Shrestha (Migration)

[2020] AATA 3406

Shrestha (Migration) [2020] AATA 3406 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagan Shrestha

CASE NUMBER:  1924732

HOME AFFAIRS REFERENCE(S):          BCC2019/2603310

MEMBER:Vanessa Plain

DATE:26 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 June 2020 at 6:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – non-payment of fees – applicant changed to vocational courses – limited academic progress – college cancelled enrolments – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 119
Migration Regulations 1994, rr 1.40, 2.43; Schedule 2, cls 573.223, 231; Schedule 8, Conditions 8202, 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) of the Act on the basis that the applicant is not, or is not likely to be, a genuine student. 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 19 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

6. 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 grounds set out in s.116(1)(fa)(i) of the Act.

7. 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?

8. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

   Particulars of the ground for cancellation

10. Information before the Department appeared to indicate that the applicant has not been or is likely not to be, a genuine student. Student visas are granted for the purpose of studying towards, and obtaining an educational qualification in Australia. A student visa holder may be considered not to be a genuine student if it appears that their primary intention is not, or is likely not to be, to undertake study in Australia.

11. The applicant’s visa was granted on 28 June 2016 for the purpose of undertaking a study pathway which, once complete, would provide him with a qualification at the Bachelor level. At time of grant of his student visa, the applicant held Confirmations of Enrolment (CoE) for the following courses at RMIT University:

    ·Foundation Studies (Science, Engineering & Health Stream)

    ·Bachelor of Applied Science (Medical Radiations)

12. The applicant arrived in Australia on 30 June 2016, however on 22 December 2016 their enrolment in the Foundation studies course was cancelled due to non-payment of fees, effective from 30 November 2016.  Consequently, the applicant’s enrollment in the Bachelor of Applied Science was cancelled on 06 December 2016.

13. The Department has access to the Provider Registration and International Student Management System (PRISMS) which contains the enrolment and study records of overseas students in Australia.  The Delegate’s decision records sets out in significant detail the subsequent enrolments in courses obtained by the applicant for various study pathways.  Those courses are set out as follows:

    87A4BB66     Bachelor of Networking           Melb Institute of Tech   15/12/2016 20/2/18

96FC4A51	Certificate IV in Commercial	Choice Business College	05/02/2018	15/07/2018
96FC6663	Cookery Diploma of Hospitality Management	Pty Ltd Choice Business College Pty Ltd	05/02/2018	15/07/2018
9B2AD263	Certificate III in Commercial Cookery	Academies Australasia Polytechnic Pty Limited	29/05/2018	07/08/2018
9B2AFA84	Certificate IV in Commercial	Academies Australasia	29/05/2018	07/08/2018
9B2B0216	Cookery	Polytechnic Pty Limited	29/05/2018	07/08/2018
9B2B0961	Diploma of Hospitality Management Bachelor of Tourism and Hospitality Management	Academies Australasia Polytechnic Pty Limited Academies Australasia Polytechnic Pty Limited	29/05/2018	07/08/2018

AC012118   Certificate III in Cookery     Acknowledge Education 15/07/2019 12/07/2020           

AC013631	Certificate IV in Commercial Cookery	Acknowledge Education Pty Ltd	13/07/2020	12/01/2021
AC013B25	Diploma of Hospitality Management	Acknowledge Education Pty Ltd	25/01/2021	25/07/2021
AC014265	Bachelor of Business	Acknowledge Education Pty Ltd	26/07/2021	30/06/2020

1. The applicant has not completed any of the above mentioned courses and between 7 August 2018 and 10 July 2019, was not enrolled in a registered course at all. 

2. Based upon the above information, the Delegate for the Minister formed the following view, as set out in the Decision record (verbatim):

   ·‘The visa holder has not maintained the educational pathway for which the visa was granted and they have not meaningfully pursued any alternate pathway that would enable them to achieve an equivalent educational qualification. This appears to indicate the visa holder does not have a genuine intention to study at the Bachelor level.’

   ·‘At date of NOICC the visa holder held the student visa for over 36 months. PRISMS indicates that during that period the visa holder held valid enrolments for a total of 28 months; however, the total period of the visa holder actually studying is only 20 months. It therefore appears that the visa holder has consistently failed to meaningfully participate in courses since the grant of their visa.’

