Wangdi (Migration)

[2020] AATA 4251

Wangdi (Migration) [2020] AATA 4251 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ugyen Wangdi

CASE NUMBER:  1905142

HOME AFFAIRS REFERENCE(S):          BCC2019/185306

MEMBER:Joseph Lindsay

DATE:16 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 September 2020 at 2:52pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – cancellation – not enrolled in registered course – enrolment cancelled for non-payment of fees – breakdown of marriage – genuine temporary entrant – de facto relationship with Australian citizen – intention to apply for partner visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212, Schedule 8, conditions 8202(2)(a), 8516

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 February 2019 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. On 15 September 2020 the applicant attended a hearing by audio with the Tribunal. The applicant’s representative also attended the hearing by audio with the Tribunal. The applicant did not require the assistance of an interpreter.

3. 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

4. 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?

5. 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).

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

7. As part of his application for review, the applicant provided a copy of the delegate’s decision to the Tribunal and the Tribunal has considered the information in that decision.

8. In the hearing, the applicant indicated that he had read and understood the delegate’s decision record dated 25 February 2019.

9. The applicant agreed that he had not been enrolled in a registered course of study since 8 June 2018 and that there were grounds for cancellation of his student visa.

10. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 8 June 2018. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. 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 Procedural Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

12. In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered course of study since 8 June 2018.

13. The Tribunal referred to the email the applicant had provided to the Department in his response to the Notice of Intention to Consider Cancellation (NOICC) dated 19 February 2019 in which he stated the following:

    This is in response to a letter of notification of intention to consider cancellation of Student (Temporary) (class TU) Student (subclass 500) visa under section s116 (General Power) of the Migration Act 1958 of;

    Client name; Ugyen Wangdi

    [Date of birth]

    Cancellation ID; C6ZTHS5VD

    File number; BCC2019/185306

    As per the visa condition, my visa could be cancelled as I did not enrol in any of the courses since June 2018. However, I would like to submit the reasons which may be acceptable to you to avoid cancellation.

    1.       I did not enrol for the courses because I was intending to apply for Partner Visa as I was informally married and living together with an Australian citizen. However, later on I learnt that I need to complete at least one year of living together.   

    2.        As of now, I am compiling the documents to apply for partner visa as one year of living- together will be completed in the month of May 2019.

    3.       You may also contact [Ms A] at [mobile number] or [email] who lives with me at [property address] since from last year. which is rented under O'corner Real Estate office in East Brisbane. i have also attached some photo ID like passport copy and medicare card.

14. Attached to the email was the following documentation:

    -A copy of a Proof of Age Card issued by Queensland Government for [Ms A];

    -A Copy of an Australian Passport for [Ms A]; and

    -A Medicare card for [Ms A].

15. The applicant agreed that he had provided this information to the Department. In further discussion with the Tribunal, the applicant indicated that the reason why his course provider cancelled his course enrolment was because he did not pay his course fees in full. The applicant explained that he experienced difficulties, including financial difficulties, in regard to his then wife. He indicated that he and his wife separated and she returned to Bhutan in 2017.

16. When asked how his circumstances were exceptional circumstances or beyond his control, he indicated that his financial difficulties led to him having difficulty in paying his course fees in full. He indicated that having limited hours to be able to work on the student visa limited his ability to earn enough money.

17. When the Tribunal put to the applicant that as part of being granted a student visa he had given a financial guarantee that he could afford to pay his student fees and to support himself, he agreed that he had provided such a financial guarantee.

18. The Tribunal asked the applicant how his intent to apply for a partner visa, which is a permanent visa, indicates that he is a genuine temporary entrant and that he only intends to stay in Australia temporarily as a student. In response, the applicant indicated that he would like to stay in Australia. 

19. In respect of the above, the Tribunal makes the following findings.

20. The Tribunal accepts that the reason why the applicant’s course provider cancelled his course enrolment was because he did not pay his course fees in full. The Tribunal accepts that the applicant experienced difficulties, including financial difficulties, in regard to his then wife. The Tribunal accepts that the the applicant and his then wife separated, and she returned to Bhutan in 2017. However, given the applicant’s wife returned to Bhutan in 2017 but his course enrolment was cancelled in 2018, the Tribunal is not entirely satisfied that the applicant’s relationship breakdown in 2017 fully explains why the applicant failed to pay his course fees in full and had his course enrolment cancelled in 2018. However, the Tribunal has given the applicant the benefit of the doubt and accepts that the applicant experienced some financial difficulty due to his relationship breakdown and that this may have contributed in some way in him being unable to pay his course fees in full. Likewise, the Tribunal accepts that the applicant’s limited work hours may have also contributed in some way in him being unable to pay his course fees in full. With respect to these matters, the Tribunal gives the applicant some weight in his favour. However, the Tribunal places heavier weight against the applicant on the financial guarantee that the applicant provided that he could afford to pay for his course fees and to support himself whilst in Australia on a student visa. It is regretful that the applicant was not able to afford to pay his course fees in full. Nevertheless, as the holder of a student visa, the applicant is required to maintain his enrolment in order to maintain compliance with his visa conditions, and the Tribunal places high weight on this matter against the applicant.

21. The Tribunal has also considered that the applicant wishes to stay in Australia and he wishes to apply for a partner visa. Even though he indicated back in February 2019 that he intended to apply for a partner visa, he indicated that he still has not yet applied for a partner visa. However, the applicant made clear that he wishes to stay in Australia and he wishes to apply for a partner visa. The Tribunal acknowledges the applicant’s wishes in this respect. However, in making these submissions, the Tribunal has concerns about whether the applicant is a genuine applicant for entry and stay as a student and whether he intends genuinely to stay in Australia temporarily, as required by cl.500.212 of Schedule 2 to the Regulations. Based on the applicant’s submissions that he wishes to stay in Australia and he wishes to apply for a partner visa, the Tribunal is not satisfied that the applicant is a genuine temporary entrant.

22. In all the circumstances as detailed above, the Tribunal does not accept that the applicant took reasonable steps to maintain compliance with his obligation to remain enrolled in a registered course of study under visa condition 8202. Accordingly, the Tribunal places high weight on this information against the applicant.

23. In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances. Accordingly, the Tribunal places high weight on this information against the applicant.

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

24. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

25. In addition to the applicant’s failure to comply with condition 8202, the Tribunal has concerns that in not being a genuine temporary entrant the applicant may have also breached condition 8516 (The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa), the primary condition being that the applicant is a genuine applicant for entry and stay as a student and whether he intends genuinely to stay in Australia temporarily, as required by cl.500.212 of Schedule 2 to the Regulations. Accordingly, the Tribunal finds that, in addition to condition 8202, the applicant has also failed to comply with condition 8516 of his visa conditions because the Tribunal is satisfied that the applicant no longer continues to be a person who would satisfy the primary criteria for the grant of the visa. 

26. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

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

27. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

28. In response, the applicant said that his mother died on 21 March 2020 and that it would have been her wish to see him get a bachelor’s degree.

29. The Tribunal accepts that there may be some disappointment caused to the applicant, included in respect to his deceased mother’s wishes, if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

30. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

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

31. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

32. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

33. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Bhutan.

34. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

35. The Tribunal accepts that COVID-19 is an issue at the present time and accepts that there may be practical difficulties in the applicant returning to his country of origin at the present time.

36. The Tribunal places some weight on this information in the applicant’s favour.

    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

37. The Tribunal asked the applicant if he feared anything in returning to Bhutan. In response he said he had no fears if he went back to Bhutan.

38. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

39. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

40. In respect to whether there were any other relevant matters he wished to discuss, the applicant again indicated that it would have been his deceased mother’s wish to see him get a bachelor’s degree. The Tribunal has addressed this issue above.

41. When the Tribunal asked the applicant if there was anything that the Tribunal had not asked him about that the Tribunal should ask him about, he indicated that there were no further relevant matters he wishes to raise with the Tribunal.

42. When the Tribunal asked the representative if he wished to make oral or written submissions, the representative indicated that he had no oral or written submissions that he wished to make.

    Conclusion

43. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

44. In balancing the circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

45. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay
    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.