Tiwari (Migration)

Tiwari (Migration) [2020] AATA 6002 (1 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sagun Tiwari
CASE NUMBER:  2004337
HOME AFFAIRS REFERENCE(S):          BCC2019/5255650
MEMBER:Vanessa Plain
DATE:1 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 1 December 2020 at 9:00am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant has not been enrolled in a registered course of study – breached condition 8202 – experiencing depression – father’s ill health–mental hardship – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 February 2020 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 registered course of study. 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 appeared before the Tribunal on 8 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review by his registered migration agent, although the agent did not appear at the actual review hearing with the applicant.
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 full time registered course: 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.
An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 1 February 2017 for the purpose of undertaking a suite of IT related course leading to a Bachelor of Information Technology (Network Security). He completed a Certificate III in Information, Digital Media and Technology on 24 June 2017 and commenced a Certificate IV in Information Technology Networking. His enrolments in the Diploma of Information Technology Networking and the Bachelor of Information Technology were cancelled on 26 July 2018 and he has not maintained enrolment in a registered course since that time.
A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 4 February 20 2020.
The applicant responded to the NOICC in writing on 18 February 2020. In that response, he sought to explain the reasons for his period of non-enrolment and provide reasons why the visa should not be cancelled, which are set out below.
At the hearing, the applicant acknowledged that he was not enrolled in registered course from 26 July 2018 onwards.
On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 26 July 2018 and on that basis, he has not complied with condition 8202(2)(a).
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’.
In his written response to the NOICC, the applicant gave reasons why his visa ought not be cancelled, as summarized in the Delegate’s decision record (set out verbatim herein) as follows”
·‘He arrived in Australia on 09 February 2017 as a primary visa holder of a Student (subclass 500) visa.’
·‘His intentions was [sic] always to progress his studies in Australia and complete an IT degree. He has been “abiding all the rules of this country during his stay so far.”’
·‘He held enrolments in a Certificate III in Information, Digital Media and Technology, Certificate IV in Information Technology Networking, Diploma of Information Technology Networking and a Bachelor of Information Technology (Network Security).’
·‘He has completed a Certificate III in Information, Digital Media and Technology on 24 June 2017. He studied his Certificate IV in Information Technology Networking course until April 2018. He has passed 8 of 12 units of this course. He tried to get the partial transcript for this, however his institute refused to give him one.’
·‘He returned to Nepal on 19 February 2018 to see his family and unwell father who was suffering from regular chest pain and weakness. He returned to Australia on 14 March 2018, however became “frustrated” due to the deteriorating health condition of his father. He could not focus on his studies after that trip.’
·‘On 26 July 2018 his enrolments in his Diploma of Information Technology Networking and Bachelor of Information Technology (Network Security) were cancelled.’
·‘Being the only son of his parents, he has huge responsibility of caring for his parents in later stages of their lives and therefore intends to return to care for them after he has completed studies in Australia.’
·‘His parents sent him to Australia to study and complete further education, they expect him to return once he completes his studies. “It will be a massive blow to his parents and himself if his visa is cancelled.’
·‘His parents have spent significant amounts of money for his studies and stay in Australia, and are unable to afford his further studies in Nepal if he fails studies in Australia. They have a high expectations for him to complete his studies in Australia and return to Nepal to start his career in the IT field. He and his parents will face “high” mental and financial hardship if his visa is cancelled.’
·‘His has been compliant with his visa conditions his “entire stay” in Australia, and his behaviour towards the Department has been good. There is no other adverse history with the Department and there are not any records of criminal or other offences he has committed.’
·‘He came to Australia at the age of 19 years old. “It is difficult for a boy of his age from country like Nepal to leave their parents, family and start an independent international student life living far away from loved ones.”’
·‘He states “It is easy in these conditions for students like him to fall into pressure of maintaining study, part time work and everyday routine in a completely new place at such a young age.”’
·‘He is now 22 years old, he is vulnerable to depression and may not be able to cope with the legal consequences such as, “handling of the AAT appeal and Federal Circuit court application” if his current visa is cancelled.’
·‘He completed his “School Leaving Certificate (SLC) examination from Skyrider Secondary English Boarding School, Nepal in 2013 securing 82.13% (First division with distinction). He has also completed his higher secondary education from Nepal Higher Secondary School, Nepal in 2015 securing 60.3% (First division).”’
·‘He is a permanent resident of Tandi, Chitwan, Nepal.’
·‘Nepal is gradually progressing in the field of IT, he will have a bright future once he completes his studies in Australia and returns there. He intends to do higher education specialising in the field of his interest within multimedia and IT which will further enhance his knowledge and skills.’
·‘He has received a letter of off to Study a Diploma of Information Technology and Advanced Diploma of Network Security from Queensford College on 18 February 2020.’
·‘He is trying to obtain enrolment in a Bachelor level course, however it’s tough when his previous courses have been cancelled. He would like to make a genuine commitment to get enrolled and continue his studies if his Student visa is not cancelled.’
·‘Completing his intended studies in Australia is vital for his future career. It will have an adverse effect on his career, if his Student visa is cancelled.’
The following documents were provided to the Delegate and attached to the applicant’s NOICC response:
·956 form
·Letter of offer from Queensford College
·Medical certificates for unwell father
·Certificate of completion – Certificate III in Information, Digital Media and Technology
·Annual income for father
·Employment verification for mother
·Parental property valuation
·Rental agreement for parent’s property
·Land ownership certificates for parental property
·Previous and current passport
The applicant provided the following further documents in support of his review application:
·Email dated 9 March 2018 from Tafe NSW to the applicant regarding a Notice of Intention to Report to DIBP for non-payment of tuition fees; and
·A suite of emails ranging between March 2018 and June 2018 between Tafe NSW and the applicant regarding payment for tuition and payment plans.
At the hearing, the applicant provided the following sworn evidence:
·He said that he spoke with a teacher or principal or told him that he could go home, because his father was sick and he also said he can complete his course when he comes back to Australia. When he returned, the he had missed some classes and then the principal told him that he has to do the Certificate IV again and pay for the fees again.
·In June or July 2018, he lost his job. He obtained a new job at Redfern Coffee Shop in Redfern. He worked there for 3 or 4 months, but wasn’t paid properly, so he left. He said that he didn’t have enough money to pay rent or eat
·He was having a hard time in 2018, he became depressed and his parents were considering divorce.
·When he went home to Nepal, he saw a doctor and was given some antibiotics. The doctor told him not to drink too much.
·In July 2018, he went to see the student advisor. He told the student advisor that he already paid for his Certificate IV and that he was having problems. He said that he handwrote a letter and told the advisor that he’ll pay for next semester and he asked that the Tafe not cancel his enrolment.
·He said that he sent an email to the Tafe, requesting that his enrolment not be cancelled, but he received no reply.
·In late 2018, he obtained another job at a restaurant and he is still working there, approximately 10 hours per week.
·He did not take steps to re-enrol because he was depressed. He felt that if he saw a doctor about it, his family would be afraid and there was conflict between his parents at the time.
·If he doesn’t complete a degree and then return home his parents will worry.
·He asked a lawyer to assist him find a college with a ‘good’ COE, but the lawyer told him that he was too busy and that two weeks was not sufficient time to obtain documents.
·In February 2019, he said that he tried to do an English course and a Diploma of IT but that it was too expensive.
·Due to his parents fighting, he did not have money to enrol in a course in 2019.
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
The applicant’s student visa was granted on 01 February 2017 for the purpose of studying in Australia. However, following cancellations of his enrolments on 26 July 2018 the applicant continued to reside in Australia without a valid enrolment.
The only course the applicant has completed since arriving onshore is a Certificate III in Information, Digital Media and Technology on 24 June 2017. The Tribunal acknowledges the applicant’s evidence that he wishes to progress his studies and obtain a degree in the IT field. The letter of offer from the Queensland College to study a Diploma of Information Technology and Advanced Diploma of Network Security obtained by the applicant suggests he wishes to continue to pursue a higher education path, but the fact remains that he did not pursue these study options and as at the date of the hearing, he never enrolled in these courses. The Tribunal acknowledges that the applicant wishes to obtain a higher education degree so that he can return to Nepal to care for his parents and start a career in the IT field.
The Tribunal places weight upon the fact that the applicant has not taken steps to enrol at Queensland College, or any other education provider, as indicative of the fact that the applicant’s purpose for being in Australia is no longer in line with the purpose for which the visa was granted. The Tribunal considers the period of non enrolment to be a substantial period during which his purpose of stay was not for study, and therefore not in line with the purpose for which his Student visa was granted.
The Tribunal gives these considerations some weight towards the visa being cancelled.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2)(a). The applicant has provided reasons for the breach which are set out above.
The Tribunal considers that the requirement to maintain enrolment is integral to the grant of a student visa and the applicant has not maintained enrolment for over 2 years. The Tribunal accepts that there is no evidence before it of any non compliance with other visa conditions, however, the requirement to maintain enrolment is a fundamental condition to the grant of the visa and the Tribunal gives these considerations some weight in favour of the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal has considered the hardship that the applicant may suffer if his student visa is cancelled.
The Tribunal specifically acknowledges the applicant’s claims to have been depressed from time to time and that these issues have impacted upon his capacity to study. The Tribunal further acknowledges that the applicant does not wish to disappoint his parents, who have invested in his academic pursuits and he is concerned that he will experience mental hardship if he disappoints his parents. The Tribunal acknowledges the applicant’s claims that he is vulnerable to depression and may not be able to cope with the legal consequences of visa cancellation.
The Tribunal notes that there is no medical evidence submitted by the applicant to support his claims of suffering from depression, nor is there any reason to believe that the applicant will not be able to pursue studies in his home country, if his student visa is cancelled.
However, based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study for over 2 years.
The applicant’s reasons are set out in his written response to the NOICC and in his evidence at hearing as set out above.
The applicant claimed that his father had been experiencing regular chest pains and weakness and the applicant returned home to see his family for approximately 20 days before returning to Australia. The applicant contended, as set out above, that his father’s deteriorating health continued to cause him stress and his study progression was affected.
The Tribunal accepts the applicant’s claims as to his father’s ill health and that this may have impacted upon his studies to a certain degree. However, the Tribunal notes that the applicant ought to have applied for a deferment of his studies if he was of the view that he required time to deal with his father’s ill health. The emails provided by the applicant between himself and Tafe NSW do not request a deferment, they are emails pertaining to requests for payment of tuition fees and payment plans for fee payment. Based on the applicant’s oral evidence, there is no reason beyond the control of the applicant for the breach of his visa condition.
Further, the Tribunal acknowledges the applicant’s claims that he was ‘depressed’ in 2019 and that’s why he didn’t take substantial steps to re-enrol. The Tribunal is unable to place significant weight upon these claims, because the applicant has not produced any medical evidence in support of his claims that he was suffering depression. The Tribunal accepts that the applicant’s family troubles were impacting upon his capacity to concentrate and that he was clearly in financial difficulty as set out in the emails from Tafe NSW requesting fee payment, but on balance, these matters were not matters wholly outside of the control of the applicant which caused the breach of the visa condition in this case.
The Tribunal places weight upon the fact that the applicant was working in hospitality fairly continuously as set out above. Therefore, if he was suffering from depression, it didn’t prevent him from working and on that basis he ought to have been able to attend classes or otherwise seek to defer his course, but he did not do so.
Further, based upon the content of the emails between the applicant and Tafe NSW, it is clear that the applicant was in financial difficulty and struggling to pay for his tuition fees and that this is what led to the cancellation of the applicant’s enrolment. When applicants apply for a student visa, they warrant to the Department that they have sufficient funds to pay for their tuition costs and living costs throughout the duration of their course. Therefore, an inability to pay for tuition fees as a reason for leading to the cancelation of enrolment is not generally a matter beyond the control of the applicant.
Notwithstanding that the Tribunal acknowledges that the applicant suffered some difficulty in concentrating on his studies due to the matters set out above, the Tribunal cannot be satisfied that the applicant’s particular circumstances that led to the breach of the visa condition were outside of the control of the applicant.
The Tribunal therefore finds that the reason for the breach of the visa condition was reasonably within the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa.
Past and present behaviour of the visa holder towards the Department

The applicant has conducted himself in good faith in his dealings with the Department and its staff. He responded to the NOICC promptly and in some detail.
The Tribunal gives this some weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled. The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.
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 of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country.
Specifically, if the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. Further, he would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia and Public Interest Criterion 4013 may prevent him from being granted particular temporary visas for a specific period.
However, these are mandatory consequences of the legislation and in view of the fact that I have found that the reason for the breach of the visa was reasonably within the control of the applicant, I give this little weight in favour of the visa not being cancelled.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
Not applicable.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
There are no other relevant matters for consideration.
Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.
It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.
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.
Vanessa Plain
Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)     The holder must be enrolled in 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.

[2020] AATA 6002

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach