Thapamagar (Migration)

[2019] AATA 5717

Thapamagar (Migration) [2019] AATA 5717 (20 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Balkrishna Thapamagar

CASE NUMBER:  1821387

HOME AFFAIRS REFERENCE(S):         BCC2018/1618197

MEMBER:D. Triaca

DATE:20 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2019 at 4:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Bachelor of Information Systems – not enrolled in registered course for eight months – enrolments twice cancelled for non-payment of fees – continued to work – illness in family – financial difficulties – failed to take steps to remedy situation – lack of evidence – decision under review affirmed

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

CASES
Boettcher v Driscoll (2014) SASC 86
de Angelis v de Angelis [2003] VSC 432
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 July 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).

2. The delegate cancelled the visa on the basis that had not been enrolled in a registered course of study between 3 November 2017 and 18 July 2018. The issue in the present case 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 31 May 2019 to give evidence and present arguments. He was assisted by an Interpreter in the Nepalese language however his English was sufficiently good that the hearing was able to be conducted in English.

4. The applicant was represented in relation to the review by his registered migration agent who made submissions on behalf of the applicant.

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 comply with Condition 8202?

7. 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 course of study or training: 8202(2)

   •has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   •has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The delegate’s finding was based on a report from the Provider Registration and International Student Management System (PRISMS) that stated the applicant had not been enrolled in a registered course of full time study between 3 November 2017 and 18 July 2018. The delegate identified the relevant period from 3 November 2017 and 18 July 2018 as being the period in which the applicant was not enrolled in a registered course of study. This amounted to approximately 8 months during which the applicant was in continuous breach of the conditions of his visa.

10. In his oral evidence before the Tribunal, the applicant confirmed that he was not enrolled for a period of approximately 8 months since 3 November 2017.

11. Accordingly, the Tribunal is satisfied that the applicant was not enrolled in a registered course of study for the period between 3 November 2017 and 18 July 2018 and so finds that the applicant was in continuous breach of condition 8202(2) of his visa for a period of approximately 8 months from 3 November 2017.

    Consideration of the discretion to cancel the visa

12. 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 by 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.’

    Applicant’s Evidence.

13. A summary of the applicant’s evidence before the Tribunal, is as follows:

    (a)He is a 25 year old citizen of Nepal. He arrived in Australia in August 2013.

    (b)His intention was to study and he enrolled in a Diploma of Computing at MIBT commencing in October 2013 and completed in 2014.

    (c)He commenced a Bachelor of Information Technology at Deakin in February 2015.

    (d)In April 2015, an earthquake occurred in his home town and he sought and was granted a deferral of his studies from Deakin.

    (e)He enrolled in Bachelors of Information Systems at Holmes Institute  (Holmes) on 7 September 2015. His reason for changing to Holmes was due to travel distance from his home in Glenroy to Burwood.

    (f)He commenced studying at Holmes on 7 September 2015. He ceased his studies on 14 October 2016 due to financial hardship.

    (g)He says that he was unable to pay fees due to financial issues created by his grandfather having a stroke in December 2016 and his father having financial issues due to the earthquake that beset his home town. Accordingly, he was in a position where he had anticipated a certain level of financial support from his family that did not eventuate.

    (h)He says he continued to work 20 hours per week in a restaurant.

    (i)He returned to study in April 2017 at Holmes studying a Bachelor of Information Systems at Holmes. His enrolment in that course was cancelled on 3 November 2017 due to non-payment of fees.

    (j)He has not enrolled in any other full time registered course of study since 3 November 2017.

    (k)He says he could not afford to pay the fees at that time. His Grandfather was sick and his father was unable to assist him due to issues arising from the earthquake.

    (l)Since November 2017 he has continued to work 20 hours per week in a restaurant and as a cleaner.

    (m)He attempted to re-enrol in 2018 but was unable to do so.

    (n)He says that his family’s financial position has improved and they are now able to support him. He provided a letter from his father and documentary evidence in relation to his father’s financial position. The Tribunal has taken this material into account.

    (o)He hopes to return to complete his study. He says he has received an offer from Holmes and he understands that he has completed 7 units and would also be entitled to 8 units in credits on account of the Diploma of Computing course. He says he has 9 units to complete and he estimates this will take 3 semesters or 1 and a half years to complete.

    (p)He says that if his visa remains cancelled it will have a “terrible effect” on him. His family have invested in his study and will be disappointed if he returns to Nepal without completing his qualifications.

    (q)He will go back to Nepal at the completion of his studies.

    (r)He acknowledges that he has twice had CoE’s cancelled in Australia due to non-payment of fees.

