Thapa (Migration)

Thapa (Migration) [2019] AATA 4339 (20 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Deepak Thapa
CASE NUMBER:  1826412
HOME AFFAIRS REFERENCE(S):           BCC2018/1902526
MEMBER:Noelle Hossen
DATE:20 September 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 20 September 2019 at 11:15am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – stress – financial difficulties – no evidence provided – poor academic record – extensive non-compliance – 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 7 September 2018 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).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a full time registered Course of study and did not meet the requirements of clause 8202(2)(a).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 was sent a hearing invitation by the Tribunal on the 17 May 2019 but sought that the hearing be postponed so a new hearing invitation was sent to him on the 21 June 2019 for a hearing in on the 8 July 2019.
The applicant appeared before the Tribunal on the 8 July 2019 to give evidence and present arguments. The applicant had indicated on his hearing response filed on the 2 September 2019 that he intended to call his sister Puspa Thapa as a witness but she did not attend the hearing and the issue was not pressed by the applicant and his registered migration agent.
The applicant received a notice of intention to cancel his visa by the Department on the 17 August 2018. The applicant did obtain further enrolment on the 24 August 2018 after receiving the Notice of intention to cancel from the Department. The notice that the visa was cancelled on the 7 September 2018 was sent to the applicant by registered post by the Department.
The applicant was represented in relation to the review by his registered migration agent.
The applicant had provided a copy of the Delegate’s decision to the Tribunal.
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 registered course of study or training: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2) (c) (i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202 (2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The circumstances in which the ground of cancelation arose were discussed at the hearing. The Tribunal has taken into account the evidence given by the applicant at the hearing, the submission of the representative filed on the 3 July 2019, and the information contained in the Delegate’s Decision.
At the hearing the applicant told the Tribunal in his evidence that he passed Certificate III in Commercial Cookery and that he attempted Certificate IV but was struggling and falling behind in his assignments. He could not meet the Course requirements and was overwhelmed with his workload. He said that he attended the college but could not do the assignments. He was told that he had to redo the course. The Tribunal did try to find out the reason as to why he could not complete the assignments in any of the Courses that he studied since his arrival in Australia after completing his Certificate III in Commercial Cookery. The applicant told the Tribunal that he was under stress but provided no medical evidence for any mental health issues or that he had sought assistance to deal with his stress. The Tribunal places minimal weight to his explanation that he was under stress.
He also stated in evidence that he had financial difficulties but provided no actual evidence of the financial problems that he faced. The evidence was that he had paid for some of the courses himself. There was no clear evidence before the Tribunal that he was unable to pay for the classes as it appeared that he had paid for most of the courses that he was enrolled in. He said in evidence that he could not pay for Semester 2 of the Diploma of Leadership and Management.
He did state that he had saved some money whilst in Australia. No evidence was provided of the exact period that the financial difficulties were faced, save that he could not pay for the second semester of the Diploma of Leadership and Management as set out above.
He stated in his submissions filed on the 3 July 2019 that his sister Puspa gave birth to a child in June 2017 and that he did not wish to burden his family to pay for his courses. The Tribunal places minimal weight on the applicant’s explanation. The applicant has been residing in Australia since 2014 and the child was born in 2017.The only course that he has completed to date was the Certificate III in Commercial Cookery and he completed the same in 2015.
He also stated in his evidence at the hearing that he was too busy to attend the classes as it clashed with visiting officials’ visits from Bhutan that he had volunteered to assist, and that it was too hard. The Tribunal accepts his evidence and has considered the evidence that he gave that he had volunteered to help at community events. The Applicant confirmed that he volunteered and placed priority on the community events ahead of his studies. The Tribunal is not satisfied that this was a reasonable reason for his nonattendance for his classes as he should have given priority to his studies and weighs the evidence in favour of cancelling the visa. The fact that he chose to volunteer and not attend classes was within his control and it was his choice to volunteer.
The evidence of the applicant at the hearing was that he arrived in Australia in August 2014 and he has only passed one course and that is the Certificate III in Commercial Cookery. He completed that course on the 31 July 2015.He was then enrolled in Certificate IV which ended on the 29 January 2016.He only passed 5 out of the 9 units and he had 7 assignments pending.
He gave further evidence that he was then enrolled in Diploma of Hospitality on the 2 February 2016 which ended on the 1 August 2016.He was 5 units short of the Diploma. His Certificate of Enrolment was cancelled by the College in June 2017.
He then enrolled in the Diploma of Leadership and Management. He could not complete that Course as he had difficulty attending the classes and he said he could not pay for the second semester. The Tribunal accepts the evidence of the applicant and has considered the evidence in favour of cancelling his visa.
He stated to the Department when he received his notice of Intention to cancel his visa, that he was unable to obtain further enrolment until his education provider provided him with a letter of release. He was able to obtain a Confirmation of Enrolment with Stotts College to study a Bachelor of Business because they did not need a letter of release. The Tribunal accepts his evidence. The Tribunal considers that he appears to have enrolled in that course purely to satisfy the requirement of enrolment
The delegate found that he had not been enrolled in a registered course of study between the dates 10/10/2017 and 24/08/2018 and therefore did not meet the requirements of subclause 8202(2)(a).
