Thapa (Migration)

[2020] AATA 489

Thapa (Migration) [2020] AATA 489 (24 January 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Aayush Thapa (‘Applicant’)
CASE NUMBER:		1815550
HOME AFFAIRS REFERENCE:		BCC2018/821278
MEMBER:		Dr Jason Harkess
DATE:		24 January 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 24 January 2020 at 2:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Bachelor of Information Technology – not enrolled in a registered course for eight months – study difficulties – lack of academic progress – multiple course enrolments – enrolment cancelled – failed to seek help – failed to inform course provider and Department of circumstances – family illness – departed Australia permanently – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of Nepal and is 25 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 21 May 2018 cancelling his Subclass 500 student visa pursuant to s 116(1) of the Migration Act 1958 (Cth) (‘the Act’).

Original Visa Grant

1. The Applicant’s visa was granted on 17 October 2016. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

1. The visa had an original expiry date of 24 July 2019 before it was cancelled. It provided for more than two years nine months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.

Reasons for Cancellation

1. The Applicant’s visa was cancelled because the delegate had determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate had found that the Applicant not complied with a condition of his visa. Specifically, the delegate found that the Applicant had failed to comply with that condition of the visa which required him to maintain enrolment in a registered course of study.

1. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

1. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicants when they lodged their review application on 28 May 2018.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the ground for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Determination of Application Without a Hearing

1. By letter dated 18 September 2019, the Tribunal invited the Applicant to attend a hearing on 11 October 2019 at 11:30 AM in relation to his application for review. On 25 September 2019, the Tribunal received an email from the Applicant which stated that he did not intend to attend the hearing that had been scheduled. He stated that he had already left Australia and that he would not be returning.

1. In the circumstances, the Tribunal cancelled the scheduled hearing and has decided to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.[2]

   [2] Section 362B(1A)(a) of the Migration Act 1958 (Cth) permits the Tribunal to proceed to make a decision in such circumstances.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be affirmed in this case.

GROUND FOR CANCELLATION

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted

1. Condition 8202(2)(a) attaches to all student visas and creates a continuing obligation for the duration of the visa.[3] It requires the visa holder to maintain enrolment in a registered course of study.

   [3] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).

1. The imposition of Condition 8202(2)(a) draws attention to the fact that all student visas are issued for the specific purpose of study. The visa holder is legally obliged to adhere to that purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, if they cancel their enrolment in one course they must immediately make arrangements to enrol in another. In that regard, Condition 8202(2)(a) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

Has the Applicant Failed to Comply with Condition 8202(2)(a)?

Delegate’s Allegations and Findings

1. In the delegate’s decision record, the delegate identified the period from 17 August 2017 to 2 May 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than eight months during which the Applicant was alleged to be in continuous breach of the visa.

1. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[4] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued.

Applicant’s Response to Allegations

[4] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

1. Prior to cancelling his visa, the Department of Home Affairs (‘the Department’) wrote to the First Applicant by letter dated 1 May 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the matters that have been summarised above and put the Applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The Applicant was invited to comment before the Department determined whether his visa should be cancelled.

1. The Applicant responded to the NOICC in writing on 7 May 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202 of his visa as alleged, although he sought to explain the circumstances giving rise to the breach.

Conclusion

1. On the available material, it appears reasonably clear that the Applicant let his enrolment lapse as alleged by the delegate. The Tribunal finds that the Applicant breached Condition 8202(2)(a) of his student visa as alleged.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

1. The matters that ought to be considered are specifically listed in PAM3 as follows:

(a)   the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

(b)   the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

(c)   the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

(d)   the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

(e)   the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

(f) whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

(g)   whether there are mandatory legal consequences arising from a decision to cancel the visa;

(h)   whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Ground for Cancellation

1. In his NOICC response, the Applicant sought to explain the circumstances giving rise to his cessation of enrolment. He explained how he had originally arrived in Australia in 2013 to study for a Bachelor of Information Technology at the University of Canberra. He then proceeded to explain the years that followed and his difficulties in making satisfactory progress towards completion of a Bachelor’s degree. He made several attempts. Over a period of approximately five years, the Applicant enrolled in three different Bachelor’s degree courses.

1. First, he enrolled in the Bachelor of Information Technology at University of Canberra as referred to above. That course was supposed to start pm 12 August 2013 and finish on 30 June 2016. After failing to make progress in that, he enrolled in a Bachelor of Information Technology at Southern Cross University. This course was to start on 12 October 2015 and finish on21 October 2017. After failing to make progress in that, he finally enrolled in a Bachelor of Business Information Systems at Australian Institute of Higher Education. This course started in late-2016. In this last Bachelor’s course, he failed every unit in which he was enrolled in his first semester of studies and did not progress any further. It was the cancellation of this enrolment that led to the breach of Condition 8202 of his visa.

1. The Applicant supplied academic records to the Department with his NOICC response which shows this poor pattern of academic progress. The only success the Applicant appears to have had relates to a Diploma of Information Technology Networking which he undertook at ACCIT in October 2014 and successfully completed on 25 September 2015.

1. The Applicant’s NOICC response was largely directed towards explaining how difficult he found studying in Australia. He also made reference to his father having health issues in Nepal. He supplied medical documentation that indicates that the Applicant’s father was hospitalised for 2-3 days in December 2017. The Applicant suggested that his father’s health issues impacted on his ability to study.

1. Regrettably, sickness of family members is an unkind life stressor that everyone must deal with at some point. Non-citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

1. In such circumstances, registered course providers and Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, there is no material before the Tribunal that suggests the Applicant made such an approach. He neither contacted staff at his course provider, nor staff at the Department, to inform them of the personal difficulties he was having.

1. The Applicant’s failure to take steps to seek help, to alert his course provider of his problems, or to alert the Department as to his personal situation has not assisted his case. It is not what a reasonable student visa holder would have done in this kind of situation. His failure to do anything in this regard resulted in an ongoing breach of his visa. It is difficult for the Tribunal to fathom why he chose not to prioritise compliance with his visa conditions by focusing on his studies. There is no psychological evidence, beyond that the evidence of the Applicant himself, that provides an adequate account of his mental state at the time. The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors.

1. In any event, on the material before the Tribunal, the recurring pattern of failure on the Applicant’s part to make meaningful progress towards completion of a Bachelor’s degree, over a period of almost five years, suggests that the cause of the breach of Condition 8202 was not attributable to his father’s ailments. It seems that the Applicant has consistently been unable or unwilling to make effective progress with his studies for reasons that are entirely peculiar to him. The Tribunal is not satisfied that the circumstances that led to the breach of Condition 8202 were out of the Applicant’s control. This weighs heavily in favour of his visa being cancelled.

Purpose of First Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, was to study on a full-time basis. That purpose was effectively been defeated as a result of the Applicant’s decision to discontinue his studies in the Bachelor’s course at Australian Institute of Higher Education.

1. The Tribunal has considered the possibility that the purpose of the Applicant’s visa could potentially be restored by the Applicant undertaking to enrol in and successfully completing a Bachelor’s course. However, the Applicant has stated that he has now left Australia and has not expressed any desire to return to complete such a course. There does not seem to be any utility in setting aside the delegate’s decision.

Extent of First Applicant’s Compliance with Visa Conditions

1. Beyond the current breach, there is no evidence before the Tribunal to suggest that the Applicant has not complied with other conditions of his visas.

Hardship

1. As the Applicant has left Australia and returned to Nepal, the Tribunal does not envisage any further hardship for the Applicant if his visa remains cancelled.

First Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, this is an intended consequence of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of Condition 8202.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is of view that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess

Member