14. The Tribunal has read and had regard to written submissions prepared by the applicant’s representative dated 30 May 2019. The applicant’s representative appeared at the hearing and elaborated on her submissions and the Tribunal has taken these matters into account, together with written documents provided by the applicant.

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

15. The term “compelling need” is not defined in the PAM3. 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: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (“ Project Blue Sky ”) per McHugh, Gummow, Kirby and Hayne JJ at [69]. There is nothing in s 116 or 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.

16. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 (“Paduano”). Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

17. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said:

    “The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.”

18. “Need” was considered in Dimic v Djekovic (2014) NSWSC 1502, per Hallen J, at [111] as follows: "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from " want ". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

19. "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely ' want ', but it falls far short of 'cannot survive without'."

20. ‘Need’ and ‘ want ’ are not interchangeable. The difference between ‘need ’ and ‘ want ’ is significant. See Boettcher v Driscoll (2014) SASC 86 at [41] per David J.

21. Having regard to these authorities, I take the phrase compelling need to have the ordinary meaning of the words, compelling, demanding attention or demanding interest or being forceful,  and need requiring something more than a mere want, but falling far short of requiring the applicant to demonstrate necessity in the sense that he cannot survive without it.

22. The Tribunal accepts that the applicant came to Australia with a purpose of studying in 2013 and he appears to have applied himself to study between 2013 and early 2015.

23. The Tribunal also accepts that he is likely to return to study if given the opportunity to do so and that he has completed over 50% of the course content. However his wish to return to study must be tempered by the fact he spent a considerable period of time in Australia, on a student visa, without studying and without remedying the situation.

24. It is apparent on the evidence that for an extended period of his stay in Australia, studying has not been his purpose at all. He has twice had CoE’s cancelled due to non-payment of fees and he has continued to work in Australia but not study during times he has not studies.

25. The applicant stated that he attempted to return to study English during 2018, made attempts to gain study rights on his Bridging Visa and he has subsequently received an offer from Holmes to return to study. He says that he paid fees towards an English course but did not receive a letter of offer. In his response to the NOICC dated 13 July he stated that “I understand my fault and I am fully accountable for my mistake” in relation to the English course. He did not provide any documentary evidence in relation to any of his attempts to resume studying.

26. It is in the applicant’s favour that he made attempts to return to study in 2018. However, I give this only minimal weight because those attempts to re-engage with study occurred after the applicant had twice had his enrolment cancelled and his stated attempts to re-engage with study were spasmodic, with months going by before another step towards study would occur, and ultimately unsuccessful.

27. Taken at its highest, his evidence is that he attempted to return to Holmes at some point in or around February 2018, but his enrolment was refused as it was out of time. The Tribunal considers that the student’s responsibility is to inform himself of matters such as the dates for re-enrolment. He stated he paid $4,000 in May towards payment for an English course but did not receive an admission letter. He then received an offer to enrol at Holmes in July 2018 but his visa was cancelled shortly thereafter.

28. However, in all the circumstances, the Tribunal does not consider the applicant has demonstrated a compelling need to travel or stay in Australia.

    The extent of compliance with visa conditions.

29. The applicant confirmed that he was not enrolled in a registered course of study for a period of approximately 8 months. This is a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs towards the cancelling of the visa unless the Tribunal accepts the reasons for non-enrolment.

30. The applicant’s position is that he anticipated that he would be financially supported by his family and this support was not forthcoming and in those circumstances he was unable to pay his course fees in October 2016 and in November 2017 leading to the cancellation of his enrolment.

31. The Tribunal accepts that the applicant’s Grandfather suffered a stroke in 2016, noting that the applicant has provided the Tribunal with a copy of the Hospital admission records from Sumeru Hospital from December 2016.[1] However, that admission occurred following the applicant’s enrolment at Holmes had been cancelled in October 2016 due to non-payment of fees so it is not apparent how his Grandfather’s health contributed to that cancellation.

    [1] The Hospital Records refer to Date of Admission as 2073/12/19 but in his oral evidence, the applicant confirmed that the date of his Grandfather’s stroke was in December 2016.

32. The Tribunal accepts that the applicant may have relied upon financial assistance from his Grandfather that was not forthcoming after his stroke to some degree.

33. The Tribunal also accepts that there was an earthquake in his hometown in April 2015 and this caused him some distress and may have contributed to financial difficulties within the applicant’s family in Nepal. It appears that the applicant responded to the earthquake appropriately, by seeking a deferral from MIBT. However, the Tribunal does not consider it is likely that the effect of the earthquake in April 2015 was such that it caused financial problems within his family that were of such a nature that they caused the applicant to be unable to pay his course fees during both 2016 and 2017.

