Tulachan (Migration)

[2020] AATA 1842

Tulachan (Migration) [2020] AATA 1842 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Tulachan

CASE NUMBER:  1817287

HOME AFFAIRS REFERENCE(S):          BCC2018/1034792

MEMBER:L. Symons

DATE:10 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 March 2020 at 10:05am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – lengthy gap in enrolment – limited academic progress – applicant changed to English and vocational courses – financial hardship – family bereavement – health issues – 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. This is an application for review of a decision dated 6 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course since 21 August 2017 in breach of condition 8202(2). He applied to the Tribunal for a review of that decision on 13 June 2018.

3. The applicant appeared before the Tribunal on 8 January 2020 to give evidence and present arguments.

4. 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 AND FINDINGS

5. 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?

6. 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).

7. In the present case, the applicant was granted a Student visa on 27 October 2015. This visa was subject to a number of conditions including condition 8202. On 24 May 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled.

8. In his response dated 30 May 2018, the applicant provided details as to why he was unable to maintain enrolment in a registered course and comply with condition 8202(2)(a). The delegate cancelled his Student visa on 6 June 2018.

9. The applicant provided the Tribunal with a copy of the Decision Record dated 6 June 2018 from the Department of Immigration (the Department). At the end of the hearing, he requested and was granted further time to provide documentary evidence. No further evidence was provided to the Tribunal.

10. During the hearing, the applicant gave evidence that he understood that if he was not enrolled in a registered course he would breach condition 8202 of his Student visa. He conceded that he had breached condition 8202 of his Student visa.

11. The records of the Department of Education indicate that the applicant enrolled in a Bachelor of Accounting degree from 24 July 2017 to 19 July 2019. His enrolment in that course was cancelled on 21 August 2017 for non-commencement of studies. He has not been enrolled in a registered course of study since then. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he had breached condition 8202(2) of his Student visa. He responded that he agreed with the information and stated that it was due to his mental and emotional state.

12. On the evidence before it, the Tribunal finds that the applicant has not been enrolled in a registered course since 21 August 2017 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling         need to travel to or remain in Australia?

14. The applicant gave evidence to the Tribunal that the purpose for which he travelled to Australia was to complete his studies. He stated that he wanted a good career and to make a better life for his family. When asked why he did not return to Nepal if he was not studying, he responded that his mother had done a lot to send him to Australia to study and she has expectations of him. He stated that he told her about his situation in Australia, his visa being cancelled and his Tribunal hearing. He stated that he cannot face them. He stated that he thought he could change things around before things went bad.

15. The records of the Department of Education indicate that the applicant was enrolled in a Bachelor of Commerce from 4 November 2015 to 26 October 2018. His enrolment in that course was cancelled on 16 March 2016 for cessation of studies. He then enrolled in a English course from 2 May 2016 to 13 May 2016 and completed that course. He enrolled in a Diploma of Information Technology (IT) from 4 July 2016 to 30 June 2017. His enrolment in that course was cancelled on 16 December 2016 for unsatisfactory attendance. He then enrolled in the Bachelor of Business and his enrolment in that course was also cancelled. The only course he has completed in Australia is an eleven day English language course. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that he has not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled.  

16. The applicant responded that he agreed with the information. He stated that he has not met the conditions on which the Student visa was approved. He stated that his trip to Australia was his first time overseas. He stated that he was very young and did not have the clarity of thought or the will to take the necessary actions. He stated that he would like to request a second chance to complete his course, get a career and fulfil the expectations of his friends and family.

17. The Tribunal asked the applicant if there was any reason for him to remain in Australia as he was no longer studying. He responded that he would like to continue his studies. He stated that he has been waiting for this date to present his case and study again in Australia. When asked what he wanted to study, in light of his evidence that he was not interested in IT, he responded that he wanted to study International Relations. He stated that it was what he always wanted to do but they said Arts was a flimsy field to get into and he would not be able to get a job. He stated that he was young and followed that advice. He stated that he changed to IT to get permanent residence. He stated that he has clarification that he should study what he wants. He stated that his passion has been global politics and history.

18. The evidence before the Tribunal indicates that the applicant has a poor history as a student in Australia. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia. The Tribunal gives this consideration little weight in his favour.   

