunal sympathises with the applicant regarding his personal problems; in particular, issues he allegedly had with his education provider. Nevertheless, the applicant’s response to these matters, such as deferring his studies, was within his control. Although they may have been stressful events, they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa and failing to study over a long period of time.  

26. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

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

27. 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

28. 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

29. 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 to not 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

30. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

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

    ·     any other relevant matters

32. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

33. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that most considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

35. 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.