Tuladhar (Migration)

[2019] AATA 5892

Tuladhar (Migration) [2019] AATA 5892 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashraya Ratna Tuladhar

CASE NUMBER:  1801124

HOME AFFAIRS REFERENCE(S):           BCC2017/3805393

MEMBER:Peter Booth

DATE:9 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 October 2019 at 9:21am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – family illness – applicant granted one year deferral – unsatisfactory academic progress – 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 12 January 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 in breach of condition 8202 (2) (a). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 23 September 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

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 applicant informed the Tribunal at the hearing that he had read and understood the delegate’s decision cancelling his student Visa. He understood the issue giving rise to the cancellation was his failure to be enrolled in a course of study. The delegate found that the applicant had not been enrolled in a registered course of study since 24 April 2017. The date of the delegate’s decision is 12 January 2018. The applicant confirmed that on 12 January 2018 he had not been enrolled in the course of study since 24 April 2017. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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’

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

    ·     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

    ·     The applicant arrived in Australia on 29 January 2013 is the holder of a student Visa (subclass 500). He informed the tribunal that he intended to study a bachelor of information technology. The applicant gave no evidence that he had a compelling need to travel to or remain in Australia.

    ·     The extent of compliance with visa conditions

    ·     The applicant gave evidence at the hearing that he was not enrolled in a registered course of study from April 2017 until November 2018. He confirmed that as at the date of the delegate’s decision he had not been enrolled in a course registered study since April 2017. Accordingly the applicant was in breach of condition 8202 (2) (a).

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

    The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    ·     Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    ·     The applicant gave evidence that he completed a Diploma of information technology in “2015”, although he was somewhat vague about the precise date. He said that he then commenced a Bachelors degree of information technology in about “2015, February” but that he did not complete this course. In answer to a question by the Tribunal he said that he was not excluded for unsatisfactory academic performance but abandoned the course. He said that he study for about “one year” and abandoned the course in 2017. It was this abandonment which caused him to be not enrolled. The tribunal enquired why he abandoned the course of study. He informed the tribunal that his grandmother was sick, “I was worried”, and that “I was stressed”. In answer to question from the tribunal he said that his grandmother became ill in 2017 “around April”. In answer to a question from the tribunal he said that his grandmother was suffering from “depression and dementia” and that at the time she was 70 years of age. The applicant said that he had applied to defer the course and which application was successful. He said the education provider gave him a deferral for “one semester  “ and that he was supposed to return to study in “ June or July 2017 “. The Tribunal enquired if applicant could produce the letter of deferral from the course provider. The applicant said he had it in his “emails” and agreed to provide the document on 23 September 2019. Subsequent to the hearing the applicant produced several documents but did not produce documentary confirmation of the deferral from the course provider. He provided terms and conditions of the Australian Catholic University, a letter from the Australian Catholic University offering him a place in the Bachelor of information technology course and a confirmation of enrolment in that course. The Tribunal does not accept that the applicant was granted a deferral of the course in the absence of documentary corroboration. The applicant also provided a series of photographs of medical reports from an Indian hospital which are said to confirm his grandmother’s illness. The applicant gave no evidence of his grandmother’s name accordingly photographs hospital records of an unknown person are of little assistance and the Tribunal gives this evidence no weight. However the Tribunal does accept that the applicant’s grandmother was ill as he described at the hearing. Apparently the applicant returned to study as he said “I came back and enrolled, but could not attend classes”. He said that he could not concentrate on day-to-day activities and studies. He added that he did not attend any classes at all. In answer to a question from the Tribunal he said that he did not apply for a further deferral of his studies. When asked why he said that he was” not ready to study “but otherwise he could not explain why he did not apply for a further deferral. The Tribunal notes that the assertion of re-enrolment in June or July 2017 is inconsistent with his earlier evidence and not supported by any documentary proof. However the applicant’s evidence about his study history was confused and he appeared having difficulty remembering the sequence of events and dates. Nothing turns on this because he had earlier affirmed that he was not enrolled after April 2017 as found by the delegate. In any event the applicant said that when he received the email informing him of the Visa cancellation he did several things. First “I applied for a review of my case” and secondly “I tried to enrol again”. He gave evidence that the enrolled in a Bachelor of information technology at Kings Own Institute. He produced a certificate from that course provider dated 16 September 2019 stating that he was enrolled in a Bachelor of information technology from 5 November 2018. The Tribunal enquired whether the applicant studied between January 2018 and November 2018, to which he replied that he did not. The applicant also produced a statement of academic record from the bachelor of information technology course which indicated he was progressing in his studies a certificate of completion of the diploma of business Information Systems course from Australian Catholic University, and an academic transcript from Australian Catholic University in respect of the diploma in business Information Systems course. The Tribunal also observed that his migration agent had provided to the tribunal on 16 September 2019 a series of academic transcript groups and other documents relevant to his secondary studies in Nepal. In response to a question from the Tribunal the applicant said that he had not returned to Nepal since April 2017. Further he said that his grandmother was “better now” but that she “still has dementia “, although her depression “has gone down”. It appears therefore from the applicant’s evidence that he did not study for a period of approximately 18 months, namely from April 2017 until November 2018. This was said to be because he was “stressed “ about his grandmother’s “ dementia and depression “. The applicant gave evidence that he did not seek any treatment for his own “stress”. The applicant sought and was granted a deferral of his studies for one semester in 2017 however he did not apply for any further deferral of his studies and did not return to study at the first institution at all. The Tribunal is unconvinced by the applicant’s explanation for not studying for approximately 18 months for several reasons. First he did not return to his home country to visit his grandmother. Secondly he did not return to study at after being granted a deferral. Thirdly he did not actively try to return to study until receipt of the delegate’s decision cancelling his student Visa. Having obtained a deferral of his course the applicant was well aware of the process of deferral but did not avail himself of it for a second time. Accordingly the tribunal does not accept that the applicant’s reasons for not being enrolled beyond his control.

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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Whether there would be consequential cancellations under s.140

    The Tribunal was provided with no evidence on this point and gives it little weight.

    ·     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

    The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    ·     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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

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

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·     Any other relevant matters.

    There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.