Thapa (Migration)

[2019] AATA 5443

Thapa (Migration) [2019] AATA 5443 (24 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avishek Thapa

CASE NUMBER:  1908384

HOME AFFAIRS REFERENCE(S):         BCC2019/279679

MEMBER:D. Triaca

DATE:24 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 November 2019 at 9:18am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – long standing gambling problem – purpose of stay in Australia – no compelling need – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The applicant is a 23 year old citizen of Nepal. This is an application for review of a decision dated 1 April 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 applicant’s student visa was granted on 10 January 2017 permitting him to reside in Australia for the purposes of full time study. The visa was granted on the basis that the applicant would enrol, and make satisfactory progress, in a Bachelor of Professional Accounting. The delegate cancelled the applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study.

3.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.The applicant appeared before the Tribunal at a hearing convened on 22 November 2019 to give evidence and present arguments.

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 Breach Condition 8202?

7.Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 7 May 2018 to 1 April 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 10 months during which the Applicant was in continuous breach of the visa.

8.The delegate’s finding in this respect was 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’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database 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. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

[1] 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].

9.The applicant stated that he arrived in Australia July 2017 and shortly thereafter commenced studying a Bachelor of Professional Accounting at Wentworth Institute. He found his first semester difficult and failed two subjects. He then transferred his studies to Holmes Institute for a second semester where he undertook 3 subjects which he passed.

10.In May 2018 his enrolment at Holmes was cancelled due to non-payment of fees. From that point the applicant remained in continuous breach of his visa by not being enrolled in any registered course of study.

11.The Department wrote to the Applicant on 12 March 2019 notifying him of its intention to consider cancelling his student visa (the NOICC). That notice set out particulars of the alleged breach by the applicant of condition 8202. The applicant was invited to comment on these allegations before the Department moved to cancel his visa.

12.The applicant responded to the NOICC on 18 March 2019. (‘the Applicant’s NOICC response’). In that response, the applicant did not dispute the grounds for cancellation. In his evidence before the Tribunal, the applicant admitted that he was not enrolled in a registered course for the period alleged by the Delegate.

13.Based on the evidence before it, the Tribunal is therefore satisfied that the applicant was not enrolled in a registered course of study for a period in excess of 10 months and was therefore in breach of condition 8202 of the visa.

Consideration of the discretion to cancel the visa

14.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.’

15.The applicant‘s first year in Australia was unremarkable. After arriving in Australia he commenced studying and although he failed some subjects, he passed three subjects after transferring his studies to Holmes Institute for the Second Semester of 2017.

16.Unfortunately for the applicant, it is apparent that his studies were derailed in early 2018 when he developed a gambling problem that, on his own evidence, remains an issue for him. He states that he gambled regularly, mainly on sports such as Basketball and Football. He says his gambling created a situation where he had borrowed money to gamble and he could not pay his tuition fees. His enrolment was duly cancelled in May 2018.

17.After the cancellation of his enrolment, the applicant does not appear to have taken any steps to resolve the situation and return to study. He continued to gamble and appears to have been focused on that pursuit. He says that it was not until the visa was actually cancelled in April 2019 that he took any steps to enrol in any other courses. Even then, this was unsuccessful. He says he commenced studying a Diploma of Accounting at Lennox College in Parramatta but ‘only for 2 weeks’. There is no documentary evidence in relation to this further study but the Tribunal accepts he did attempt to return to study, albeit belatedly, and briefly.

18.He says that he did not consider going home when he faced financial problems. He did not seek to defer or speak to Holmes Institute. He says that he did not realise he may have been able to pay his fees over time and this may have altered his decision to cease studying. This may be the case, however the Tribunal considers it is the responsibility of the applicant to have made due enquiries with the education provider in relation to his options when faced with financial difficulties. It does not explain the applicant’s breach over an extended period of time.

19.The applicant states that he would like to return to study at a Diploma level but has made no arrangements in this regard. The Tribunal questioned the applicant in relation to whether he could pay his tuition fees if given a further opportunity, noting his history of financial problems related to gambling. He says that he intends to stop gambling in order to ensure he can pay his fees.

20.The Tribunal accepts the applicant’s evidence that he has reduced his gambling, but he has not undertaken any form of counselling or sought any professional assistance in relation to his gambling. The Tribunal is not convinced that the applicant is likely to give up gambling completely without some professional intervention. He appears to have a long standing gambling problem, noting that the applicant provided the Tribunal with copies of his bank statements that revealed numerous deposits to online gambling agencies.

21.The applicant stated that he has worked in Australia at Facility First as a cleaner. He says he works approximately 20 hours per week and he earns between $400 and $500 per week. He continued to work throughout his time in Australia, including the period during which he was in breach of the conditions of his student visa. Whilst the applicant was entitled to work, the Tribunal considers that this reflects the applicant prioritised work over study, whilst he remained in Australia on a student visa and this weighs against the application.

Hardship

22.The Tribunal notes that if the visa is cancelled, the applicant’s hopes of attaining an Australian qualification will not be met. He will be disappointed. He is concerned about returning to his home country where he understands jobs are difficult to come by. He will be disappointed, his family will be disappointed and he will suffer some degree of financial loss and inconvenience for having to return to Nepal without an Accounting degree. The Tribunal notes that this concern must be tempered by with the fact that the applicant breached a fundamental condition of his student visa for an extended period of time.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia.

23.The Tribunal accepts that the applicant’s initial purpose of being in Australia was to study. However, it is apparent that since early 2018 the applicant’s purpose has not been studying. The Applicant says that he would like to return to study and this may be a genuinely held intention. However, given his failure to take advantage of his earlier opportunities, the Tribunal is sceptical of his willingness to apply himself to his studies. It weighs against the application that his academic progress before the cancellation of his enrolment was limited and that once cancelled, he did not take any meaningful steps to address the situation for many months, if at all.

24.The term ‘compelling need’ is not defined in PAM3 or the Act. I take it to have its ordinary meaning, having regard to both the context and purpose of the PAM3 and s 116 of the Act.[2] There is nothing in the PAM3, or elsewhere in the Act to indicate that Parliament intended the phrase ‘compelling need’ to be given anything other than its ordinary and natural meaning.

[2] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [69]

25.The terms ‘compelling’ has been well considered by Crennan J (sitting in the Federal Court) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204,[3] finding compelling ought to be construed widely and unqualified. “Compelling” in its wide, ordinary meaning, means forceful.

[3] At [31] – [45]

26.Need has been judicially considered. It is a relative concept.[4]It is more than merely “want” but falls far short of “cannot survive without.“[5]

[4] De Angelis v de Angelis (2003) VSC 432

[5] Lord Neuberger of Abbotsbury, in R (on the application of M) v Slough Borough Council (2008) 1 WLR 1808 at [54]

27.Having regard to these authorities, the Tribunal does not consider the applicant has advanced any compelling need to travel to or remain in Australia and this weighs against granting the application.

The extent of compliance with visa conditions.

28.As stated above, the applicant was in breach of his student visa conditions for a period in excess of 10 months. This is a significant period of time and the non-compliance with condition 8202 for such a period weighs towards cancellation of the applicant’s visa unless the Tribunal accepts the applicant’s reasons for non-enrolment.

29.The applicant’s evidence is essentially that he dropped out of study for an extended period of time as he was unable to pay tuition fees due to gambling. During his period of non-compliance, he continued to work in Australia and gamble without taking any meaningful steps to rectify the breach of this student visa conditions. On any objective view, the applicant’s evidence may explain his breach but it falls well short of excusing it and this weighs heavily against the application.

Whether there are mandatory legal consequences.

30.The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He 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, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

Applicant’s past and present behaviour towards the Department.

31.There is no evidence the applicant has engaged in any uncooperative behaviour toward the Department and the Tribunal makes no adverse findings against the applicant in this regard.

Whether there would be any consequential cancellations under s 140

32.There do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the applicant’s visa is cancelled.

33.The Tribunal notes that the applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of Nepal and there does not appear to be any reason he cannot return. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the applicant does not co-operate with authorities in departing Australia.

Whether any international obligations would be breached.

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

35.This is not a permanent visa.

36.There do not appear to be any further matters relevant to the application.

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

DECISION

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

D. Triaca
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.