Wangdi (Migration)

[2019] AATA 5574

Wangdi (Migration) [2019] AATA 5574 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jimmy Wangdi

CASE NUMBER:  1730927

HOME AFFAIRS REFERENCE(S):          BCC2017/3015305

MEMBER:P. Maishman

DATE:29 August 2019

PLACE OF DECISION:  Perth

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

Statement made on 29 August 2019 at 1:27pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – family bereavement in Bhutan – negotiations with educational institution – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

Hasran v MIAC [2010] FCAFC 40     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 December 2017 made by a delegate of the Minister for Immigration and Border Protection 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 had not complied with condition 8202(2)(a) which required the applicant to continue to be 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.

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

4. On 18 April 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information about:

   a.whether he was enrolled in a registered course between 8 February 2017 on 7 August 2017;

   b.any circumstances in which the ground of cancellation arose;

   c.whether the applicant has a compelling need to remain in Australia;

   d.compliance with visa conditions generally, including any previous visas;

   e.the hardship that may be caused to him or his family or anyone else connected to the visa if the visa is cancelled; and

   f.any other matter he considered relevant.

5. The invitation was sent to the registered migration agent’s last address provided in connection with the review and advised that, if the information was not provided in writing by 2 May 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

7. On 4 June 2019 the registered migration agent gave the Tribunal a short submission about the applicant’s circumstances and a copy of the documents provided to the Department.

8. 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

9. The applicant gave the Tribunal a copy of the delegate’s decision record with his application for review. The applicant is a citizen of Bhutan. The applicant was granted a subclass 573 visa for the period 27 June 2014 until 15 March 2018 and was required to comply with condition 8202 will. The Department obtained records from the Provider Registration and International Student Management System (PRISMS) that indicated that the applicant was not enrolled in a registered course of study for the period 8 February 2017 to 7 August 2017. The Department gave the applicant notification of its intention to consider cancellation of his student visa (NOICC) on 9 October 2017 and invited the applicant to respond in writing. The applicant provided a statutory declaration dated 16 October 2017 in response. The Tribunal had before it a copy of the Department’s file containing the documents provided by the applicant with his response.

10. In response to the Tribunal’s request dated 18 April 2019, the applicant provided the same documents with a brief submission from his registered migration agent.

11. 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?

12. 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).

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

14. The delegate’s decision record says that a condition of the applicant’s visa was that he was required to be enrolled in a registered course. The delegate’s decision record notes that the PRISMS record showed the applicant was not enrolled in a registered course of study between 8 February 2017 and 7 August 2017. The applicant declared on 16 October 2017 that he was not enrolled in a registered course of study between those dates and said there were factors the Department should consider.

15. The Tribunal finds the applicant was the holder of a student visa (subclass 573) and was required to comply with condition 8202(2) to be enrolled in a registered course. The Tribunal finds the applicant was not enrolled in a registered course between 8 February 2017 and 7 August 2017.

16. 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

17. 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’.

18. The applicant provided a statutory declaration in response to the Department’s NOICC. The delegate’s decision record address the applicant’s claim that the death of his brother and causing distress and affected his studies. The delegate was concerned that the applicant provided no evidence of his emotional or mental health during the period up to the date his enrolment was cancelled. The delegate was concerned that the applicant had provided no evidence of the death of his brother.

19. The Tribunal observes that emails between the applicant and the program manager at the education institution dating back from August 2015 address the difficulties that the applicant was experiencing with his studies. An officer from the Department of Education Services advised the applicant that he had previously been asked for evidence by the educational institution when they were considering his situation. He was advised he needed to obtain a death certificate to support his stated reasons for not being able to continue with his studies. The officer referred the applicant to an Internet site where he could obtain a death certificate from Bhutan.

20. The applicant’s representative has provided a submission reiterating that the applicant’s brother’s death caused the applicant to be mentally disturbed and unable to attend regular classes. The representative also claims the applicant’s mental health issue was compounded by the breakup of an eight year relationship with his high school girlfriend. The Tribunal notes the applicant made no claim about his relationship breakdown in his statutory declaration dated 16 October 2017.

21. The lack of evidence supporting the applicant’s claims about the death of his brother and the medical impact on the applicant was noted in the delegate’s decision record. The applicant has provided no further evidence to the Tribunal than was before the Department. The Tribunal is of the view that the applicant has had ample opportunity to obtain evidence to support his claim in respect of his brother and his mental health. The Tribunal infers that the applicant has not provided evidence about his brother’s death or the applicant’s consequent medical condition because the evidence does not exist. The Tribunal gives the migration agent’s submission about the breakup of the applicant’s relationship no weight because the applicant did not mention it in his statutory declaration signed on 16 October 2017 and did not provide an amended statutory declaration to confirm that was his evidence. Accordingly the Tribunal gives the applicant’s claims about the death of his brother, the breakup of his relationship and the consequential mental health issues no weight in considering if the discretion to cancel the visa should be exercised.

22. The applicant claims in his response to the NOICC that he was given wrong information by his education agent that he would not need to study maths as part of his Diploma of Commerce. The applicant claims to have struggled with the maths component of the course which caused him a lot of stress and he ended up failing the course. There is no documentary evidence that the applicant was enrolled in a Diploma of Commerce. Email correspondence provided by the applicant indicates that the applicant was enrolled in a Diploma of Hospitality which was cancelled because of his non-attendance. The Tribunal gives the applicant’s claim that he was given wrong information by his education agent no weight in considering if the discretion to cancel the visa should be exercised.

23. Evidence contained in the email correspondence between the applicant and the education institution says that in August 2016 the institution was concerned about the applicant’s non-attendance during term three. On 6 January 2017 the institution formally notify the applicant of its intention to cancel his enrolment due to non-progression and absenteeism from studies in a Diploma of Hospitality course. On 7 February 2017 the institution notified the applicant his enrolment had formally been cancelled.

24. The Tribunal considered the circumstances in which the applicant’s enrolment was cancelled. The Tribunal finds the applicant’s enrolment in a registered course was cancelled because he failed to meet satisfactory attendance requirements. The Tribunal is not satisfied on the evidence that the applicant suffered any physical or psychological condition, or that there were any other circumstances beyond his control, that cause the applicant to be unable to attend his course.

25. The Tribunal considered the applicant’s purpose to travel to and stay in Australia, and whether he has a compelling need to travel to or remain in Australia.

26. The applicant declared in his response to NOICC that he came to Australia in 2014 to obtain a first-class education. He intended to obtain a Bachelor Degree and return to Bhutan. He enrolled in a package of courses and completed the English language course and then commenced a Diploma of Commerce. The applicant failed the Diploma of Commerce and enrolled in a Diploma of Hospitality. The applicant’s enrolment in the diploma of hospitality was subsequently cancelled on 7 February 2017. The applicant provided confirmations of enrolment dated 8 August 2017 for a Diploma of Community Services starting 31 August 2017 and ending 30 August 2018; and Advanced Diploma of Community Sector Management commencing 6 October 2018 and ending 13 July 2019.

27. The applicant’s migration agent submits that the applicant is now enrolled in a registered course leading to a Bachelor’s degree. The migration agent submits the applicant is progressing in college.

28. The Tribunal notes the applicant provided no further information about his progress in study. The confirmation of enrolments dated 8 August 2017 show the applicant paid a tuition fee to 6 October 2017 only and do not demonstrate that the applicant is progressing in his studies. The Tribunal gives little weight to a certificate of attendance dated 13 October 2017 indicating that the applicant has 90% attendance in his Diploma of Community Services study given the certificate was provided a little over five weeks after the commencement of the course. The evidence before the Tribunal does not support the migration agent’s submission that the applicant continues to be enrolled in and progressing in his studies.

29. There is nothing to suggest that the applicant’s travel to Australia was motivated by anything other than study. The Tribunal is concerned that the applicant’s change in direction from studying Business to Hospitality to Community Services and lack of demonstrated progress in either of those courses suggests there may be another purpose for his stay in Australia. There is no evidence before the Tribunal of a compelling need for the applicant to travel to or remain in Australia.

30. The Tribunal considered the extent of the applicant’s compliance with his Visa conditions. There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions. The applicant did not comply with the condition of his student visa when he failed to maintain his enrolment in a registered course of study from 8 February 2017 to 7 August 2017.

31. The Tribunal considered the degree of hardship that might be caused. The applicant declared that his parents had spent a lot of money on his studies and living expenses and he did not want to let them down. His parents expect him to complete his Degree in Australia. The applicant says he is concerned that he will be unable to pursue his intended field of work in community services for does not complete his studies. The applicant’s migration agent submits that the applicant would be emotionally and psychologically traumatised if he was unable to finish his studies.

32. The Tribunal notes there is no evidence other than the applicant’s assertions about the hardships he might endure. The Tribunal acknowledges there may be some emotional, psychological and financial hardship and takes this into account in considering the exercise of the discretion to cancel the visa.

33. There is nothing in the applicant’s behaviour towards the Department that warrants the cancellation of his visa.

34. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa will result in consequential cancellations under s.140 of the Act.

35. There is no information before the Tribunal that shows that the cancellation would result in a breach of Australia’s international obligations.

36. If the student visa is cancelled, the applicant may become an unlawful noncitizen. The applicant may become liable to detention under under the Migration Act if he does not get a bridging visa or leave voluntarily. In future the applicant would also have to satisfy Public Interest Criterion 4013 which may prevent the grant of a visa for up to 3 years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa not be cancelled.

37. The Tribunal has had regard to the matters raised by the applicant and his migration agent, and set out in the Department’s policy document, and is not persuaded that the discretion to cancel the visa should not be exercised.

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

    DECISION

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

    P. Maishman
    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.