THAPA (Migration)

[2020] AATA 511

THAPA (Migration) [2020] AATA 511 (17 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhurba THAPA

CASE NUMBER:  1828418

HOME AFFAIRS REFERENCE(S):          BCC2018/1503928

MEMBER:Mark O'Loughlin

DATE:17 February 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 17 February 2020 at 9:43am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) Subclass 573 Higher Education Sector – not enrolled in registered course – applicant cancelled enrolment – need to stay in Australia motivated by work – changed study pathways – no evidence of hardships – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cls 573.223, 573.231, r 1.40A

CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 19 September 2018 a delegate of the Minister for Home Affairs decided to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).  The applicant has applied to the Tribunal for a review of that decision.

2. The delegate cancelled the visa under s.116(b) on the basis that the applicant had not complied with condition 8516 of his visa because he had not continued to be a person who would satisfy the visa’s primary criteria. The issue for the Tribunal 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 6 February 2020 to give evidence and present arguments.

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

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 (and thereby a person making a decision on the Minister’s behalf) may cancel a visa if satisfied that certain grounds specified in that provision are made out. If so satisfied, the decision maker must then proceed to consider whether the visa should be cancelled having regard to all the relevant circumstances, which may include matters of government policy.

7.      In undertaking this review the Tribunal has had regard to the applicant’s oral evidence and to the decision of the delegate dated 19^th of September 2018, a copy of which was provided to the Tribunal by the visa holder. Tribunal has also had regard to submissions prepared by the applicant dated 30 January 2020 and annexures thereto including the applicant’s diploma of business certificate, a letter from his employer, the Greenery Cronulla, and confirmations of enrolment (CoE’s) obtained by the applicant on 28 January 2020.

8.      The Tribunal has also had regard to a statement provided by the applicant apparently in response to the notice of intention to consider cancellation and appearing at Folio 16 of the departmental file, and an email sent by the applicant attaching a statement from his parents appearing at Folio 19.

9.      Tribunal has not had regard to any other documents in making this decision.

Does the ground for cancellation exist?

s.116(1)(b) - non-compliance with conditions

10. A visa may be cancelled under s.116 (1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa is the condition under consideration.

11.       Condition 8516 requires a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

12.       The holder was granted the visa on 20 June 2016 and at that time he was found to satisfy the primary criteria for the grant of a Higher Education Sector (Student) (subclass 573) visa.

13.       In respect of a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

14.       Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.223(1A) or cl.573.231.

15.The applicant can satisfy cl.573.223(1A) if he is an “eligible higher degree student”.  The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or an advanced diploma in the higher education sector: cl.573.111.

16.To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015.

17.The applicant gave evidence, which the Tribunal accepts, that he came to Australia on 25 June 2016 intending to study Information Technology.  He had enrolled in a Diploma of Information Technology which was due to take about a year and he had also enrolled in a Bachelor of Information Technology to follow the Diploma.

18.He told the Tribunal, and the Tribunal accepts, that soon after he started the Diploma he changed his mind about studying information technology.  He cancelled his enrolments in both the Diploma and the Bachelor of Information Technology.  He enrolled instead in a Diploma of Business.

19.He did not enrol in any other courses.

20.He said that he did not understand at the time that cancelling his enrolment in the Bachelor degree would breach a condition of his visa.  He said that he did not realise that there was a problem until he received a notice of intention to consider cancellation of his visa, which was sent to him on 24 July 2018.

21.The Tribunal finds that the applicant cancelled his enrolment in the Bachelor of Information Technology in about November 2016.  The Tribunal finds that the applicant enrolled in a Diploma of Business but that he did not enrol in any Bachelor degree.

22.The Tribunal has regard to the certificate that the applicant received on completion of his Diploma of Business and finds that that was a Diploma (Vocational Education and Training) level course for the purposes of IMMI 14/015.

23.The Tribunal finds that from the time he cancelled his enrolment in the Bachelor of Information Technology in about November 2016 until the delegate cancelled his visa in September 2018 he no longer satisfied the definition of an “eligible higher degree student” and did not satisfy cl.573.223(1A).

24.The Tribunal further finds that from the time the applicant cancelled his enrolment in the Bachelor of Information Technology until the delegate cancelled his visa, he was not enrolled in a course specified for Subclass 573 visas by the Minister in an instrument.  On that basis the Tribunal finds that the applicant did not satisfy cl.573.231.

25.The applicant gave evidence that he now understands that he had breached a visa condition.

26.The Tribunal finds that from the time the applicant cancelled his enrolment in the Bachelor of Information Technology he was in breach of condition 8516 of his visa, and he remained in breach of that condition until the visa was cancelled in September 2018.

27.For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

28.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’.

29.The applicant told the Tribunal that after he cancelled his studies in information technology he did a Diploma of Business and then an English course.

30.He finished the English course and enrolled in a Certificate 4 in Commercial Cookery to be followed by a Diploma in Hospitality.

31.The applicant agreed that the time of the delegate’s decision in September 2018 he was doing the Certificate 4 in Commercial Cookery.  He told the Tribunal that at the time of the hearing he still had 2 months to go to finish the Certificate 4. There was a delay because his CoE was cancelled after the delegate cancelled his visa and he had to arrange for study rights.