In the evidence at the Tribunal hearing, before the Tribunal, the applicant confirmed that he was not enrolled in a registered course for that period as stated in paragraph 22 above. The Tribunal accepts the evidence of the applicant. Accordingly, the applicant has not complied with condition 8202(2).
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’
The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia. The primary decision record from the Department’s decision indicates that the applicant has only completed a Certificate III since his arrival in Australia in the first year that he was here. The applicant has been in Australia for 5 years at the time of this decision. In oral evidence the applicant confirmed that since the cancellation of his visa in 2018 he has not attended any classes for the Course being the Bachelor of Business.
The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia. The Tribunal notes from the decision record that the applicant was granted a subclass 500 visa on the 24 February 2017, save and except, for the enrolment for the Bachelor of Business in 2018 after receiving notice of intention to cancel his visa the applicant has not been enrolled in a registered course of study since he received the Notice of Cancellation.
The Tribunal notes that over 5 years the applicant has only been able to complete Certificate III in Commercial Cookery.
The applicant said at the hearing that he was not working because his visa was cancelled and he was not presently studying because of the cancellation. He stated that he helps out his sister who has a 3 year old child and he babysits for the family on occasion. His sister and brother in law are assisting him financially as he is not working. His brother in law works as an accountant in the day time but owns a restaurant that specialises in Bhutan cuisine in Mount Lawley. His sister and brother in law are permanent residents of Australia. They were both studying economics and applied for the permanent visa after they had finished studying. His sister and brother in law are both employed so they will not face any significant hardship if the applicant returns to Bhutan.
Another reason given for his lack of progress with his studies was that he was unable to attend lectures that were on the weekend as he was committed to help out in the community as there were important religious leaders from Bhutan who were present in Western Australia and he had volunteered to help out. He was asked whether he could have changed the times of his lectures but he said that he could not do so. The Tribunal accepts his evidence that he had placed a priority on volunteering for community events rather than studying and not complying with the conditions of his visa. The Tribunal finds that as he was volunteering that it was within his control to choose to prioritise his commitments but he failed to do so.
The Tribunal has weighed all of the evidence before the Tribunal which consists of the applicant’s poor academic record, his lack of commitment to study and his extensive period of non-enrolment over 4 years. His explanations for his situation give the Tribunal little reason to believe that he will commit to his studies and fulfil the purpose of his visa at any reasonable time in the future. Given the applicant’s actions in failing to fulfil the purpose of his visa for a significant period of time, the Tribunal weighs this as a significant factor in favour of cancelling the visa.
The Applicant has remained in contact with the Department and been cooperative with their requests. The Tribunal gives this factor some weight in favour of the visa not being cancelled.
The Applicant was asked by the Tribunal, as to what would happen to him if the Tribunal decided to affirm the decision of the Department and he would have to return to Bhutan. The Applicant said that it would be difficult for him to return to Bhutan as his mother is a widow and has a child to support. It was established during the hearing that the applicant has 2 older sisters who reside with his mother and assist her financially as they are both employed. This was in contrast to the submissions filed by the representative on the 3 July 2019 whereupon it was stated that his mother was responsible for his 3 sisters’ .The Tribunal accepts the evidence of the applicant that his older sisters are employed. One sister is employed as a receptionist and the other is employed as a ticketing agent. His younger sister is 22 years of age and is presently studying a Bachelor of accounting at a University in Bhutan.
He also told the Tribunal that he has $4000 in savings. He confirmed that he would be able to get a job in Bhutan as he has attained Certificate III in Commercial Cookery and a lot of work experience in Australia. The Tribunal finds that if the visa is cancelled there may be some hardship to his family and his career but on the information before the Tribunal such hardship will not be significant so the Tribunal gives this factor little weight towards the visa being cancelled.
The applicant did not indicate any other reason or fear of return to Bhutan .The Tribunal finds that there is no information to support that any international obligation would be breached and the Tribunal gives this fact no weight.
The Tribunal finds that that the issue as to whether there would be consequential cancellations under Section 140 to be not relevant in this case.
The Tribunal accepts that the purpose and intention of the applicant’s stay in Australia was to study. The Tribunal has some concerns about whether the applicant had a genuine intention to study in the period considered above .The Tribunal is willing to accept that originally the applicant arrived in Australia with the purpose of attaining qualifications and to study and did do so until his enrolment was cancelled in 2017 and the Tribunal is prepared to give this factor some weight in favour of not cancelling the visa.
The applicant has remained in Australia on a bridging visa, and he will continue to hold one for some time after this decision. If the visa remains cancelled the applicant will only be able to apply for a limited range of further visas .Given this evidence the Tribunal gives little weight to this factor.
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 Class TU visa.
Noelle Hossen
Member

ATTACHMENT
Migration Regulations 1994
8202Schedule 8
8202(1) The holder must be enrolled in a a full-time course of study or training if the holder is:
(a)a Defence student; or
(b)a Foreign Affairs student; or
(c) a secondary exchange student.
(2)A holder not covered by subclause (1):
(a)must be enrolled in a full‑time registered course; and
(b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2019] AATA 4339

20 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal