Suwal (Migration)

[2019] AATA 3882

Suwal (Migration) [2019] AATA 3882 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rukesh Suwal

CASE NUMBER:  1719870

HOME AFFAIRS REFERENCE(S):           BCC2017/2013965

MEMBER:Stephen Conwell

DATE:12 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 June 2019 at 6:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – enrolment in a registered course – applicant ceased enrolment – non-payment of fees – unsatisfactory academic progress – Nepal 2015 earthquake – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 116, 119
Migration Regulations 1994, r 2.43

CASES

MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 August 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 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 was determined not 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 1 May 2019 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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 ground set out in s.116(1)(fa)(i). 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?

7. 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.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

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.

10. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 21 February 2014 and entered Australia on 28 February 2014. His original course of study comprised of a package of subjects commencing with a Certificate IV Tertiary Preparation Program (TPP) leading to a Diploma of Commerce and then a Bachelor of Commerce.

11. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 2 August 2017, the applicant was advised that information before the Department delegate indicated he is not, or is likely not, to be a genuine student.

12. The applicant responded to the NOICC letter by a written statement dated 8 August 2017 which is quoted at length in the delegate’s decision record. However, after considering the evidence, the delegate noted:

    ·     Information on the Provider Registration and International Student Management System (PRISMS), indicated that the applicant commenced the TPP course at Deakin College on 6 February 2014 but ceased study approximately 6 months later on 6 February 2015, with Deakin College recording his unsatisfactory course progress. Consequently his enrolment in the Diploma of Commerce was cancelled.

    ·     The applicant then enrolled in a Certificate IV in Business at Pass Global commencing on 11 May 2015 but ceased study a month later on 28 June 2015.

    ·     The applicant enrolled in a Bachelor of Professional Accounting at Holmes Institute, commencing this course on 17 August 2015 but however his enrolment was cancelled on 30 October 2015 due to non-payment of fees.

    ·     The applicant re-enrolled in a Bachelor of Professional Accounting at Holmes Institute, commencing this course on 30 November 2015 but however his enrolment was cancelled on 24 June 2016, again due to non-payment of fees.

    ·     The applicant re-enrolled in a Bachelor of Professional Accounting at Holmes Institute, for a third time, commencing this course on 8 August 2016. His enrolment was cancelled some two months later, on 22 October 2016, once again due to non-payment of fees.

    ·     The applicant then enrolled in a Bachelor of Business (Accounting) at Acknowledge Education, commencing study on 24 July 2017.  He was issued with a NOICC on 2 August 2017. After considering the applicant’s response to the NOICC on 8 August 2017, the Department cancelled his Student visa on 25 August 2017.

    ·     Since entering Australia on 28 February 2014, the applicant has never successfully completed any of the courses outlined in his study plan he advised on his TU 573Student visa application.

    ·     Student visas (subclass 570 – 574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  That the applicant would give priority to his ongoing enrolment, and participation, in our CRICOS registered course of study was the principality basis for the grant of his visa, and is expected of any genuine student.

    ·     The applicant’s lack of academic progress, extensive study gaps of non-studying at the appropriate level over a substantial period of time, whilst nonetheless choosing to remain in Australia on a visa solely existing for his engagement in study, indicated that the applicant is not a genuine student.

13. In his written response to the NOICC and in his statutory declaration of 29 April 219 the applicant put forward a number of reasons for his poor study history. His representative also provided a written submission dated 29 April 219.  These reasons are summarised below:

    ·     as a new international student he initially had difficulties adjusting to life in Australia and to its education system, as well as experiencing difficulties in seeking to study in English. As a consequence of these difficulties he was advised by a migration agent to transfer to a different package of courses offered by different education providers.  However not long after changing his enrolment he became aware that he was at risk of breaching his visa conditions and therefore sought to change his enrolment to Holmes Institute in order to rectify the situation.

    ·     on 25 April 2015 his home country of Nepal was struck by a major 7.8 magnitude earthquake, earthquake and subsequent aftershocks. Almost 9,000 people were estimated  to have been killed and tens of thousands of people injured. His home town of Bhaktapur was affected and his father’s business closed down. He had difficulty contacting his family during this time and was anxious and concerned and had difficulty studying.  He claims he was in shock and probably experienced depression as well. He considered returning to Nepal after the earthquake but was convinced by his mother to remain in Australia and focus on his studies.

    ·     He attended classes but “knew that I was not doing well enough to be able to sit exams. I had paid half of the course fees to enrol with Holmes Institute but did not pay the second instalment during the semester which was a requirement to sit the exams. I paid this later, during my second semester, but my COE was cancelled.”

    ·     He re-enrolled in the same course at Holmes Institute on another two occasions, each time paying the first instalment of his fees, but not the second instalment, and therefore being prevented by the college from sitting his exams. 

    ·     In January 2016 the applicant learnt that his aunt, Tulsi Maya Suwal had died. He had a close relationship with this aunt and his learning of her death was a further emotional blow to him. His statutory declaration states that for his next set of exams, he again “chose not to pay the fees to be able to sit the exams and stayed in school without being able to progress.

    ·     In October 2016 Holmes Institute cancelled his enrolment for non-payment of fees for a  third consecutive time and refused to accept his further enrolment.

    ·     From 22 October 2016 to 24 July 2017 the applicant had difficulty in enrolling in any studies and was not enrolled for a period exceeding 9 months.

    ·     The applicant eventually enrolled in a Bachelor of Business (Accounting) at Stott’s College commencing on 24 July 2017.  He was progressing well in his studies. Shortly thereafter he received a NOICC from the Department on 2 August 2017.  After considering his response to the NOICC the Department decided to cancel his Student visa on 23 August 2017.

    ·     On 21 September and again on 10 October 2017 the applicant applied for a waiver of the ‘no study’ condition on his Bridging visa E, however both applications were refused.

    ·     He is a genuine student who wishes to acquire business and accounting skills to take back to Nepal.  His father as a businessman, manufacturing animal feed; the applicant can contribute to the business’s success if he acquires business qualifications in Australia.

    ·     His family will continue to provide full financial support should he be granted a visa and allowed to complete his studies onshore he believes he has overcome the initial adjustment period following his arrival in Australia, as well as the anxiety and depression following the 2015 earthquake in Nepal and the death of his aunt.  He is ready to make the most of his opportunity to study in Australia.

    ·     The delegate calculates that the applicant studied for a total period of approximately one year and two months in the (approximately) three years and five month period between his first arrival onshore and the cancellation of his visa.  The applicant asserts this is incorrect and in fact that he studied for a period of approximately two years and 50 days during the three year and five month period, i.e. that he studied for approximately 779 days out of a possible 1,275 days.  According to the applicant, his period of non-study is in fact a period of one year, four months and 19 days (approximately 496 days).

    ·     The majority of the applicant’s periods of non-study occurred between courses of study.  Further although the applicant acknowledges that his periods of non-study are substantial, it does not indicate that he was intentionally avoiding engaging in study or seeking to avoid the responsibilities of a genuine student.

    ·     The applicant contends that the grounds for cancellation do not exist as he is a genuine student.  In the alternative, the applicant submits that should the Tribunal find him to not be a genuine student, then on the basis of the discretionary factors set out in Departmental Policy.

14. At hearing the applicant reiterated much of the written statements and evidence submitted on his behalf. He referred to his difficulties in adjusting to life and study in Australia; he claimed to have been depressed for a period of time. He claimed to have finally found his motivation to study when enrolled at Stott’s College, when unfortunately his Student visa was cancelled.

15. Subsequent to the hearing the following medical certificates were submitted as corroborating medical evidence:

    ·     medical certificate from Coburg Family Medical Centre, dated 21 September 2016, stating that the applicant was unable to perform his usual occupation from 19–20 September 2016 inclusive due to medical illness;

    ·     medical certificate from Victoria Street Medical group dated 18 October 2016 stating that the applicant was unable to attend his usual work or college from 16–19 October 2016 inclusive.

16. The Tribunal finds the applicant’s claim to have experienced depression to be unconvincing. The Tribunal accepts that many international students experience some difficulties in adjusting to the academic and cultural challenges of studying overseas.  The Tribunal also accepts that the applicant would have felt concerned and anxious for his family and the wider community in Nepal following the major earthquake in April 2015.  Nevertheless the applicant has not presented probative medical evidence to support his claimed depression.  The two medical certificates submitted each relate to his being unfit for work or study over only one to two days in September and October 2016; both medical certificates are generic in their description of the applicant’s medical condition.  Both medical certificates also relate to a period which is some 18 months after the Nepal earthquake and the Tribunal finds no causal link between that event and the applicant’s medical condition as is stated to be in the two certificates.

