Tamang (Migration)

Tamang (Migration) [2020] AATA 53 (9 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amrit Tamang
CASE NUMBER:  1825625
HOME AFFAIRS REFERENCE(S):          BCC2018/1913389
MEMBER:Joseph Lindsay
DATE:9 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 09 January 2020 at 3:28pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – change of course – lack of financial resources – not currently studying – 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

This is an application for review of a decision dated 28 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 19 December 2019 to give evidence and present arguments.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant confirmed that the information in the delegate’s decision record, as he had provided to the Tribunal, was correct.
The Tribunal asked the applicant if it was correct that he had not been enrolled in a registered court of study since 9 October 2017, to which the applicant responded that this information was correct.
On the evidence before the Tribunal, the Tribunal finds that the applicant had not been enrolled in a registered court of study since 9 October 2017 and the applicant has not complied with condition 8202(2).
Accordingly, the Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers’.
The circumstances in which the ground for cancellation arose
In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered court of study since 9 October 2017.
In response he indicated that he was studying courses his parents wanted him to study, but he wanted to do dancing, he had different interests and he was not interested in studying accounting.
The Tribunal put to the applicant that he had come to Australia on a 573 higher education visa, but that the applicant indicated he had lost interest in undertaking tertiary study and he wanted to dance instead. The Tribunal asked the applicant why he did not approach the Department with his situation, and seek a visa under which he was able to study dance (vocational education) instead of a tertiary course of study. In response he thought he spoke to his agent. The Tribunal put to the applicant that it was his responsibility as the visa holder to maintain compliance with his visa conditions and that even though he had an agent it was his responsibly to ensure that the Department was informed of his circumstances. In response, the applicant said it was his fault.
The Tribunal put to the applicant that he ceased to be enrolled on 9 October 2017 but it was not until 16 August 2018 that he got the Notice of Intention to Consider Cancellation (NOICC) from the Department – a substantial period of time in which he had failed to advise the Department of his circumstances. The applicant did not wish to say anything in response.
The Tribunal spoke with the applicant about his response to the NOICC dated 22 August 2018 that states:
Thank you for your email and for providing me opportunity to respond to intention to consider cancelling my student visa.
As stated in the letter, I have not been enrolled in any course since October 2017. Before that I was enrolled in Diploma in Information Technology in Strathfield College. However due to loss of interest in the field of studies (since it was not my chosen faculty of education) I did not keep up with the progress.
I was enrolled in that subject as my parents wanted me to study one of the mainstream area of expertise which would help me land a job easily after completion. Their advice played a vital role as they were supporting me financially and morally too. But I couldn't focus and was not keen to learn although I had been enrolled in that subject.
Lost and confused, I left my studies and carried on with life without taking much effort to maintain condition. The email from department played role of eye opener. I take responsibility for my carelessness and seek consideration from department. I conveyed my situation to my parents and they were distressed at first but have been supportive after I expressed my lack of interest in their chosen faculty of education. They are happy for me to follow my own path as long as I do well and they have assured support as needed.
I have since receiving this letter, made efforts to obtain enrolment in my chosen field of education which is 'Certificate iii and iv in Dancing (please find evidence attached-necessary payment has been made for COE which will be provided if requested). This is my chosen field of expertise and I wish to work as a professional Dancer. I am really keen to start my studies and assure you I will maintain my visa condition if you consider my appeal to not cancel it. I wish to return to my home country with a qualification so that I can repay my parents for all that they have done.
The Tribunal asked the applicant if he had done any study since he wrote his response to the NOICC in August 2018, and in response the applicant he had not done any study (in dance or otherwise) since he wrote his response to the NOICC in August 2018.
He indicated he does freestyle dance and helps out friends with random choreographies.
The Tribunal asked the applicant why he wanted to be a dancer and he responded that he wanted to make people happy but his parents do not support him in his wish to be a dancer. The Tribunal noted the letter of offer for the dance course. However the applicant indicated he did not do the course (costing about $15,000) or any other dance course.
The Tribunal spoke with the applicant about his ability to financially support himself and pay for his studies. The applicant assured the Tribunal that he could financially support himself and pay for his studies because he was working as a bartender. The Tribunal asked the applicant if he was supporting anyone back in Nepal, and in response he said he did not really have much money for himself and so he could not send money to anyone back in Nepal.
In respect of the above, the Tribunal makes the following findings. The Tribunal accepts that the applicant wants to dance rather than study accounting. However, the Tribunal finds that it was the applicant’s responsibility as the visa holder to maintain compliance with his visa conditions and that even though he had an agent it was his responsibly to ensure that the Department was informed of his circumstances – yet he failed to maintain compliance with his visa condition 8202 or inform the Department of his circumstances. The Tribunal accepts that the applicant is working as a bartender but he does not have much money for himself. Accordingly, the Tribunal does not accept that the applicant has access to sufficient financial resources to pay his course fees.
In all the circumstances as detailed above, the Tribunal does not accept that the applicant took reasonable steps to maintain compliance with his obligation to remain enrolled in a registered course of study under visa condition 8202. Accordingly, the Tribunal places high weight on this information against the applicant.
In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances. Accordingly, the Tribunal places high weight on this information against the applicant.
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
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.
The applicant indicated that if he went back to Nepal, he would have to start again. He indicated that his parents would be disappointed in him that he did not get a qualification or a certificate whilst he was in Australia.
In respect to the above, the Tribunal accepts that if the applicant’s student visa was cancelled and he returned to Nepal, he would incur some hardship in the sense that he would have to start again and that his parents would be disappointed in him that he did not get a qualification or a certificate whilst he was in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour.
Past and present behaviour of the applicant towards the Department
There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
The applicant does not have dependents on his student visa who would be affected if his student visa was cancelled.
Accordingly, the Tribunal places no weight on this information in the applicant’s favour.
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
The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Nepal.
The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation and that section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal places low weight on this information in the applicant’s favour.
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
The applicant indicated he had nothing to fear in returning to Nepal.
In consideration of the above, the Tribunal finds that there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.
Any other relevant matters
No other relevant matters were put to the Tribunal.
Conclusion
The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Joseph Lindsay

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.

[2020] AATA 53

9 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction