Shahi (Migration)

[2019] AATA 5656

Shahi (Migration) [2019] AATA 5656 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Suraj Shahi

CASE NUMBER:  1902197

HOME AFFAIRS REFERENCE(S):     BCC2018/5016212

MEMBERS:Dr Jason Harkess

DATE:19 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 19 August 2019 at 3:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Hotel Management – not enrolled in registered course for lengthy period – enrolment cancelled by provider – unsatisfactory progress – financial difficulties – illness in family – emotional turmoil – positive steps to improve situation not taken – lack of evidence – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

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 22 January 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 on 13 January 2017 with an original expiry date of 8 August 2019, providing for more than 2 years 6 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. The visa was granted on the basis that he was enrolled in and would successfully complete a Bachelor of Business in Hotel Management followed by a Master of International Tourism and Hotel Management at Southern Cross University.

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.

5. The Applicant appeared before the Tribunal on 30 July 2019 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 Primary 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?

1. Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course of study. In the delegate’s decision record, the delegate identified the period from 19 January 2018 to 22 January 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.

2. The delegate’s finding in this respect 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 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].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider, Southern Cross University, cancelled the Applicant’s enrolment in both the Bachelor of Tourism & Hospitality and Master of International Tourism and Hotel Management on 19 January 2018 due to unsatisfactory progress and non-commencement of studies.

4. The Department of Home Affairs (‘the Department’) wrote to the Applicant on 5 December 2018, 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.

5. The Applicant responded to the NOICC by email on 2 January 2019. In that email, the Applicant implicitly conceded that he was in breach of his student visa. He did not dispute the allegation that he had not been enrolled in a registered course of study for the period alleged by the delegate. At the hearing before the Tribunal, the Applicant also conceded he was in breach of his visa for not being enrolled.

6. Accordingly, on the material available, the Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of his student visa for the period of time that was alleged.

Consideration of Discretion to Cancel Visa

1. 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 the 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

1. In his email of 2 January 2019 to the Department, the Applicant sought to explain the circumstances giving rise to his lengthy period of non-enrolment. The Applicant referred to how he had originally arrived in Australia in February 2017, having been just granted his student visa. He stated that he completed his first semester of studies in the Bachelor’s course and passed all but one of the units that he was studying. He then progressed to the second semester, which took place in the second half of 2017.

2. In the second semester of 2017, the Applicant stated that he found out that his mother, who lives in his home country of Nepal, was very ill. She had, according to the Applicant, been suffering from a variety of medical conditions for several years. Complications arose from these conditions and medications that she was taking. As a result, the Applicant said that he was not able to focus on anything. Discovery of his mother’s deteriorating condition coincided with end-of-semester exams. The Applicant stated that he could not concentrate on his on-going study obligations because he was preoccupied with his mother’s ill health. His exam performance suffered as a consequence.

3. The Applicant provided substantial material in support of his claim that his mother’s health was suffering significantly to the Department. The Tribunal accepts that his mother had the conditions as described and that her health would certainly have had an effect on him while he was in Australia away from her.

4. In his email response to the NOICC, the Applicant also referred to financial difficulties that arose that made it difficult for him to pay his tuition fees as they fell due. He referred to both the increased financial pressure placed on his family as a result of his mother’s increased medical costs, as well as the fact that his father’s business suffered financially due to his father focusing on his mother’s care instead of dealing with the business. The Applicant was financially dependent on his parents while he lived in Australia. He said that he felt he could not ask his father for any kind of financial help for his tuition fees and so discontinued his studies even though he ‘sincerely wanted to study’.

5. The Applicant further stated in his NOICC response that he kept his cessation of studies hidden from his family for some time. While living in Australia, he stayed with his brother who is now an Australian citizen and permanent resident. His brother was evidently not even aware that he was not attending classes throughout most of 2018. However, the Applicant’s brother eventually found out about his cessation of his studies in October 2018, at which point the Applicant confessed everything to his family, including to his father who was in Nepal. The Applicant stated that he was very ashamed of his conduct because his family had such high expectations of him with respect to his studies in Australia.

6. At the hearing before the Tribunal, the Applicant largely reiterated the circumstances giving rise to the breach of Condition 8202 of his visa that have been summarised above. From his evidence given before the Tribunal, it seemed clear that the Applicant went to some lengths to hide the fact that he had stopped studying from his family. This must have been a particularly difficult exercise given that he was living with his older brother who believed that he was continuing to study while he was living with him. The Applicant admitted to working for a substantial part of 2018 when he was supposed to be studying. He said that he was working approximately 16 hours per week, as a hotel house attendant, at least until August 2018. He said that in August 2018 he stopped working altogether because he felt depressed. The Applicant admitted receiving his final invoices from Southern Cross University and not paying them. It is evident that he had made a conscious decision to stop studying in Australia for a significant proportion of his visa grant period.

7. While the Tribunal accepts his evidence relating to his mother’s medical problems, which inevitably had consequential effects on the family finances and the Applicant’s emotional well-being, it does not accept this evidence as providing a foundation for the Applicant being excused from complying with his student visa conditions. Sickness of family members are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

8. In such circumstances, registered course providers and the Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. He neither contacted staff at his course provider, nor staff at the Department, to inform them of any personal difficulties he may have been having. The first occasion on which the Applicant raised his concerns was in response to the Department’s NOICC, which was issued after the Applicant had been disengaged from his study obligations for almost a year.

9. There is no psychological evidence, beyond the evidence of the Applicant himself, that provides an adequate account of his mental state at the time. He has said that he was ‘depressed’. However, there is no material before the Tribunal suggesting that the Applicant was suffering a clinically diagnosable chronic mental health condition throughout, or for any part of, 2018. Accordingly, the Tribunal can do no more than place his claims of suffering into the general category of suffering that ordinary people endure on a day to day basis in dealing with life’s stressors.

10. Indeed, the Tribunal has much difficulty in accepting that the Applicant was suffering any kind of significant mental health concern that was truly instrumental in his decision to cease his studies altogether. Such claims seem rather dubious having regard to the fact that he made no attempt to alert his course provider or the Department to his issues, made deliberate efforts to conceal from his family the fact that he had ceased studying, and for much of that time he continued to work. It seems the more likely explanation is that he simply lost interest in studying and decided to re-direct his financial resources to pursuits he wanted to prioritise ahead of his study obligations.

11. In the Tribunal’s view, the situation that has given rise to the breach of Condition 8202 of the Applicant’s cannot be regarded as extenuating nor beyond the Applicant’s control. It is a situation that has largely arisen from his own choosing.

Purpose of Applicant’s Stay in Australia

1. 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. That purpose was effectively defeated when the Applicant ceased studying. The Applicant has virtually nothing to show by way of academic achievements during the visa period.

2. The Applicant stated in evidence that he wishes to continue with studying in Australia so that he can return to his home country with an Australian qualification. To this end, he produced evidence showing that, following disclosure of his cessation of studies to his family in 2018, he made efforts to re-enrol in another course. He produced a letter of offer from TasCollege dated 25 November 2018 providing a place for him in a Graduate Diploma of Management (Learning) course that was to commence in early February 2019. Certainly, this would appear to be a demonstrated attempt by the Applicant to re-engage as a student in Australia. The Tribunal has taken into account that this attempt and re-engagement was made before he was given formal notice by the Department of its intention to consider cancelling his visa. However, in the Tribunal’s view, it does not alleviate the Tribunal’s significant concern relating to no satisfactory explanation being provided for the Applicant’s cessation of studies.

3. There is no compelling need for the Applicant to remain in Australia. By their nature, student visas are meant to provide non-Australian citizens with temporary residence only. If the Applicant’s visa had been left to operate, without being cancelled, it would have now expired. The Applicant was afforded a significant amount of time to spend in Australia for the purposes of full-time study to obtain two higher-education qualifications. In the Tribunal’s view, that purpose has been fundamentally defeated by the Applicant’s own poor decision-making processes. It is appropriate that the student visa be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

1. While the Applicant referred to partial progress being made when he first commenced his studies, he produced no material that demonstrated any satisfactory academic progress at Southern Cross University. The Tribunal finds that the Applicant never made any realistic attempts to comply with the fundamental condition relating to his obligation to maintain satisfactory course progress. This is a significant factor that weighs in favour of cancelling his visa.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. His family will understandably be very disappointed.

2. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he has been here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition. It seems that he has fundamentally failed to utilise his student visa effectively for the purpose it was designed to serve.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. 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

1. 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. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Nepal and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

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

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member