17. The Tribunal is not prepared to accept these claims without probative documentary evidence.  In the absence of such, the Tribunal does not accept the applicant’s assertions that he was depressed either as a result of his poor study experience whilst onshore or for any other reason.

18. As conceded at hearing, the applicant had failed to complete any course of study in Australia since the grant of his Student visa on 21 February 2014. His lack of academic progress and extensive periods of non-study (which he concedes are substantial) whilst remaining onshore suggest to the Tribunal that the applicant is not a genuine student. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.1161)(fa)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

19. 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 to and stay in Australia

20. The Tribunal is satisfied that the applicant travelled to Australia with the original purpose being to study higher education.  The Tribunal notes that the applicant has failed to complete any course of study in Australia since the grant of his Student visa on 21 February 2014. The Tribunal finds this consideration weighs against the applicant.

    The extent of compliance with the visa conditions

21. The applicant was granted a student visa subclass 573 to undertake a course of higher education study, and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573 visa, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily. The Tribunal notes the applicant’s poor study history and in particular his failure to complete any course of study in Australia since the grant of his Student visa on 21 February 2014.

22. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions. It gives this some weight considers in his favour.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing.

23. The Tribunal notes the applicant’s evidence that his lack of application to his studies and poor attendance initially arose because of his difficulty adjusting to life and study in Australia.  Later, the impact of the earthquake in Nepal upon his family and others, caused him distress so he did not apply himself to his studies. 

24. The applicant offered no evidence that he had sought the assistance of his education providers for his difficulties in adjusting to life and study in Australia. There is no evidence that he sought a deferral of his studies in response to these challenges. The Tribunal considers the applicant’s circumstances were not such that they might be said to be beyond his control, nor are they extenuating circumstances.

25. The distress caused to the applicant by the 2015 earthquake in Nepal and later his learning of his aunt’s death would understandably have affected him emotionally and caused him anxiety and grief.  The Tribunal considers this would, for a period of time, have adversely affected his ability to engage in and prioritise his studies.  However the Tribunal does not consider it justification for the applicant’s prolonged lack of genuine student activity and his inability to maintain enrolment in higher education courses.  The Tribunal gives this limited weight in the applicant’s favour.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of the cancellation decision.

26. Regarding any hardship the applicant or his family may suffer if his visa is cancelled, the applicant claims that he wishes to acquire business and management skills through his study in Australia so that he may join his father in his animal feed business.  The Tribunal is prepared to accept that some hardship would be caused by the cancellation as the applicant will not be able to pursue further study in Australia. The Tribunal also accepts the applicant and his parents would suffer financial loss in the event of his visa cancellation. However there is no evidence that he or they will be caused any significant degree of financial, psychological or emotional hardship if his visa is cancelled.  The Tribunal therefore gives little weight to this factor in considering whether to cancel the visa.

    The visa holder's past and present behaviour towards the department (for example, whether a person has been truthful in statements or cooperative in their dealings with the Department).

27. The Tribunal has no evidence before it that the applicant's past and present behaviour towards the Tribunal has been untruthful or uncooperative. It considers this is a consideration in his favour.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

28. There is no indication that there are persons in Australia whose visas would or may be cancelled under s.140 of the Act. The applicant has stated that he is alone in Australia. The Tribunal therefore finds this factor is not a relevant consideration.

    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

29. The applicant did not raise any matters to suggest that this is an issue. Nor is there any other evidence or indication before the Tribunal that a relevant international agreement obligation may be impacted by the cancellation of the applicant’s visa.  The Tribunal therefore finds this factor is not a relevant consideration.

    Whether there are mandatory legal consequences to a cancellation decision.

1. The cancellation of the visa would mean that the applicant may become an unlawful non-citizen if his Bridging visa ceases and he remains in Australia without obtaining a subsequent valid visa.  The applicant would then become unlawful and subject to removal from Australia. The Tribunal does not consider that the factor of the applicant becoming liable to detention and removal if he remains in Australia without a valid visa, outweighs other factors that support the cancellation of the visa.

2. The Tribunal has also taken into account the fact that the applicant would face being subject to PIC 4013 and a three-year exclusion period on temporary visas.  However the applicant has not presented any compelling need to remain in Australia or to return to Australia within the next three years. The Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that support the cancellation of the visa.

   Any other relevant matters

3. There are no other relevant matters before the Tribunal.

   Conclusion

4. Considering the circumstances as a whole, the Tribunal concludes that the weight of the considerations outlined above support the cancellation of the applicant’s visa. The Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Stephen Conwell
   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.