   ·‘The visa holder’s enrolments have repeatedly been cancelled for non-payment of fees, leaving the education provider and failure to commence. In the 36 months since the visa was granted it appears that the visa holder has failed to complete a single course of study. This is not consistent with the Department’s expectations of a student visa holder.’

   ·‘The visa holder’s significant lack of academic progress and consistent failure to participate in courses appears to indicate that their primary intention is not, or is likely not to be, to undertake study. Despite repeatedly obtaining new enrolments, the visa holder has not made meaningful progress towards achieving a qualification at the level for which the visa was granted. It appears the visa holder is obtaining enrolments as a means to retain the student visa rather than because they have a genuine intention study; therefore, it appears their primary intention is not, or is likely not to be, to undertake study.’

3. Based on this information, there appeared to be grounds for cancelling the applicant’s visa under s 116(1)(aa)(i) of the Act because it appeared that the applicant was not, or was not likely to be, a genuine student

4. On 18 July 2019 the applicant was sent a Notice of Intention to Consider Cancellation of visa (NOICC).  He responded in writing on 22 July 2019, seeking an extension of time to respond to the NOICC.  An extension was granted until 1 August 2019, however, the applicant did not respond by 1 August 2019, or at all.

5. At the hearing, the applicant stated that he did not respond to the NOICC after seeking advice from a migration agent, who informed him that it was not worth responding to the NOICC.

6. At the hearing, the Tribunal informed the applicant that his study history (as set out above) of never completing a course and changing courses to the extent he has, suggests he isn’t a genuine student.  The Tribunal asked the applicant whether he wished to comment or respond to that observation.  The applicant stated, “No, not really.”

7. Based upon the matters set out above and particularly in view of the applicant’s evidence in paragraph 19 hereof, the Tribunal is satisfied that the ground for cancellation in s.116(1)(aa)(i) of the Act exists and that the applicant’s primary intention is not, or is not likely to be to undertake study, and therefore, the applicant is not is not, or not likely to be, a genuine student.

8. 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

9. 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’.

10. In view of the applicant’s evidence at paragraph 19 hereof, the Tribunal asked the applicant a series of questions.  The Tribunal’s questions and the applicant’s evidence is summarised as follows:

    ·The Tribunal asked why the applicant was not enrolled at all between 7 August 2018 and 10 July 2019.  The applicant stated that he was not getting financial help from his family in Nepal and he was lonely in Australia.  He found a job in Australia and he was not working more than 20 hours per week.  He came from a small background in Nepal and RMIT was huge for him, so he got a job in cookery and so became interested to study that.

    ·The Tribunal asked whether CoEs were cancelled for non payment of fees and the applicant states that they were because he was having financial difficulties.

    ·The Tribunal asked the applicant why did he didn’t simply just return to his home country, rather than not complete all his courses.  The applicant stated that this was due to the dreams of his parents and that he wanted to study.  He said that an education consultant told him he could study but that if he couldn’t get a visa he would have to return home.  He said further that if there’s a chance to study again, he would like to and he realizes his mistake.

    ·The Tribunal asked the applicant whether he’d suffer any hardship if his visa was cancelled.  The applicant stated he will suffer hardship because his girlfriend is in Australia and they are planning on moving back to Nepal or Canada, she’s doing nursing studies at the moment.  He also stated that have lost their business due to COVID-19. 

    ·The Tribunal stated to the applicant, “Is it correct that you don’t really have an explanation for why you haven’t completed a single course in the past?  The applicant stated, “Yeah.”

    Purpose of applicant’s travel to and stay in Australia

11. The applicant has not completed any registered courses since his visa was granted on 26 June 2016.

12. The applicant’s enrolments have repeatedly been cancelled for non-payment of fees, failure to commence or leaving the education provider entirely.  During the period from 07 August 2018 and 10 July 2019 the applicant did not hold an enrolment to undertake any studies in Australia at all and based upon his evidence as set out above, he did not, at any material time, have a reasonable excuse for his non-enrolment.

