Tamang (Migration)

[2020] AATA 2559

Tamang (Migration) [2020] AATA 2559 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dipen Tamang

CASE NUMBER:  1921107

HOME AFFAIRS REFERENCE(S):          BCC2019/1535247

MEMBER:Vanessa Plain

DATE:28 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 28 May 2020 at 3:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – cancellation of three most recent courses – financial issues – application for visas to work in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140, 359AA
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 failed to maintain enrolment is a registered 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 5 May 2020 to give evidence and present arguments.  

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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

8. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 3 November 2016 for the purpose of undertaking an Advanced Diploma of Leadership and Management and a Bachelor of Business at Holmes Institute.  The education provider cancelled the applicant’s enrolment on 18 June 2018 and he has not been enrolled in a registered course since that date.

9. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 21 June 2019.

10. The applicant responded to the NOICC in writing on 16 July 2019.  However, the substance of the applicant’s response does not address the information contained the NOICC.  The applicant merely expressed concern that documents may have been provided to a previous address and he provided updated residential address details, phone number and email address.  The applicant did not provide reasons why the visa should not be cancelled.

11. At the hearing, the applicant gave the following sworn evidence:

    ·He stopped going to class at Holmes Institute because he was stressed, his stress was due to the financial hardship that his family were enduring in his home country, as a result of the major earthquake there; 

    ·The financial hardship caused by the earthquake caused him difficulty in paying for his course.  He had to find a job.  The reason his enrolment was cancelled by Holmes was because he couldn’t pay the course fees; 

    ·He obtained a COE at Queensforth College in Brisbane in late 2017.  He studied a Diploma in Hospitality Management and he went to class 2 days per week;

    ·It is his own fault that he breached the visa, he has studied many courses in Australia;

    ·In 2015, he was working in a restaurant in Southbank and studying a Certificate IV in Commercial Cookery.  He commenced the application process for a 457 visa, but that fell through because the restaurant closed down;

    ·In 2017 he was working at another restaurant, called Istanbul Holdings in Hawthorn, Brisbane. At that stage he wanted to apply for another 457 visa, but he did not end up doing so;

    ·In 2018, he wanted to apply for a regional sponsorship visa, he went for a job interview for the purpose of seeking to obtain a regional sponsorship visa.  The employment opportunity was at the Springhill Hotel in Brisbane.  He said the business was waiting for a liquor licence, he gave his papers to a lawyer, but he didn’t end up proceeding with the visa application because the rules changed;   

12. Based upon the above evidence, the Tribunal had some concern about the applicant’s study history in Australia.  The Tribunal reviewed the department file during the hearing, which contained a copy of a PRISMS search dated 30 July 2019.  The PRISMS search provided, among others, that the applicant’s three most recent courses that he was enrolled in, had all been cancelled.  Those courses were:

    ·An Advanced Diploma of Hospitality and Management

    ·An Advanced Diploma of Leadership and Management

    ·A Bachelor of Business

13. Adopting the procedure in section 359AA of the Act, the Tribunal explained to the applicant that it had reviewed the PRISMS record.  The Tribunal explained the nature of the PRISMS record and the nature of the information in the PRISMS record, namely, information that suggested that the applicant’s three latest courses had all been cancelled.  It explained why that information was relevant and the consequences of relying on the information.  The Tribunal invited the applicant to comment or respond and further asked the applicant whether he would like more time before he comments or responds. 

14. The applicant informed the Tribunal that he did not need more time, he said that he knew he had breached his visa condition, he said that he had been through these courses and the reason he stopped being enrolled was due to financial reasons.  He said that after the earthquake happened in his country, everything went down hill financially. 

15. The applicant stated further that he agrees and accepts that he has made mistakes, but that these mistakes occurred due to the financial crisis.  He said that he hasn’t seen his family in 7 years because he cannot afford the plane ticket home.  He said that he has nothing at home and it is his dream to be in Australia.  He wants one last chance as his whole family is depending on him. 

16. The Tribunal asked the applicant why he wants to study more given his extensive history as set out above, that is, his history of wanting to apply for other visas that enable him to work in Australia.  He stated that since 2015 he has wanted to study automotive engineering.

17. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 18 June 2018 onwards and on that basis, he has not complied with condition 8202(2)(a).

    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.

19. 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’.

    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      

20. The applicant’s current visa was granted for the purpose of undertaking study in an Advanced Diploma of Leadership and Management and a Bachelor of Business.  Prior to the visa grant, the applicant has, since 2015, undertaken various other courses in Australia, most of which he has not completed.  He did however complete a Certificate in Commercial Cookery. 

21. It is clear based on the matters set out above, that the applicant has demonstrated some academic success while studying in Australia.  It is also clear that based upon the applicant’s evidence, he is desirous of working visa that will enable him to work in Australia, so that he may assist his family financially. 

22. Based on the above information, the Tribunal considers that the applicant’s purpose for being in Australia ended on 18 June 2018 when he ceased to be enrolled in a registered course and the period of time of non enrolment is substantial in the circumstances.     

23. The Tribunal gives these considerations some weight towards the visa being cancelled.     

    The extent of compliance with visa conditions

24. The applicant has not complied with condition 8202(2)(a).  The applicant has provided reasons for the breach which are set out above, namely, that due to financial stress he was unable to pay his course fees to maintain enrolment.       

25. The Tribunal acknowledges that there is no evidence before it other a breach of other visa conditions.  However, the Tribunal considers that the requirement to maintain enrolment is integral to the grant of a student visa.  When applicant’s apply for student visas, they warrant to the Department that they have sufficient funds to cover their tuition and living costs.  The Tribunal is therefore not satisfied that the failure to maintain enrolment is due to a reason that is beyond the control of the applicant.

26. The Tribunal gives this consideration some weight in favour of the visa being cancelled.

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

28. The applicant gave evidence that he will suffer severe hardship if his visa is cancelled, because he is the eldest son in his family and it is his responsibility to support his family.  He said he wants to finish his education so he can return to his home country with a qualification.    

29. The Tribunal acknowledges that the applicant will suffer some hardship if the visa is cancelled, he will not be able to complete his course and his parents will be disappointed and this will place stress upon him as an eldest son.  There are no family members in Australia reliant upon the applicant’s visa.    

30. Based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

31. The ground for cancellation arose because the applicant failed to maintain enrolment in a registered course from 18 June 2018 onwards.  The applicant has provided reasons for his non compliance with the visa condition as set out in paragraphs 11 and 14 above.

32. As set out above, when an applicant for a student visa applies to the Department for that visa for the purpose of studying in Australia, the applicant warrants in their application form, that they have sufficient funds to cover to the cost of the course tuition and living expenses for the duration of their proposed course.  For this reason, the Tribunal cannot be satisfied that the reasons for the breach of the visa condition arose out of circumstances that were outside of the control of the applicant. 

33. The Tribunal therefore finds that the reason for the breach of the visa condition was reasonably within the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

34. The applicant has conducted himself in good faith in his dealings with the Department.  He responded to the NOICC and was concerned to ensure the department had his correct contact details. I give this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

35. There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled.  The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.    

    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

36. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country.  However, these are mandatory consequences of the legislation and in view of the fact that I have found that the reason for the breach of the visa was reasonably within the control of the applicant, I give this little weight in favour of the visa not being 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

37. Not applicable.

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

38. Not applicable.

    Any other relevant matters

39. There are no other relevant matters for consideration.    

40. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.

41. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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

    DECISION

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

    Vanessa Plain
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.