Subedi (Migration)

[2019] AATA 6424

Subedi (Migration) [2019] AATA 6424 (5 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pradeep Subedi

CASE NUMBER:  1715368

HOME AFFAIRS REFERENCE(S):          BCC2017/1581936

MEMBER:Wendy Banfield

DATE:5 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 November 2019 at 11:01am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – Bachelor of Information Technology – not enrolled in registered course for ten months – non-payment of fees – financial difficulties – family illness – purported personal hardships – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 12 July 2017 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).

2. The delegate cancelled the visa on the basis that the applicant had not complied with the conditions of his Student visa by failing to maintain enrolment in a course of study. 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 21 October 2019 to give evidence and present arguments by phone as he has returned to Nepal. However, the phone connection was too poor to continue and the applicant indicated it was unlikely he could access a better service. Since it was not possible to conduct the hearing by phone, the Tribunal wrote to the applicant on 21 October 2019 and invited him to provide written information in support of his application for review. The applicant provided a response on 4 November 2019.

4. 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

5. 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?

6. 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).

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

8. The Department cancelled the applicant’s visa as he was not enrolled in a course of study from 11 August 2016 to 13 June 2017 when a Notice of Intention to Consider Cancellation (NOICC) was issued. The applicant responded to the NOICC in which he explains his failure to maintain enrolment was due to personal hardships over the previous eight months. He advised his breach of visa conditions was unintentional but does not dispute there were grounds to cancel his Student visa. 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

9. 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’

   ·     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

10. The applicant gave evidence about his purpose in travelling to Australia as follows:

    A firm research after completion of my high school led me to choose Australia to continue my further study. With a sole purpose of studying and completing my Bachelor’s degree, I entered Australia to study Bachelor of Information Technology at Melbourne Institute of Technology, Sydney which I could not complete unfortunately. I always dreamt of getting a global exposure studying Information Technology in Australia and that was the prime intention to go Australia. Although it was a bit hard at the beginning, I was getting along with the student lifestyle there and I can really boast up about my study as well.

11. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. Some weight has been given in the applicant’s favour in this regard.

12. The applicant was invited to make submissions regarding his any compelling need to remain in Australia. In his written submission he advised:

    A Bachelor’s Degree from Australia will definitely help me get into the tech sector in my country as Nepal is progressing and doing great in technologies. I have already invested my money, energy and time in Australia that has taught me things and lessons as well. Thus, adapting to the environment and culture will also not be a problem for me. My parents have strong hope and faith in me that I can complete the oath I have taken of graduating and I am sure I will make them proud. Another major issue is the frequent questions raised to my family and I about my study and return from Australia as it is shameful in a way to share. So, I need to complete my study from Australia and want to regain our pride. Learning in the state-of-art facilities there will be a major assistant to enhance my career too. So, I can assure you that my only intention is to study rather than migrating to Australia.

13. The Tribunal considered the applicant’s submission and although he has expressed a wish to return to Australia and study a Bachelor degree, the Tribunal is not satisfied he has a sufficiently strong need to do so. In his written evidence he advised he is residing in his home country and has a job in IT. As such, he has not demonstrated a powerful or convincing reason for needing to study in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to travel to and remain in Australia.

    ·     the extent of compliance with visa conditions

14. In his written submission the applicant set out his understanding of the conditions to stay lawfully in Australia. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study, which the applicant accepts he did not do, is a fundamental breach of a student visa and weighs against the applicant in this case.

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

15. The applicant referred in his written submission to hardship that may arise as a result of his visa being cancelled.

    Primarily, I have spent a significant number of years in Australia where I have learnt more than half portion of Information Technology, and cancellation of my visa has definitely affected my study and educational career as well. On the other hand, it will also affect my immediate family and me as my family had strong expectations from me. After my visa was cancelled, I had to come back my country bare handed which was a complicated situation of course. Even the behaviour of our relatives towards me and my family changed because they thought I was a failure which I could not stand. Though I was completely demotivated with all these, with help of my brother, I moved another city to work. So, I started working in an IT company as a junior level officer. However, to upgrade myself, I need a Bachelor’s degree to uplift and take myself to another bigger level.

16. The Tribunal is mindful that the cancellation of the visa means the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

17. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for approximately ten months. The applicant gave reasons for this:

    I believe I breached a condition but I would like to state that it was complete unintentional. My elder brother, Prakash Subedi got really sick after he met an accident. My parents had to spend a lot of money to cover his medical expenses and consequently they were not able to help me financially due to which I could not submit fees on time to my enrolled institution. They were my primary source of funding but their hardships largely affected me too as I could not pay my tuition fee on time.

18. The Tribunal accepts the applicant’s brother required medical treatment in Nepal as evidenced by the medical documentation submitted. However, if the applicant was unable to finance his education in Australia as he claims he should have deferred his studies and returned to his home country until he was in a position to resume. The circumstances submitted are not adequate reasons for the applicant to stay in Australia while not complying with the conditions of his student visa and failing to study over an extended period of time.  

19. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or defer his studies during the period when he was not enrolled, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

20. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

21. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

22. The applicant acknowledged the legal consequences resulting from cancellation of his Student visa.

    Cancellation of my student visa will limit the type of visas I could apply for. Also, it would result in I becoming an unlawful non-citizen and liable to detention. Consequently, I may receive a three year exclusion period as a consequence of the visa cancellation.

23. The applicant is no longer in Australia therefore he cannot be deemed an unlawful non-citizen and cannot be detained. An exclusion period and limitation on visa types are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

24. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

25. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

26. The applicant submitted the following statement:

    The breaching of my student visa condition was completely unintentional and thus I would like to appeal the respected department to consider the situation. I would also like to assure the department that no further behaviour will be seen from me as I have learnt my lesson and understood the consequences of breaching the visa conditions. I really aspire to complete by Bachelor’s degree and return back to the place where I am working to help me.

27. Although the applicant has acknowledged being in breach of visa conditions he also states it was “completely unintentional” which the Tribunal does not accept. It is the responsibility of visa holders to ensure they comply with visa conditions. The applicant would have been aware that while holding a Student visa, it was not open to him to remain in Australia without being enrolled to study and without making any academic progress for a significant period.

    Conclusion

28. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.