SHRESTHA (Migration)

[2019] AATA 5435

SHRESTHA (Migration) [2019] AATA 5435 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sameer Shrestha

CASE NUMBER:  1729701

HOME AFFAIRS REFERENCE(S):          BCC2017/2937393

MEMBER:Frank Russo

DATE:25 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 November 2019 at 4:18pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-appearance before the Tribunal – reinstatement of application – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period of breach – financial situation – non-payment of fees – no exceptional circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
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 17 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) 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 was not enrolled in a registered course of study from 27 February 2017 until the date of the delegate’s decision, on 17 November 2017. 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 is a 33-year-old Nepalese national.

4. The application was invited to attend a hearing before the Tribunal on 29 October 2019. Following the non-appearance of the applicant at that hearing, the Tribunal dismissed the application under s.362B(1A) of the Migration Act 1958 on 29 October 2019. The applicant applied for reinstatement of the application on 30 October 2019, attaching a copy of a medical certificate dated 28 October 2019. On 1 November 2019, the Tribunal reinstated the application under s.362B(1C)(a).

5. The applicant appeared before the Tribunal on 20 November 2019 to give evidence and present arguments.

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

7. 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

8. 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.

9. In addition to his application form, the applicant provided the Tribunal with the following additional documents:

   a.Copy of notification of the delegate’s decision, dated 17 November 2017;

   b.Confirmation of Enrolment for the Master of Business Administration at Holmes Institute, created on 9 November 2016

   c.Interim Statement of Results for the Master of Business Administration, issued by Holmes Institute on 30 April 2018;

   d.Statement of Results for the Bachelor of Professional Accounting, issued by Holmes Institute on 18 November 2014, attached to letter of the same date, confirming the applicant has completed all requirements for this qualification; and

   e.Letter of King’s Own Institute (KOI), dated 27 April 2018, confirming the applicant was enrolled in the Master of Accounting program commencing on 16 March 2015 and left without completion on 6 November 2015.

10. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has regard to the documents contained within the Tribunal file and on the Department’s file.

11. The applicant confirmed at the hearing that he had read and understood the delegate’s decision.

    Did the applicant comply with Condition 8202?

12. 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 full time registered course: 8202(2)(a)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

14. The Tribunal notes that the delegate’s decision indicates the applicant had not been enrolled in a registered course of study since 27 February 2017.

15. The applicant gave evidence at the hearing that he arrived in Australia on 6 February 2008. He was first enrolled in a Commercial Cookery course at Windsor College, however after about one year this college was closed and he transferred to Evolution Institute, where he continued with a Commercial Cookery course for approximately three months. The applicant gave evidence that he was dissatisfied with his studies there and changed his course of study to Accounting. He gave evidence that he went on to complete a Bachelor of Professional Accounting at Holmes Institute in December 2014. The applicant provided the Tribunal with a letter and Statement of Results from Holmes Institute, which confirms he completed this degree.

16. The applicant told the Tribunal that following his completion of the Bachelor of Professional Accounting he applied for temporary residency through a Temporary Graduate visa, however his IELTS test score was not sufficiently high, so within the next six to seven months he applied to do a Master of Accounting at KOI in 2015. He stated that he did not like it at KOI and therefore moved back to Holmes Institute, where he enrolled in a Master of Business Administration.

17. The applicant told the Tribunal that he last studied at Holmes Institute in June 2016.

18. The Tribunal noted that according to the delegate’s decision the applicant had last been enrolled in a registered course of study on 27 February 2017. The applicant confirmed that this was the case, that his enrolment was cancelled by Holmes Institute for non-payment of fees, and that he has not enrolled in another course since this date.

19. The applicant confirmed that as he was not enrolled in a registered course of study after 27 February 2017, he understood and accepts there are grounds for the cancellation of his visa.

20. The Tribunal noted at the hearing that it has on file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database, but did not need to provide the applicant with a copy as the Tribunal considered the information contained in his PRISMS record is generally consistent with the account he gave of his enrolment history in his oral evidence, and the Tribunal does not rely on the information contained within this document.

21. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 27 February 2017 until the delegate’s decision on 17 November 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

22. 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

23. The applicant told the Tribunal that his original reasons for travelling to Australia were to finish his studies, to obtain more opportunities and to have a better life in Australia. In relation to his current purpose for remaining in Australia, he told the Tribunal that if he could continue with his studies he would. He gave evidence that if his Student visa is not cancelled he intends to continue to complete the Master of Business Administration at Holmes Institute.

24. The Tribunal questioned the applicant as to whether there was a reason why he has not enrolled to study again since his enrolment at Holmes Institute was cancelled on 27 February 2017. He stated that when he applied for the review of the delegate’s decision he thought that he would not be able to enrol. He stated that his agent at the time told him that he would have to wait for the Tribunal’s decision and didn’t say anything to him about enrolment. When asked what Bridging visa he holds, the applicant stated Bridging visa Class E. He confirmed that the conditions of his Bridging visa include no travel and a work limitation of 40 hours per fortnight. He stated that he could not remember whether there is a condition limiting his ability to study while holding his Bridging visa. He stated that he did not have a copy of his Bridging visa with him.

25. The Department’s file does not contain a copy of the applicant’s Bridging visa, however the Tribunal notes that the applicant’s movement record records the following conditions associated with the grant of a Bridging visa on 2 May 2018: 8104 (work limitation). 8506 (notify Department of change of address) and 8207 (The holder must not engage in any studies or training in Australia). The Tribunal therefore accepts that the applicant’s Bridging visa contains a condition prohibiting study. The Tribunal therefore makes no adverse findings based on the applicant remaining un-enrolled in a registered course after 17 November 2017.

26. In submissions, the applicant’s agent submitted that the applicant had been given wrong information and advice in relation to his visa at the time it was cancelled, and that if he is given an opportunity to complete his course he will now do so.

27. The Tribunal accepts that the purpose for the applicant’s travel to and stay in Australia is to study and that if he were in a financial position to do so, he would continue with his studies. The Tribunal gives this some weight against the cancellation of the visa.

    The extent of compliance with visa conditions

28. The applicant was not enrolled in a course of study from 27 February 2017 until the delegate’s decision on 17 November 2017, a period of over eight months. This is a significant period of time to be in breach of the enrolment condition.

29. The applicant gave evidence that he has worked as a bar manager in a hotel for the past two years. Prior to that he has held various jobs in Australia as a bar tender, cellarman, glass collector and kitchen hand. He told the Tribunal that he has always complied with his work limitations, although on occasions he may have worked one or two hours over the limitation, but this was irregular. The Tribunal gives this consideration little weight against cancelling the visa.

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

30. When asked about the hardship which may be caused by the cancellation of his visa, the applicant stated that it would mean that he cannot stay in Australia anymore. He stated that he would need to find a new job in Nepal, which would not earn him enough to pay for the loan his family has taken out to pay for his studies. When asked if there was any other hardship, he replied no.

31. The Tribunal enquired whether the inability to complete his Masters of Business of Administration would be a difficulty, to which the applicant confirmed it would. The applicant stated that he had just three subjects to complete in order to obtain his Masters. The Tribunal noted that according to his Interim Statement of Results for the Master of Business Administration, issued by Holmes Institute on 30 April 2018, the applicant was enrolled in three subjects on 7 November 2016, but received a mark of 0% for each as he did not submit any work. The applicant confirmed that these are the three subjects he has to complete. The Tribunal noted that other than these three subjects, the applicant had passed one subject in semester 1 of 2016 and had received credit for four subjects previously studied. The Tribunal noted that his Statement of Results lists eight subjects in total, which is unusually short for a Masters degree, and enquired whether there were additional subjects to be completed. The applicant then stated that the course involves 12 subjects, of which he has seven still to complete.

32. The Tribunal accepts that the applicant and his family would encounter some hardship as a result of the cancellation of the visa, in particular financial hardship. The Tribunal has also considered the hardship to the applicant if he is unable to complete the Master of Business Administration. The Tribunal notes however that the applicant has completed a Bachelor of Accounting in Australia and has resided in Australia since February 2008, a period of close to 12 years on temporary Student visas and associated Bridging visas. The Tribunal finds that the applicant has obtained a professional qualification in Accounting, which will assist him to find work in the future. Accordingly, the Tribunal gives this only some weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

33. The applicant told the Tribunal that the main reason why his enrolment at Holmes Institute was cancelled was because of the financial situation at home as well as his financial situation in Australia. He stated that his parents were sponsoring his studies, however his father’s food and restaurant business ran into difficulties and he was forced to shut the business. He stated that his father had to take out a loan to allow the applicant to study, and his father decided he had to sell the family home in order to pay for his studies. When asked what he meant about his financial situation in Australia, the applicant stated that his Student visa only allowed him to work 20 hours per week, which was not enough for him to pay the rent as well as his course fees. He did not pay his course fees and Holmes Institute cancelled his enrolment.

34. The Tribunal enquired about the applicant’s current financial situation, to which he responded that at the moment he cannot say that he can financially afford to study, as his father is now too old. He stated that he would have to manage his finances on his own in order to finish his studies.

35. When asked if he has any documents relating to the financial situation which his family experienced at the time of the cancellation of his enrolment, he stated that he did not. He stated that he does not have any financial documents as his family still owes the loan.

36. When asked if there were any other circumstances which resulted in the cancellation of his enrolment, or any other circumstances which were beyond his control, the applicant stated that there were not, and that the cancellation of his enrolment was only due to his financial situation.

37. The Tribunal raised with the applicant concern that his financial circumstances at the time of the cancellation may not be a sufficient ground against cancelling the visa, given that a Student visa holder must have genuine access to funds to meet the cost and expenses during their stay in Australia. The applicant indicated that he understood the concern, but indicated that he had no comments to make regarding the concern.

38. While the Tribunal found the applicant to be candid in the evidence he gave about these financial difficulties, he has provided no evidence to support his claims that this was the reason why he was unable to pay his fees. In any case, while the Tribunal sympathises with the applicant’s financial situation, having a genuine access to funds is a requirement for the Student visa. The applicant would have been aware that he was required to pay course fees and provided a financial guarantee to the Department before his visa was granted. The Tribunal considers the circumstances which the applicant has outlined in his evidence are not exceptional. There is no evidence of extenuating circumstances beyond the visa holder’s control. The Tribunal gives this matter only little weight against the cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

39. There is no evidence that the visa holder has been uncooperative with the Department. At the hearing, the Tribunal noted that the applicant had not responded to the Department’s Notice of Intention to Consider Cancellation (NOICC) of the visa. When asked why, the applicant stated that after receiving the NOICC he went to see an agent, who told him that he would look after everything. He stated that he thought the agent had responded on his behalf. The Tribunal accepts that this was the case and accepts that there is no evidence the applicant has been uncooperative. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

40. The applicant stated at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

    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

41. 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, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. 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 applicant confirmed at hearing that he understood these mandatory legal consequences and he did not have any comments to make The Tribunal gives this only little weight against cancelling the visa.

    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

42. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa

    Any other relevant matters

43. The Tribunal asked the applicant whether there are any other relevant matters which the Tribunal should take into account. The applicant asked whether the Department needs proof of his financial situation. The Tribunal explained that the question before the Tribunal is not so much whether the applicant has current financial capacity to support his studies, but the matters contained in the Department’s Procedural Instruction ‘General visa cancellation powers’, which should be taken into account in exercising the discretion to cancel the visa. The Tribunal reiterated that one of the matters it should take into account is the circumstances in which the ground for cancellation arose, and asked whether the applicant has any documents to provide which relate to this matter. The applicant stated that he had nothing to provide.

1. At the conclusion of the hearing, the Tribunal again enquired whether the applicant wished further time to provide any documents, to which he confirmed he had no further documents to provide.

2. The Tribunal finds that there are no other relevant matters which give weight against or in favour of cancelling the visa.

   Considering matters as a whole

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. In particular the Tribunal places weight on the applicant’s evidence that his financial circumstances (and those of his family) at the time of the breach were the reason why his enrolment was cancelled. Although this financial situation has no doubt been difficult for the applicant and his family, the circumstances outlined by the applicant are not exceptional. As noted above, the applicant provided a financial guarantee to the Department with his visa application and would have been aware of the requirement to pay his course fees. In considering the matters that should be taken into account in exercising the discretion, as a whole the Tribunal considers they provide insufficient weight against cancelling the visa.

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

   DECISION

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

   Frank Russo
   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.