Tamang (Migration)

[2019] AATA 877

Tamang (Migration) [2019] AATA 877 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nar Bahadur Tamang

CASE NUMBER:  1702890

HOME AFFAIRS REFERENCE(S):           BCC2017/219340

MEMBER:Brendan Darcy

DATE:4 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 February 2019 at 4:43pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – genuine student – long period of non-compliance – 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 16 February 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 on the basis that the grounds for cancellation of the student visa outweighed the grounds for not cancelling this visa. 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, a citizen of Nepal, provided evidence via teleconference before the Tribunal on 13 November 2018 to give evidence and present arguments.

4. At the end of the scheduled hearing, the applicant was provided with an opportunity to provide a post hearing submission by 20 November 2018 . On 20 November 2018, the applicant submitted a written submission, a statutory declaration dated 24 June 2015, a video, screenshots of the applicant’s bank account and a request for release letter from an education provider.

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.

9. The applicant was grand a Class TU Subclass 573 visa for higher education purposes on 14 June 2014 and arrived in Australia on 31 July 2014. The visa was set to expire on 30 August 2017.

10. According to the decision record, Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study since 32 April 2016.  During the scheduled hearing, the applicant stated that when he first arrived he had enrolled in an ELICOS course and a Diploma of Media and Communication at MIBT which he both completed. He also stated that he was enrolled in a Bachelor of Arts (Media and Communications) at Deakin University which he did not begin. He said that he cancelled that enrolment in favour of a Bachelor of Professional Accounting at Holmes College which he began and did not complete.

11. The applicant further stated at the scheduled hearing that he did not re-enrol in any further studies in the period up to the date of cancellation and he did not deny that he was not enrolled between 21 April 2016 and the date of cancellation.

12. The Department validly issued a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant on 30 January 2017 by post. The applicant was invited to comment within five working days.

13. On 3 February 2017, the applicant provided a written response to the NOICC invitation.

14. The delegate proceeded to cancel the applicant’s student visa on 16 February 2017.

15. The applicant applied to have the cancellation decision reviewed on 20 February 2017 with the decision record attached.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course commensurate with a Subclass 573 visa between 21 April 2016 and 16 February 2017.

17. Accordingly, the applicant has not complied with condition 8202(2) and under s.116(1) of the Act, the visa may be cancelled.

    Consideration of the discretion to cancel the visa

18. 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’.

19. When the applicant responded to the invitation to consider cancellation of his visa on 3 February 2017, he provided a written statement. Below is a summary of that response:

    ·     The applicant was overwhelmed with the opportunity and expectations to complete his coursework for a Bachelor of Arts at Deakin University in Australia and to return to Nepal;

    ·     He had the responsibility of the family – his mother and two sisters - to do well since his father, a former member of the Nepal army, was killed by Maoists during the Nepali civil war;

    ·     The applicant had difficulties in studying for a year at Deakin College and could not do much due to the new education environment;

    ·     As many of his friends changed university, he decided to do the same and applied to enrol at Holmes College to complete an accounting degree;

    ·     The applicant claimed that things have never progressed well for him and sometimes he felt like giving up and he has faced challenges since he was young since he lost his father;

    ·     However, he is feeling a bit happy at the time of writing this response and has a feeling he can achieve his dreams of graduation from an Australian university but fears he will be wasting time and money for the lost time; and

    ·     My mother and my sister will not forgive me ever if they found out that he was going to return without an Australian degree and he will regret for the rest of his life.

20. As discussed in the hearing, the applicant had voluntarily departed Australia in October 2018 and provided evidence from his country of nationality via teleconference. 

21. On 20 November 2018, the applicant submitted a written submission, a video, screenshots of the applicant’s bank account and a request for release letter from an education provider.

22. The letter of release was dated 26 July 2015. It mentioned that the applicant sought to change education providers and coursework because the applicant could not cope with the unfamiliar education system, because he felt the a bachelor degree in the business field would have more opportunities for him and because his family was affected by natural calamities back in Nepal in which the family wants to change to an education provider with more affordable tuition fees.  The Tribunal notes these reasons are identical in the statutory declaration dated 24 July 2015.

    The purpose of the visa holder’s travel to and stay in Australia

23. According to the decision record, the delegate gave little weight with towards the applicant remaining in Australia for study purposes.

24. The Tribunal accepts the applicant has completed some course work but he had admittedly not significantly advanced a degree level course work. The applicant stated that he has consistently stated that he wanted to complete a degree in media and communications (and specifically photography and videography) as this is where his passion and interest lay. Indeed he claimed he wanted to make movies.  The applicant further explained that he moved to a Bachelor in Professional Accounting because he had difficulties in the study environment, due to the affordability of the tuition fees and because there were more opportunities arising from this discipline for which he had shown some aptitude since secondary school. This was reflected in the submitted 2015 statutory declaration and a letter of release. The applicant provided some evidence of his videography in his post hearing opportunity as evidence of his personal passion. (Although there was no attempt at editing in the video, which the Tribunal finds curious given editing is crucial to movie-making).

25. Overall the Tribunal accepts that the applicant genuinely has a personal interest in media and communications but the Tribunal finds it troubling that although he had the strong desire to follow this disciple he found the study environment beguiling. The Tribunal accepts that the applicant is a genuine student whose purpose was to study full time in Australia and it gives the applicant’s responses considerable weight in favour of the visa in not remaining cancelled.

    The extent of compliance with visa conditions

26. The delegate consider the non-compliance with condition 8202 to be significant but the decision record does not mention any further visa conditions had been breached. During the scheduled hearing, the applicant stated that he did not breach any other visa conditions. While the Tribunal finds the extent of time – more than ten months - for non-compliance with condition 8202 to be considerably serious, it places some weight on the applicant’s lack of overall non-compliance with visa conditions in favour of the visa not being cancelled. 

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

27. In the applicant’s NOICC response, he stated that mother and my sister will not forgive me ever if they found out that he was going to return without an Australian degree; that he feared wasting time and money; and that he will regret not completing the coursework if his visa remains cancelled.

28. The delegate’s decision accepted that there may be some financial and other hardships as a result of the cancellation.

29. During the scheduled hearing, the applicant who had returned to Nepal claimed that he could enrol to study in Nepal and that his family would be happy if studies in Australia, Nepal or somewhere else. He said his family members who placed much expectation on him had accepted he has not finished the coursework. He did not advance that he would experience any great emotional or financial or psychological hardship if the visa remains cancelled and that it was preference to complete studies in Australia. The Tribunal accepts the applicant will experience some emotional disappointment if the visa remains cancelled but based on the applicant’s own testimony at the scheduled hearing from Nepal, the applicant has demonstrated any hardships that amount to significant or severe hardship if his visa were to remain cancelled. The Tribunal accordingly gives these factors a little weight towards the visa not being cancelled.

    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.

30. According to the decision record, the delegate accepted that the applicant may have faced difficulties maintain his enrolment and that international students face any adjustments and challenges when studying and living in Australia. The delegate found that the stated intention to be full time student does not mitigate the visa breach that has occurred and accordingly placed only minimal weight in favour of the visa not being cancelled. Neither did the delegate find that a combination of family expectations and studying pose a potential deterred to maintaining his commitment to full time study in the long term.

31. At the scheduled hearing, the applicant claimed that he had paid an agent to pay for his tuition fees at Holmes College; however when he went to the college they had not record of the receiving any fees and they would not allow him to make a later enrolment. There is no evidence of any complaint against migration or education agent, despite being given the opportunity to do so. The applicant however said that he provided a screenshot dated 19 May 2016 of his communication with the Holmes College as evidence of these difficulties. The Tribunal accepts this as supportive evidence of the applicant struggling to meet tuition fees. When the Tribunal asked if he could looked into enrolling in another college, the applicant claimed he could not find one. When the Tribunal asked if tried to may alternative funding arrangements for tuition fees such a loan, he claimed he did not understand that he could to that at the time of non-compliance.  Even in accepting the applicants had difficulties with his education or migration agent or with education provider who refused his request for a new enrolment, the Tribunal notes the market place for enrolments is very wide in Australia and it does not accept the applicant was unable to find another enrolment to mitigate his non-compliance with condition 8202, by seeking deferral or by finding alternative financial arrangements.

