SHRESTHA (Migration)

[2018] AATA 5860

SHRESTHA (Migration) [2018] AATA 5860 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GAURAV MAN SHRESTHA

CASE NUMBER:  1619072

HOME AFFAIRS REFERENCE(S):           BCC2016/2803580

MEMBER:Mr S Norman

DATE:23 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 October 2018 at 12:30pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course for almost 15 months – hospitality course – financial difficulties – family issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 362
Migration Regulations 1994, Schedule 8, condition 8202, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was not lodged with the Tribunal. However, the applicant did lodge the Notification of cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under s.116 of the Migration Act (the Notification letter), dated 9 November 2016, with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2) – enrolment. 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. On 24 August 2018 (dispatched by email to the then authorised recipient), the Tribunal sent the applicant a hearing invitation letter advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 23 January 2017. No response to the Tribunal’s hearing invitation letter was received. One SMS (hearing reminder) text was sent to the applicant’s claimed mobile phone; however that had ‘failed’ to be received. That being said, the Tribunal was subsequently advised by the applicant that he had departed Australia[1] (on 16 January 2018). Be that as it may, in the abovementioned letter of 24 August 2018, the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

   [1] See applicant email dated 5 September 2018.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 30 June 2015. By Notification of Intention to Consider Cancellation (NOICC) of that visa dated 13 October 2016, and as stated in the abovementioned Notification letter, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated the applicant had not been enrolled in a registered course of study since 25 July 2015. Further that it therefore appeared the applicant did not meet the requirement of condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b). The applicant responded to the Department NOICC letter, and as considered material, I have referred to that response herein.

9. However, 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

10. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

11. The applicant said he wished to study in Australia and there is no material evidence before the Tribunal that the applicant’s initial intention in travelling to and residing in Australia was not for the purposes of study. However, based on the evidence before it, the applicant has now departed Australia.

12. The applicant failed to maintain enrolment in a registered course of study for almost 15 months (at the time of the NOICC letter). The Tribunal believes this to be significant. That being said, the delegate noted the applicant had last completed a Certificate IV in Hospitality on 15 August 2014; he had not completed any study in his principal study stream; he was reported by his education provider for non-commencement of studies; and there is no corroborated evidence the applicant was attempting to return to studies.

13. The Tribunal accepts that if the applicant’s visa is cancelled he and/or his family may be subject to some financial or other hardship. He may also be liable to being detained under this.189 and removed under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention.

14. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he could not be granted a temporary visa for three years from the date of cancellation.   

15. The applicant had said that all his “hopes and dreams seem to disappear into thin air and he never felt so helpless”. He said his life was in ‘complete turmoil’. He later wished to return home and had contacted his parents who had initially agreed. However a week later they called him back and told him they wanted him to remain in Australia to “achieve something before he returned”. He said his grandparents wished him to make a good career and his family also wanted to ensure that he achieved this. Be that as it may, the applicant had departed Australia in January 2018.

16. In his emailed response to the NOICC letter and dated 8 November 2016,[2] the applicant said that his hometown in Nepal was hit by an earthquake in April 2015. He said his family members were “deeply affected by the disaster and rendered homeless for many months as the house was almost un-liveable”. He said his family rebuilt the home; but the price of construction materials and human labour was high; this had put financial strain on his family; and the applicant could neither afford to continue his studies or even return to his home. The Tribunal accepts this may have been correct, however, the evidence indicated the applicant had subsequently departed Australia.

    [2] Department – from folio 24.

17. Next, the applicant said his grandmother passed away in October 2015; and his grandfather passed away in December 2015. The Tribunal understands the applicant’s family had spent money on their medical treatment prior to their passing. The applicant then said he was very close to his grandparents and along with the Nepal earthquake, he was “rattled”. He found he could not focus on his studies or ask his parents for money. Next, the applicant said he approached his College (in Australia) about deferring his course but was told he could not do that and remain in Australia. He then said he was unable to return to Nepal as he did not have any money to pay for his travel expenses, and he also did not wish to put any extra financial or other strain on his family who were already struggling with their own accommodation.

18. The applicant later ‘approached’ Holmes College about “re-joining them but there had been some administrative delays from their side”. The applicant said he was also “researching other providers who would give him suitable alternatives”. He said this was at the time he was contacted by Immigration (though no corroborating evidence was lodged). He now requested another chance to study in Australia. However, the evidence indicated the applicant had departed Australia.

19. The applicant claimed his circumstances were beyond his control, however, he could have deferred his studies in Australia and returned to Nepal sometime within the 15 month period that he remained not enrolled; and he presumably continued to work in Australia during this period.

20. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

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

    Mr S Norman
    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.