13. The applicant’s significant lack of academic progress coupled with his admission in the final subparagraph of paragraph 23 hereof fortified the Tribunal in its view that the applicant’s primary intention is not, or is likely not to be, to undertake study in Australia. 

14. The Tribunal affords this consideration weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

15. The applicant’s Student visa was granted with condition 8202(2)(a) attached.  He did not hold an enrolment from 07 August 2018 to 10 July 2019. He therefore did not comply with subclause 8202(2)(a) of condition 8202 for eleven months, for which he did not have an explanation as set out above, that suggests there were compelling reasons for the breach that were beyond his control.  The Tribunal considers the period of non compliance to be substantial. 

16. Further, the Delegate in the decision record made the following observation, set out below (verbatim):

    ‘The visa holder’s Student visa was granted with condition 8516 attached, which states that the visa holder must continue to satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. The Student visa was granted for study in a principal course of a Bachelor of Networking. The visa holder’s enrolment in this course was cancelled on 20 February 2018, and he did not hold a valid CoE in a bachelor level course until 10 July 2019, a period of approximately one year and four months. During this time he was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A. Therefore, during this time, he did not continue to be a person who would satisfy either subclause 573.231 or 573.223(1A), and consequently did not continue to satisfy the primary criteria for the grant of the visa. Therefore, he did not comply with condition 8516.

17. The aforementioned conditions are crucial to the grant of a student visa and the Tribunal is of the view that the applicant’s non compliance is substantial and not due to extenuating circumstances that were beyond the control of the applicant.

18. The Tribunal gives this consideration some weight against cancelling the applicant’s visa.

    The degree of hardship that may be caused to the visa holder and any family members

19. The applicant informed the Tribunal that desires to remain in Australia for the purpose of undertaking study again and that he will suffer some hardship on account of being separated from his girlfriend. 

20. The Tribunal cannot be satisfied that the applicant truly wishes to undertake further study in Australia, based on the evidence set out above.  The Tribunal further notes that the applicant did not give any evidence to the effect that he was trying to enroll in any courses presently.

21. The Tribunal acknowledges the applicant will likely suffer some hardship if he is separated from his girlfriend, however the Tribunal notes that there is no evidence before it of any family members of the applicant in Australia who will be adversely affected by the cancellation of the applicant’s visa. 

22. The Tribunal acknowledges the applicant’s statement that his parents business has been lost due to COVID-19.  That tragedy is, however, unrelated to the applicant’s studies in Australia. 

23. The Tribunal acknowledge that the applicant will suffer some hardship and gives this consideration some minor weight against cancelling the visa. 

    The circumstances in which the ground for cancellation arose

24. The grounds for cancellation arose when the applicant remained in Australia for an extended period of time without studying or demonstrating a pathway to an educational qualification, and lack of academic progress, indicating that they are not a genuine student. 

25. The Tribunal informed the applicant that his study history (as set out above) of never completing a course and changing courses to the extent he has, suggests he isn’t a genuine student.  The Tribunal asked the applicant whether he wished to comment or respond to that observation.  The applicant stated, “No, not really.”

26. The Tribunal further stated to the applicant, “Is it correct that you don’t really have an explanation for why you haven’t completed a single course in the past?  The applicant stated, “Yeah.”

27. Based on the applicant’s evidence, the Tribunal finds there are no extenuating circumstances beyond the control of the applicant that led to the grounds for cancellation arising.

28. The Tribunal affords this consideration significant weight in favour of cancelling the visa holder’s

    The visa holder’s past and present behaviour towards the Department

29. The applicant did not substantively respond to the NOICC.  There is otherwise no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.

30. The Tribunal gives this consideration very minor weight against cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s140

31. The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act.  The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.

    Legal consequences of a decision to cancel the visa

32. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia.  The applcaint would also be affected by Public Interest Criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future

33. However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not due to extenuating circumstances beyond the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa.

    Australia’s international obligations

34. There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.

    Any other relevant matters

35. There are no other relevant matters to take into consideration.  

36. It is clear based on all the evidence set out above, that the reason for the breach of the visa condition was not due to extenuating circumstances beyond the control of the applicant. 

37. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Vanessa Plain
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.