32. The applicant undertook to provide evidence that he contacted his education provider about his difficulties in not being able to remain enrolment with education provider. However he provided a copy of a release and statutory declaration from 2015. These were written reasons for the applicant to change education providers – and not about his difficulties in being maintaining his enrolment.  Nevertheless, the Tribunal notes that that there is a consistent thread of written and oral evidence that the applicant’s family was adversely impacted upon by a natural calamity to be found credible.

33. However the submitted evidence indicates that the applicant changed education providers because it was more affordable and not because it was unaffordable. While the Tribunal accepts that the financial capacity of the applicant’s family to meet tuition payments was either directly or indirectly impacted upon by earthquakes in Nepal, there is no evidence that the applicant sought deferral or suspension of studies at the time of non-compliance arising these otherwise extenuating circumstances.   The Tribunal places minimal weight on these circumstances explaining the applicant’s non-compliance but it does not accept they were beyond the applicant’s control leading to the applicant being non-compliant with condition 8202.

34. With regards to the documentary, written and oral evidence before the Tribunal, it accepts the applicant lived with a level of high family expectations. However, the applicant failed to demonstrate as to how this operated as a barrier - and not a motivator - to the applicant remaining enrolled over such a long period of non-compliance, let alone as a student visa holder.

35. Neither was the applicant able to demonstrate to the Tribunal that the learning and living in environment in Australia was as onerous or as unfamiliar as to amount to extenuating circumstances beyond his control, especially after he had applied to change enrolment to coursework in 2015.

36. Taking all these factors into account, the applicant has not demonstrated that over a long period of non-compliance the extenuating circumstances were so exceptional or beyond the applicant’s control in remaining compliant to condition 8202(2) that led the grounds existing for the visa’s cancellation. The Tribunal places only a minimal weight based on these factors, cumulatively considered, in favour of the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

37. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

38. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

39. At the time of the hearing, the applicant was physically in his country of nationality, Nepal. If the visa remains cancelled, the applicant was aware that may be barred for up to three years from re-entering Australia. However he did not offer any specific comment about this mandatory legal consequence. Accordingly the Tribunal gives this some weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

40. During the scheduled hearing, the applicant did not claim to have any immediate dependent. Accordingly the Tribunals give this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

41. At the time of the hearing, the applicant was providing evidence from Nepal via teleconference. The Tribunal enquired if the applicant was safe. He claimed he has no problems with the authorities arising from his father’s death by Maoists since his father was killed when he was eight years of age. He said there was no military service in Nepal. Although he mentioned the earthquake in Kathmandu had affected his family’s house, the Tribunal notes that he voluntarily returned to that residence.  Noting that the applicant voluntarily returned to Nepal in 2018 and did not advance any claims of harm relevant to any of Australia’s international obligations, the Tribunal does not gives these factors any weight in favour of not cancelling the visa.

    Any other relevant matters

42. The applicant also claimed that he was immature while in a different country and learning environment and that this should be taken into account. The Tribunal concurs with the applicant and it places a minimal weight of these aspects of the applicant’s background in favour of the visa not remaining cancelled.

    Conclusion

43. In this matter, the Tribunal accepts the applicant’s purpose for travel to Australia for the purpose of studying full time. However the applicant failed to demonstrate the seriousness of his significant non-compliance with condition 8202 had been mitigated by the accepted extenuating circumstances which the Tribunal assessed as not being beyond his control. Neither did he demonstrate that the applicant will face any significant or severe hardships arising from this cancellation or the cancellation’s mandatory legal consequences.

44. Overall the grounds for maintaining this visa’s cancellation significantly outweighed those factors in favour of the visa being reinstated.

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

    DECISION

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

    Brendan Darcy
    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.