32.The applicant said that if he regains his visa he then proposes to finish the Certificate 4 and then do his Diploma of Hospitality Management then a Graduate Certificate in Management to start in November 2020 and go for a year followed by a Graduate Diploma of Strategic Leadership to start in January 2022 a finish on 29 January 2023.

33.The applicant advised that when he came to Australia he was allowed to do 20 hours per week of work and that he got a job in as a kitchen hand.

34.He said that after working as a kitchen hand for about 8 months he started working as a cook. He said that he enjoyed the work and got on well with his employer. He said he still works at the same restaurant and that he does 20 hours a week but more on college holidays, as allowed by his visa.

35.He said that he generally makes about $500 per week and a bit more when he is on college holidays.

36.He said that his family initially resisted his choice to pursue cooking as a career but that they now support him.  The Tribunal accepts this evidence.  The applicant gave further evidence that his father has worked as a manager in a restaurant in India and they plan to run a restaurant in his home in Nepal.

37.He said that despite his father’s knowledge of management he thought it was important that he have management skills himself because they will be targeting the tourist market in Nepal and his father does not speak good English.

38.The applicant said that he believes it will cost the equivalent of about AU$60,000.00 to build a restaurant in Nepal and that he believes he can get finance from the bank. The applicant said that he has not made enquiries about finance or investigated the cost of building because he has not yet finished his study.

39.The applicant said that he has a relative who he described as his “cousin brother” who lives in Sydney and to whom the applicant has been able to go for assistance occasionally when he needed it.

40.The applicant said that his family in Nepal have supported him as well and that he thinks he has paid a total of about $15,000 for his college fees. He is not sure how much has come from his family although he thinks he has been able to cover the majority from his wages.

41.He is not expected to repay his family and the applicant did not suggest that cancellation of his visa would result in financial hardship for him or his family.

42.He did think that if the visa is cancelled at this stage he will have wasted the time that he spent studying.

43.He was asked if he could do the same study in Nepal and said that he wanted an international degree because he wanted to bring a new taste to Nepal.

44.He said that he believed that such a restaurant with a new taste would be successful but he had not done any research and said that he would do that after he had his qualifications.

45.The Tribunal asked what he would do if research suggested that his plans were not likely to be successful. He said that he does not want to quit the field and would pursue the international degree anyway.

46.He said that if he is not allowed to complete his study he will suffer and lose his dreams and that his family, who dream that their son will be successful, will suffer hardship by reason of denial of that dream.

47.Having regard to the applicant’s reasons for travelling to and staying in Australia, the applicant has given evidence that he intends to return to Nepal to open a restaurant but he has not undertaken any research into the cost of doing so and the likely returns from a restaurant.

48.The Tribunal also notes that the applicant proposes about 3 further years of study although the Tribunal finds that he was not able to give a clear indication of what benefit he would derive from this further study.

49.Tribunal is not satisfied that the applicant’s travel to and stay in Australia is mainly motivated by a need to study and finds that the work he has been doing forms part of the motivation for the applicant to stay in Australia. The Tribunal accords this factor some weight towards cancellation of the visa.

50.The Tribunal notes that the applicant did not comply with the relevant visa conditions from November 2016 to September 2018. The Tribunal finds that this is a substantial breach. The Tribunal accords this factor significant weight in favour of cancellation of the visa.

51.The Tribunal has considered whether hardship may be caused to the applicant or to his family if his visa is cancelled. The Tribunal accepts that the applicant and his family may be disappointed if the applicant has to return to Nepal but the applicant does not say that he will be unable to complete his study or that he will be unable to open a restaurant if his visa is cancelled.

52.The Tribunal is not satisfied that the applicant or his family will suffer hardship in the event of cancellation of his visa and accords this factor no weight against the cancellation of the visa.

53.In relation to the circumstances in which the ground of cancellation arose the Tribunal notes that the applicant freely stated that he was not aware that cancelling his enrolment in the Bachelor course was a breach of a condition of his visa.  The ground of cancellation was not outside the applicant’s control. The Tribunal accords this consideration no weight against the cancellation of the applicant’s visa.

54.There is no evidence of past or present behaviour of the visa holder towards Department that would suggest that his visa should be cancelled. The Tribunal accords this factor a little weight against cancelling the visa.

55.The Tribunal accepts the applicant’s evidence that there will be no consequential cancellations of visas under s. 140 of the Act if his visa is cancelled.

56.If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

57.He will need to apply for a bridging visa or a permanent visa to remain in Australia.  If he is not granted a visa he and does not leave voluntarily he will become liable to detention under section 189 and to removal under section 198.

58.Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be ineligible for the grant of another visa to Australia for 3 years after the cancellation of the Student visa.

59.There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

60.The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

61.The Tribunal has weighed the considerations set out above together and finds that the applicant changed his study pathway without giving any attention to whether or not such change was in breach of his visa conditions.  It has, at all times, been the applicant’s obligation to ensure that he complied with his visa conditions and during the time of his breach he had no regard to that obligation.  There is no evidence that the applicant will suffer relevant hardship if his visa is cancelled and in particular the Tribunal notes that the applicant’s insistence that he wants and international qualification, even if it proves that it will be of no benefit to him, does not support any suggestion of hardship.

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

DECISION

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

Mark O'Loughlin
Member