34. It seems essentially that the applicant’s position is that his breach of the visa was due to a set of circumstances beyond his control. The ultimate submission is that a variety of life stressors, emotional and financial, in their aggregate effect had such an impact on him that he was prevented from continuing to study.

35. Whilst the Tribunal accepts the applicant’s evidence that he has suffered difficulties that he says he had to deal with, many student visa holders are forced to contend with such difficulties during their stay in Australia. Many students from overseas have to deal with financial and emotional issues while away from their families and 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, including the condition that they maintain their enrolment.

36. There is no evidence that the applicant sought to raise his personal issues with the relevant authorities at Holmes or the Department. He did not attempt to seek deferral from Holmes in 2016 or 2017 on account of his personal circumstances.

37. The Tribunal notes that whilst the applicant was not enrolled, he managed to find the time to do other things while in Australia. In particular, he stated in evidence that he continued to work and so, it would seem, he continued to reap the benefits of relatively high wages that available to him through ordinary work in Australia. I accept his evidence that he did not breach the work limitation.

38. The Tribunal accepts that the applicant made some attempts to return to study in 2018 in the form of attempting to enrol in English, attempting to re-enrol at Holmes and later, after his visa was cancelled, attempting to gain study rights. However, as stated above it only places minimal weight on these attempts. Despite his stated attempts, he did not return to study in any capacity following the cancellation of his enrolment in November 2017.

39. Having regard to the evidence in relation to the extent of the breach, the Tribunal is not satisfied by the applicant’s explanations and considers that the lengthy breach of condition 8202(2) warrants some weight towards the visa being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship).

40. The Tribunal accepts it would be difficult for the applicant to return home without completing his Australian qualification. He and his family have expended time and financial resources in his time in Australia so far. He stated that cancellation of his visa would have “a terrible effect” on him. Whilst the Tribunal accepts that the applicant may suffer some distress, it does not consider that the applicant’s claims of hardship are severe or significant, both individually or cumulatively considered. Overall it finds on the evidence that he has not demonstrated any significant hardship to the Tribunal and gives the hardship factor minimal weight towards the visa not being cancelled.

41. Further, the applicant’s desire to remain in Australia for a further 18 months to complete his studies, must be tempered with the extent of his non-compliance with the conditions of the student visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he was here. In the Tribunals view he has not provided a satisfactory explanation for not complying with the conditions of that visa of a period of at least 8 months.

    Past and present behaviour of the visa holder towards the department.

42. The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

    Whether there would be any consequential cancellations under s 140

43. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled under s 140 of the Act.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

44. The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.

1. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

2. The Tribunal considers these are the intended consequences of the legislation.

3. In any event, the applicant’s evidence was that if the visa remained cancelled he would return home to Nepal and therefore there is no indication that he would become unlawful or be subject to detention so I give this factor no weight.

   Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation.

4. The circumstances of the case are not such as to engage Australia’s international obligations.

   If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

5. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

   Any other relevant matters.

6. In the course of the applicant’s submissions and his response to the NOICC dated 13 July 2018, the applicant made fleeting references to his “emotional instability” The Tribunal notes that there was no evidence presented that would demonstrate the applicant was emotionally unstable and does not consider that the evidence indicates that he was unable to study or return to study by reason of emotional instability. He did not present any medical evidence that would suggest he suffered from any form of mental illness.

7. It is in the applicant’s favour that his father has indicated he is now in a position to financially support him and the Tribunal has taken into account the evidence in the form of a letter from his father dated 30 May 2019 and bank statement in support.

8. It was submitted on behalf of the applicant that he had “just 9 units left to complete his qualification.”[2] The Tribunal does not consider that the further study required by the applicant to complete his qualification presents as a minor matter so as to justify extending his time in Australia in order to complete the qualification. The applicant has resided in Australia since 2013. In that time he has completed one Diploma in October 2014. Since then he has completed approximately 7 units of the Bachelor’s course and the Tribunal considers this is very slow progress. When the applicant says he has completed over 50% of the Bachelor’s course units, this is only with the assistance of credits obtained due to his Diploma. In circumstances in which the applicant has only managed to complete 7 units since 2014, the Tribunal does not have any real confidence that, given the opportunity, the applicant would apply himself to complete his studies.

   [2] Para 38 of Applicant’s written submissions.

9. There appear to be no other relevant matters of significance in relation to the present application for review.

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

    DECISION

11. 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.