    The extent of compliance with visa conditions

19. The applicant has not been enrolled in a registered course since 21 August 2017. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa. The Tribunal is not convinced that he has provided a satisfactory explanation for why he was not enrolled in a registered course since that date. (See below)

20. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour.   

    Degree of hardship that may be caused

21. The Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that he would have to return to Nepal. He stated that he would suffer financial hardship as he has already spent a lot of his parents’ money living in Australia. He stated that he does not think they would be able to sponsor another stay in Sydney.  He stated that he would like to complete his studies so that he does not become a burden to his family in Nepal. The Tribunal gives this consideration some weight in his favour.   

    Circumstances in which the ground for cancellation arose

22. In his response to the NOITCC, the applicant stated that he was aware that he had not upheld his part of the contract by not being enrolled in a course since August 2017. He stated that he does not have a specific reason for doing so. He stated that ever since the death of his grandfather he has not being paying attention to himself and the reality he faces.  He requested understanding for the tough time he was going through and that it was not his intention to get to this point.

23. The applicant stated that he became lonely and depressed after his grandfather passed away. He stated that he did not work or socialise for almost a year. He stated that he only wants to complete his studies and return home. He stated that if he returns to Nepal his family would have difficulty backing him financially again. He requested a second chance to fulfil his dreams as it would mean a great deal to him and his family. He stated that he would provide a “psycho-analysis test” and further documents as proof it required. He did not provide any supporting documents to the Department.

24. During the hearing, the applicant gave evidence that his father passed away when he was young and his grandfather was his father figure. He stated that he is not close to his mother. He stated that he told his education provider that his grandfather had passed away and he could not attend classes for a week as he had to fast. He stated that after that he did not return to his classes because it was difficult for him and he was not thinking straight. He stated that he did not want to change his course to IT. He stated that he did that because he could not obtain permanent residence through International Business and it was an easy way to get permanent residence in Australia. He stated that he was not interested in IT.

25. The applicant stated that in about February 2017 he went to his College and asked the co-ordinator whether he could enrol in his course again and complete it. He stated that the co-ordinator told him that he had also suffered a loss in his family and would try to help him and give him some advice. He stated that he was later told that he could not re-enrol because of his poor attendance.

26. The Tribunal pointed out to the applicant that his problems with his studies in Australia started before his grandfather passed away. He responded that he has always been a problem child. He stated that he was never able to deal with the loss of his father and his grandfather passing away was the tipping point. When asked whether he spoke to the Department about his problems, he responded no and stated that he has never spoken to anyone there. When asked whether he spoke to his sister (who lives in Sydney) and obtain advice from her and his brother in law, he responded that his sister is the only one who knows what he is dealing with. He stated that she has a burden of her own.

27. During the course of the hearing, the applicant stated that he was unable to comply with condition 8202 of his Student visa because of his mental and emotional state as he was depressed following his grandfather’s death. He stated that his grandfather died of lung cancer in September 2016. Despite his claimed closeness to his grandfather, he did not attend his funeral.

28. The Tribunal raised as issues with the applicant the fact that he did not talk to his education provider about being depressed or seek any counselling. The Tribunal noted that it had no evidence that he was suffering from depression at that time. He responded that he could get a report from a Psychologist now if given more time. The Tribunal questioned the evidential value of obtaining a report from a Psychologist now in relation to the state of his mental health two or three years ago. Nevertheless, the Tribunal gave him further time after the hearing to provide additional evidence. He did not provide the Tribunal with any evidence from a Psychologist or of his grandfather’s death or any other supporting documents.

29. In his response to the NOITCC, the applicant stated that he was lonely and depressed after his grandfather passed away and provided that as an explanation for why he was not enrolled in a registered course. The reality is that he had problems with his studies ever since his arrival in Australia and he has not completed any studies in Australia other than an eleven days English course. This was long before his grandfather’s death. The Tribunal raised this as an issue with him and noted that it may find that his failure to be enrolled in a registered course of study after 21 August 2017 had nothing to do with his grandfather’s death. 

30. The applicant responded that he explained the reason why he changed from commerce to IT. He stated that while he was enrolled in the Diploma of Business at Curtain University he did better at his studies. He stated that the only reason he changed to IT was in hope of obtaining permanent residence in Australia. He stated that he did not think that permanent residence was important when he arrived here but his friends and colleagues here were all “racing” for permanent residence options. He stated that this has been “killing a lot of students’ hopes” in Australia.

