Thapa (Migration)

[2019] AATA 5570

Thapa (Migration) [2019] AATA 5570 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilip Thapa

CASE NUMBER:  1723927

HOME AFFAIRS REFERENCE(S):     BCC2017/2713705

MEMBERS:Dr Jason Harkess

DATE:27 August 2019

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 27 August 2019 at 12:11pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – genuine temporary stay – gap in enrolment – education provider went into liquidation – applicant continued employment in Australia – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Nepal. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 26 September 2017 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 7 November 2016 with an original expiry date of 15 March 2019, providing for more than 2 years 4 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. The visa was granted on the basis that he was enrolled in and would successfully complete a Bachelor of Business at Australian Institute of Professional Education (‘AIPE’).

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

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

5. The Applicant appeared before the Tribunal on 27 August 2019 to give evidence and present arguments by video-link.

6. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 17 January 2017 to 26 September 2017 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 8 months during which the Applicant was alleged to be in continuous breach of the visa.

2. 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 allows registered course providers to report changes in relation to a student’s enrolment status and to 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 been 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].

3. The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course of study since 17 January 2017. The Applicant’s enrolment in the course was cancelled as a result of the course provider, AIPE, going into liquidation in October 2016. AIPE was effectively shut down and all the enrolments of its students, which included the Applicant’s enrolment, were cancelled. The cancellation of the Applicant’s enrolment was formally entered into the PRISMS database on 17 January 2017.

4. The Department of Immigration and Border Protection (‘the Department’, now known as the Department of Home Affairs) wrote to the Applicant on 4 September 2017, 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.

5. The Applicant responded to the NOICC by email dated 13 September 2017 (‘the Applicant’s NOICC response’). The Applicant did not dispute that he was in breach of his student visa for the period alleged by the delegate. At the hearing before the Tribunal on 27 August 2017, the Applicant also conceded that he was not enrolled in a registered course of study for more than 8 months spanning the period 17 January 2017 to 26 September 2017.

6. Accordingly, based on the evidence, the Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of his student visa for the period of time that was alleged.

Consideration of Discretion to Cancel Visa

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

   ·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);

   ·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;

   ·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;

   ·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;

   ·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);

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

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

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

Circumstances Giving Rise to Breach of Condition 8202

1. In his NOICC response, the Applicant made reference to the fact that AIPE had gone into liquidation and that his course was cancelled as a result. He stated that he was ‘really frustrated’ and that he ‘had no idea what to do next.’ He stated that it was his intention to find another college and enrol in another course but had been unable to organise a new enrolment by the time he received the NOICC from the Department. The Applicant stated that he had been working part-time at a restaurant in Sydney because he would like to further his career as a chef. He said that said that his employer was supportive of that decision and had spent substantial time and resources in his training.

2. The Applicant further stated in his NOICC response that he had also been stressed because of his own poor health, which included a mental health condition. He said that he had consulted a doctor twice regarding his stress and that he could provide a report if necessary. The Applicant also referred to his mother in Nepal who was suffering from depression herself, and that it would be hard for her if his visa is cancelled and he is forced to return to Nepal without having achieved an Australian qualification. The Tribunal notes that the Applicant did not provide any supporting documentation with his NOICC response to substantiate these claims about his own health as well as his mother’s.

3. Prior to the hearing before the Tribunal scheduled for 27 August 2019, the Applicant lodged with the Tribunal a statutory declaration which he had made on 19 August 2019. In that declaration, he referred to how he had originally arrived in Australia in October 2013 for the purposes of study. He stated that he completed a Diploma of Accounting in 2015 before commencing the Bachelor of Business at AIPE. He reiterated that the reason for his enrolment in the Bachelor’s course being cancelled was due to AIPE being shut down, drawing attention to the fact that his cessation of studies in that course was through no fault of his own. He further stated that, following AIPE’s closure, he was not sure as to the procedures he needed to follow in order to continue studying. He said that nobody from AIPE provided him with any information about what he needed to do next or advised him that he had an obligation to find another college to continue with his studies. He said that he was waiting for the Department to contact him ‘for further processing’ when he received the NOICC.

4. In his statutory declaration, the Applicant made no reference to his own mental health concerns which he had referred to in his NOICC response. He also made no reference to the concerns about his mother’s mental health. He also made no reference to the fact that he had continued to work part-time at a restaurant in Sydney during the breach period. He appears to attribute his breach of his visa entirely to the fact that AIPE shut down, forcing him to stop studying.

5. The Applicant’s registered migration agent also filed submissions with the Tribunal at the same time the statutory declaration was lodged. In those submissions, the Applicant’s representative again highlighted the closure of AIPE as being the principal cause of the Applicant’s visa being breached. The representative also drew attention to the fact that neither AIPE nor the Department made contact with the Applicant to advise him what to do next. No reference was made in those submissions to the Applicant’s mental health, his mother’s mental health, or his work commitments at a Sydney restaurant, at the time his was in breach of visa. The thrust of the Applicant’s submission, it would seem, is that the ongoing breach of his visa was caused by AIPE’s closure, followed by the failure of AIPE and the Department to guide the Applicant towards enrolling in another registered course of study.

6. At hearing before the Tribunal on 27 August 2019, the Applicant was unable to add anything beyond what has been outlined above. The Tribunal asked him why he was unable to find another course provider and enrol in a registered course of study so that he could cure his breach of Condition 8202. He was unable to provide any kind of satisfactory answer. He simply kept apologising to the Tribunal for not doing so. The Applicant confirmed to the Tribunal that he was working in a Sydney restaurant during the 8-month period when he was in breach of the visa. The Tribunal inquired of the Applicant as to why he could not find the time to enrol in another course if was able to find the time to work. He was unable to provide any kind of sensible answer. The Applicant referred to the fact that he was stressed or depressed at the time, and also to his mother’s ailing mental health that was of concern to him. He said that he visited the doctor 2 to 3 times to address his mental health concerns. The doctor did not prescribe him medication but only counselled him. The Applicant did not claim to have any kind of ongoing chronic mental health condition. In these circumstances, the Tribunal considers there was nothing to prevent the Applicant enrolling in a registered course soon after AIPE closed.

7. The Tribunal accepts that the closure of AIPE would have disrupted the Applicant’s life as a student in Australia. However, it is principally his responsibility to ensure ongoing compliance of Condition 8202. Following AIPE’s closure, it was his responsibility and his alone to take steps to find another course provider. It was not the responsibility of AIPE nor the Department to notify him of his obligations to do so, nor to assist him in taking steps to enrol in another registered course. His failure to do so for more than 8 months is without any satisfactory explanation.

8. In the Tribunal’s view, the situation that has given rise to the breach of Condition 8202 of the Applicant’s visa is neither characterisable as extenuating nor as having been beyond the Applicant’s control. It is a situation that has largely arisen from his own choosing.

Purpose of 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 defeated when the Applicant ceased studying. That purpose was not served for more than 8 months when the Applicant chose not to take positive steps to find another course provider and enrol in a registered course of study. He chose instead to work during that period.

2. There is no compelling need for the Applicant to remain in Australia. By their nature, student visas are meant to provide non-Australian citizens with temporary residence only. If the Applicant’s visa had been left to operate, without being cancelled, it would have now expired. The Applicant was afforded a significant amount of time to spend in Australia for the purposes of full-time study. The Applicant stated in oral evidence that he has now been in Australia for almost 6 years, purportedly as a full-time student. Yet all he has to show, by way of educational achievements, is a Diploma of Accounting, which he completed in 2015. In the Tribunal’s view, the purpose of the Applicant’s stay in Australia has been fundamentally defeated by the Applicant’s own poor decision-making processes. It is appropriate that the student visa be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

1. Beyond the Applicant’s non-compliance with Condition 8202, being the subject of the present application for review, there is no material before the Tribunal that indicates the Applicant has not complied with his visa conditions on any other occasions.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. However there is little credibility attaching to that expressed desire given how little he has achieved since he has been in Australia. If the visa is not cancelled, the Tribunal considers it unlikely that the Applicant will achieve anything further by way of educational pursuits in Australia. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. His family will understandably be very disappointed. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he has been here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition. It seems that he has fundamentally failed to utilise his student visa effectively for the purpose it was designed to serve.

2. The Applicant’s migration agent made some reference to possible incidents of civil or political unrest in Nepal which has disrupted the running of several universities. No material was provided in support of this claim. In any event, even accepting that claim to be correct, the Tribunal does not consider this to be a significant factor weighing against a decision to cancel his student visa.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. 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 become an unlawful non-citizen and liable to 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. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Nepal and holds a current passport for that country so can return there. 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 giving effect to his departure from Australia.

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 satisfied 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