Thakuri (Migration)

[2019] AATA 880

Thakuri (Migration) [2019] AATA 880 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saurav Thakuri

CASE NUMBER:  1713385

HOME AFFAIRS REFERENCE(S):           BCC2017/1198970

MEMBER:Joseph Lindsay

DATE:7 February 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 07 February 2019 at 2:46pm

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 – circumstances giving rise to ground for cancellation – mother’s health issues – financial circumstances – 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 15 June 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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 was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on Thursday 7 February 2019 at 1:00pm.

4. The applicant attended the hearing. The applicant indicated that he did not require the assistance of an interpreter. The applicant was not represented.

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. In the hearing, the applicant admitted that he had not remained in a registered course of study since 2 September 2016 and in doing so he had breached condition 8202(2)(a). 

10. 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)(a).

    Consideration of the discretion to cancel the visa

11. 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’.

    Delegate’s decision record

12. The Tribunal put to the applicant that he had provided a copy of the delegate’s decision record to the Tribunal and asked whether the information in the decision record was correct. In response, the applicant indicated that the information in the delegate’s decision record was correct and accurate.

    Student history and PRISMS record

13. The Tribunal asked the applicant about his student history. In response, the applicant indicated that he had been in Australia since 2007 and in those 12 years he had completed a number of courses, including in accounting, cookery and business. The applicant indicated his most recent course was a Bachelor degree in Information Technology (IT).

14. The Tribunal considered the applicant’s Provider Registration and International Student Management System (PRISMS) record and put to the applicant that what he had told the Tribunal about his student history appeared to be true. The applicant’s student history as he told the Tribunal was accurately reflected in the applicant’s PRISMS record. The Tribunal finds that there is no adverse information in the applicant’s PRISMS record and there was no need to put the information in the PRISMS record to the applicant in accordance with s359AA of the Act.

    The circumstances in which the ground for cancellation arose

15. The Tribunal asked the applicant what the circumstances were when the applicant allowed his course enrolment to cease in 2016. In response, the applicant indicated that his mother had heart trouble and, because he had to provide financial support for her situation, he could not pay his student fees. However, the applicant indicated he had no documentation to support any of his claims.

16. The Tribunal indicated to the applicant that he reasonably knew he had provided a financial guarantee that he would have sufficient financial support to enable him to undertake his studies. The applicant acknowledged that he did provide a financial guarantee. He indicated that he could not manage his money at the time.

17. The applicant claimed he completed one semester of his Bachelor degree in IT, but he indicated he had no documentation to support his claims.

18. The applicant also indicated that when his course enrolment ceased in 2016 he was suffering from mental health issues. However, the applicant indicated he had no documentation with him to support his claims.

19. In consideration of the above, the Tribunal accepts that the applicant’s family circumstances caused his some difficulty in 2016. However, given the financial guarantee that the applicant provided, the Tribunal places low weight on the applicant’s submissions in this respect.

20. Due to a lack of documentary supporting information, the Tribunal does not accept the applicant’s claim that that when his course enrolment ceased in 2016 he was suffering from mental health issues

21. In consideration of the above, the Tribunal does not accept that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are exceptional circumstances.  The Tribunal is not convinced by the applicant’s submissions that his personal circumstances in 2016 caused him not to be enrolled in a registered course of study. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    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

22. During the hearing, the applicant claimed he wanted to stay in Australia because he wanted to do further study and become a sound engineer.

23. 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

24. 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)

25. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship primarily because it would cause him economic hardship and it would impact on his family.

26. In consideration of the above, the Tribunal accepts that the applicant may experience some hardship as he has described. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

27. 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

28. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa. The Tribunal places low 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

29. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

30. In response the applicant indicated he was aware of this potential impact on him.

31. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

32. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. 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 chose not to return to Nepal.

33. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

34. 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

35. 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

36. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated that he had no other relevant matters to raise with the Tribunal.

    Conclusion

37. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 1 February 2016, now nearly three years ago, the applicant has not completed any higher education courses.

38. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 2 September 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

39. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

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

    DECISION

41. 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.