31. The applicant stated that the reason why he did not complete the Diploma of IT was because he was unable to attend classes as a result of his grandfather’s death. He stated that he could not enjoy where he was or who he was with. He stated that he is trying not to use the term depressed but he was depressed after his grandfather’s death and that was the only reason he did not complete the Diploma of IT. He stated that he is feeling more positive in 2020. He stated that after his Student visa was cancelled he was unable to obtain a (Bridging) visa that allowed him to study in Australia. The Tribunal does not accept this evidence as it contradicts his earlier evidence that he was not interested in studying the Diploma of IT. 

32. The applicant gave evidence to the Tribunal that he started working as a labourer at ADL Co-operation in December 2015 and did that job for about one and a half years. He stated that he then worked in a chocolate factory for six months. He stated that he moved to Melbourne where he worked as a waiter in an Indian restaurant and briefly in Housekeeping at the Sheraton Hotel. He stated that he returned to Sydney and resumed his job as a labourer at ADL co-operation. In his response to the NOITCC, he informed the Department that he was unable to work or socialise for almost a year after his grandfather’s death (in September 2016). He gave evidence to the Tribunal that he was not able to leave the house after his grandfather’s death.

33. This is not consistent with the applicant’s evidence of his work history in Australia. He was working at ADL Co-operation at the time of his grandfather’s death and continued to work in the same job after his grandfather’s death. The Tribunal raised this as an issue with him and noted that it may find that he had not been truthful to the Department and the Tribunal and that his grandfather’s death had nothing to do with the cancellation of his Student visa. He responded that he only worked when he needed the money.

34. The Tribunal noted that his evidence that he was unable to leave the house after his grandfather’s death was not truthful if he was going to work. He responded that things were bad when he was in the house. He stated that he could not ask for money. He stated that he had burnt bridges with friends in Sydney. He stated that he spent most of his time in Melbourne inside a small room with a television and a small couch. He stated that depression is something people can hide well and there is strong truth to it. He stated that he has found that since he left Nepal he has been a different person.

35. The applicant stated that the last three years have been brutal on him. He stated that he cannot say one hundred percent that he is the man he was before this happened. He stated that he cannot remember if he was a good person before this happened or not. He stated that this has been the darkest time of his life and he hopes to God he does not have to go through this again. He stated that he also has an issue with his physical health (which he disclosed to the Tribunal) that impacted on his mental health.

36. The Tribunal suggested to the applicant that he may need to focus on resolving the problems with his physical and mental health before he is able to focus on his studies. He responded that he thought about returning to Nepal and taking some time off. He stated that the environment he would be returning to is not one that will support mental growth in him. He stated that he would like to remain in Australia with his sister as she is the only one that has ever understood and knows what he is going through.

37. Despite the lack of any independent supporting evidence, the Tribunal accepts that the applicant has a physical ailment that has affected his mental health and that he may be suffering from depression. The Tribunal has considerable sympathy for him and the situation he is in. However, the Tribunal is not satisfied that this adequately explains his poor performance as a student in Australia or the circumstances in which the ground for cancellation arose. The Tribunal gives this consideration little weight in his favour.

    Past and present behaviour of the visa holder towards the Department

38. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.  

39. Whether there would be consequential cancellations under s.140 of the Act

40. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

    Legal consequences of a decision to cancel the visa

41. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. 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 finalize his affairs in Australia before departing.

1. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.

2. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration little weight in his favour.   

   Australia’s international obligations

3. The Tribunal asked the applicant whether there was any reason why he could not return to Pakistan. He responded that his mother’s expectations of him are very high. He stated that if he returns to Nepal without completing the course or anything much in Australia his mother will be very depressed and it will put her in a bad situation. He stated that his mother has been suffering from depression for over twenty years since the death of his father. He stated that that created a rough environment for him to grow up in. He stated that if he returns to Nepal and is exposed to that environment again it would be very difficult for his mental state and the well-being of his family.

4. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

   Any other relevant matter

5. The applicant gave evidence that he has a girlfriend in Australia. He stated that she is Nepalese and is on a Student visa. He stated that she is in her last semester. He stated that she wants to get married and stay in Australia. He stated that he sees no point in staying in Australia if he is unable to study.  

   CONCLUSION

6. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   L. Symons
   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.