SHRESTHA (Migration)

[2018] AATA 5200

SHRESTHA (Migration) [2018] AATA 5200 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nischal SHRESTHA

CASE NUMBER:  1801304

HOME AFFAIRS REFERENCE(S):           BCC2014/3010106

MEMBER:Mr S Norman

DATE:24 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 September 2018 at 5:05pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa– Federal Circuit Court remittal – applicant failed to attend tribunal hearing – no response to the hearing invitation letter – not enrolled in a registered course of study – breach of condition 8516– applicant had not continued his intended study path – Decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 362B
Migration Regulations 1994, cls 573.231, 573.223, r 1.40A

CASES
COT15 v MIBP (No. 1) [2015] FCAFC

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 February 2015 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 of the Migration Act 1958 (the Act). The Department decision was lodged with the Tribunal by migration agent email of 8 May 2015.

2. A prior Tribunal had previously affirmed the Department delegate’s decision on 3 June 2015. By order of the Federal Circuit Court dated 30 November 2017, that decision had been quashed and the matter remitted to be determined according to law. The case was remitted as it was conceded the prior Tribunal failed to consider evidence submitted by the applicant regarding his enrolment in courses at the Holmes Institute, by making a finding that ‘the applicant has not provided evidence to satisfy the Tribunal that the offer and the CoE for the Bachelor of Accounting[1] were issued before he ceased to be enrolled in the original higher education course’.

   [1] See 1^st Tribunal file – folio 39.

3. By letter of 18 January 2018 (dispatched by email), the Tribunal wrote to the applicant and advised inter alia that the Tribunal would ‘send all future communications to [his personal email] address at the top of this letter, unless [the applicant advised] us otherwise’[2] (an Appointment of Representative - Appointment of Authorized Recipient – MR Division’ form was attached to that letter). The email address was the same email address the applicant provided to the first Tribunal, and the email address currently held by the Department. No response was received.

   [2] 2^nd Tribunal file – folo 9.

4. The present Tribunal also noted the applicant had been represented by a migration agent before the prior Tribunal. As the applicant did not attend the hearing scheduled for 10.00am on Friday 21 September 2018, I requested a case officer telephone the prior agent to ask whether they still acted in this case. The case officer attempted to contact that agent ‘several times’ in the afternoon of Friday 21 September 2018 (the day of the scheduled hearing); and also the following Monday 24 September 2018. The case officer left ‘several messages’ requesting the agent contact the Tribunal by COB Monday 24 September 2018. No response was received.

5. That being said, by letter of 3 August 2018 (dispatched by email to the applicant’s personal email address), the Tribunal invited the applicant to attend a hearing before the Tribunal. That letter advised the applicant the Tribunal 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 at 10.00am on 21 September 2018. No response to the Tribunal’s hearing invitation letter was received.

6. Two SMS hearing reminder texts were sent to the applicant’s claimed mobile phone (14/09/2018 & 20/09/2018). The mobile phone to which the messages were sent, was the mobile number provided by the applicant in his merits review application. However, both texts have been recorded as ‘Delivery of SMS hearing reminder failed’. Earlier attempts to contact the applicant by telephone were not successful. It had been noted that no message was able to be let as the phone had ‘numbers restricted’.

7. In the hearing invitation letter of 3 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. 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.

8. 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

9. 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 ground set out in s.116(1)(b) of the Act. 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?

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires:

    The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

11. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 9 January 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 November 2014, the applicant was advised it appeared he had breached condition 8516 which was attached to his TU-573 Higher Education Sector Student visa.

12. The delegate then noted that on the grant of his visa, the applicant was required to meet, amongst other criteria, cl.573.231 or cl.573.223(1A). These stated:

    573.231

    [573.231 substituted by SLI 2012, 35 with effect from 24/03/2012 - LEGEND note]
    If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
    (a)      the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
    (b)      the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i)      made under regulation 1.40A; and
    (ii)      in force at the time the application was made

    and:

    573.223(1A)

    …..

    (1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and
    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and
    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

    Further. 573.1      Interpretation and preliminary provided:

    …..

    eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
    (a)      the applicant is enrolled in a principal course of study for the award of:

    (i)      a bachelor’s degree; or
    (ii)      a masters degree by coursework;

    (b)      the principal course of study is provided by an eligible education provider;
    (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)      the applicant is also enrolled in that course; and
    (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

13. In the NOICC letter, the applicant was also advised that according to the Provider Registration and International Student Management System (PRISMS) it appeared he was not enrolled in a Bachelors degree or a Masters degree and therefore he was not enrolled in a course of study that was a principal course of a type specified for TU-573 visas by the Minister in an instrument under reg.1.40A. Accordingly, as he had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A), it also appeared he did not continue to be a person who would satisfy the primary criteria for the grant of the visa – as required by condition 8516. Finally that his visa may therefore be cancelled under s.116(1)(b) of the Act. The applicant did not respond to the Department NOICC letter[3] and the delegate cancelled the visa on 13 February 2015.

    [3] Department – folio 11.

14. The applicant had been recorded as advising the prior Tribunal he had obtained an offer of enrolment from Holmes Institute relating to a Certificate IV, a Diploma and a Bachelor of Professional Accounting course.[4] The prior Tribunal noted the applicant had not provided sufficient evidence to satisfy them he had obtained these enrolments before he ceased to be enrolled in his initial higher education course. The present Tribunal also understands the PRISMS record indicated (ie) the applicant was not enrolled in a Bachelors degree or a Masters degree and therefore he was in breach of condition 8516.

    [4] See 1^st Tribunal file – folio 39.

15. For these reasons, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) of the Act exists. 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

16. 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’.

17. The applicant was granted the Higher Education Sector Student visa on the basis of his intention to study at a higher education level. When applying for the visa, the applicant claimed he wished to undertake the following courses:

    ·     Diploma of Commerce; and

    ·     Bachelor of Commerce.

18. However, based on the information in PRISMS, the applicant had not continued his intended study path. For instance, the applicant withdrew from his Higher Education level course on 28 July 2014. He then obtained enrolment in a course at the Vocational Education and Training Sector Level. As his enrolment in a Higher education Sector course was cancelled, he was no longer an eligible higher degree student. It is not uncommon for students to change courses in Australia. However, applicants need to ensure they continue to meet the criteria for the grant of their visa, and in this case, the applicant had not done so.

19. The Tribunal has no further evidence of the applicant’s non-compliance with the terms of his Student visa.

20. Next, the prior Tribunal noted the applicant said his parents had spent a lot of money and would be heartbroken if his visa was cancelled. He said they would consider him a failure and would not support him further. He said his parents were elderly and will be depressed and he would be depressed if his visa was cancelled. His migration agent submissions dated 3 June 2015,[5] materially repeated these claims. The present Tribunal accepts the applicant or his family may be disappointed if his visa is cancelled.

    [5] 1^st Tribunal – from folio 43.

21. The applicant emailed the Department on 13 February 2015[6] (received by the Department on the day of the delegate’s decision – but unable to be directed to the delegate until after their decision, given that insufficient identifying details were provided). In that email the applicant had said he was “very depressed and had very bad anxiety”. These conditions had worsened after he received (amongst other things) the NOICC letter.  He had not told anyone, including his family about his circumstances. He also said he was “very mentally disturbed”. The prior Tribunal[7] recorded the applicant as saying he had not successfully completed any course since he arrived in Australia nearly 18 months prior to that hearing.[8] The applicant was also recorded as claiming he had not obtained “much assistance during his study and he did not perform well”. He also said he was ‘not use to this environment’ and decided to change his course provider. The applicant was also recorded as saying it was difficult for him to make friends and he lived in a noisy area. His academic performance was therefore poor and he was advised he may be excluded from the University. He then said he was unable to obtain help from the University and nobody else could help him. He then sought assistance from a migration agent, who had been recommended to him by a friend. He then transferred to another course.

    [6] Department – from folio 18.

    [7] Department – folio 22 (reverse side).

    [8] Department – folio 22.

22. The present Tribunal notes that no corroborating evidence had been lodged with it. However, it is plausible the applicant or his parents could be disappointed if his visa is cancelled. Though claimed by the applicant, the Tribunal is far less certain the applicant sought and was refused the help he claimed. Be that as it may, the Tribunal proposes to accept that if the applicant’s visa is cancelled, this may cause him or his family some financial or other harm. If his visa is cancelled, he would also become an unlawful noncitizen and liable to detention under s.189 and removal 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. The Tribunal also notes he could retain his Bridging visa in order to temporarily remain in the community so as to finalise his affairs prior to departing (assuming no alternate visa application is lodged).

23. Regarding the applicant’s claimed depression, the Tribunal has no (ie) medical evidence corroborating same. The prior Tribunal noted the applicant claimed he continued his work in a kebabs shop from around August 2014, and it did not appear his depression prevented him from working. The present Tribunal accepts it is possible the applicant would be depressed, including if his visa was cancelled. However, the Tribunal has no evidence that satisfied it the claimed depression substantially impacted the applicant’s study in Australia.

24. Next, the Tribunal 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.

25. Next, the Tribunal has no evidence the applicant had been uncooperative with either the Department or the Tribunal. Next, the Tribunal has no evidence that any other person’s visa would or may be impacted by the cancellation of the applicant’s visa.

26. Next, the applicant emailed the Department on 13 February 2015.[9] He said he could not return to Nepal as he had been attacked and almost killed there and it was a very dangerous place. He said he “loved Australia as it had given him a new life” and he had been accepted by Australians. The Tribunal notes the FFC has previously upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to (possible) non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a Protection visa (COT15 v MIBP (No. 1) [2015] FCAFC, North, Collier & Flick JJ, 22 December 2015[10]). The Tribunal understands each case may need to be considered according to its merits, however in the present case, I am satisfied that such claims could be better canvassed in an alternate visa application.

    [9] Department – from folio 18.

    [10] COT15 v MIBP (No. 1) [2015] FCAFC, North, Collier & Flick JJ, 22 December 2015.

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

    DECISION

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

    Mr S Norman
    Member