Ajay (Migration)

[2024] AATA 2966

Ajay (Migration) [2024] AATA 2966 (7 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ajay

REPRESENTATIVE:  Ms Sonal Chaubal (MARN: 1791826)

CASE NUMBER:  2307069

HOME AFFAIRS REFERENCE(S):          BCC2022/5709126

MEMBER:David McCulloch

DATE:7 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 07 August 2024 at 11:11am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased studies – adverse study history – course cancellations – education provider deregistered – mental health issues – family bereavements – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 116, 140
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 15 May 2023 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 (Cth) (the Act).

2. The applicant is a citizen of India born on 26 October 1998. The visa that has been cancelled was granted on 12 March 2021 for a stay period until 22 December 2023.

3. The applicant was issued a Notice of Intention to Consider Cancellation of the visa (NOICC) on 12 April 2023. The applicant responded to the NOICC.

4. The delegate cancelled the visa on the basis that the applicant failed to be enrolled in a registered course and therefore breached condition 8202(2)(a) of the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 1 August 2024 at 9.30am to give evidence and present arguments.

6. The applicant was represented in relation to the review. The representative attended the hearing.

7. 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

8. 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 (Cth) (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?

9. 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: condition 8202(2)(a);

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: condition 8202(2)(b);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: condition 8202(2)(c)(i); and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: condition 8202(2)(c)(ii).

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

11. The delegate’s decision dated 15 May 2023 indicates that the applicant has not been enrolled in a registered course since 26 October 2021. The applicant’s written response to the NOICC agrees that there was no enrolment form from 26 October 2021.

12. The applicant in the hearing agreed that there was no enrolment in a registered course from 26 October 2021 until visa was cancelled on 15 May 2023.

13. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

14. 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’ and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

15. The applicant provided a submission in response to the NOICC providing explanations as to study difficulties and non-enrolment. Provided to the Tribunal was a submission on behalf of the applicant, an email statement of the applicant, together with supporting documents, including evidence of completion of studies in Australia, a psychological and medical report.

16. These statements, submissions and documents are referred below as they pertain to relevant discretionary issues.

    Purpose of the applicant’s travel to and stay in Australia

17. The government records of the applicant’s study history indicate that he was first enrolled in a Certificate III in Aviation (Remote Pilot – Visual Line of Sight) that commenced on 19 December 2016. The applicant has provided a certificate dated 24 January 2018 evidencing completion of this course. The applicant has provided a course transcript indicating being deemed competent in all 14 units.

18. The applicant has provided a Statement of Attainment in a Certificate IV in Automotive Mechanical Diagnosis indicating attainment in seven units.

19. The Tribunal notes that the government study records indicate this course commenced on 1 April 2019 until 27 September 2019.

20. The Tribunal notes that the applicant was enrolled previously in a Certificate III in Light Vehicle Mechanical Technology. This was due to commence on 9 October 2017. The applicant indicated in the hearing that the college began in fact with the Certificate IV and subsequently the applicant progressed with study of both the Certificate III and IV courses.

21. The applicant agreed that no units in any of these courses were passed beyond the Statement of Attainment dated 28 June 2018 indicating attainment in seven units.

22. The applicant indicated that he stopped studying in February 2019. This was because his girlfriend, who had travelled to India, planned to marry him. It was proposed that the applicant would then stay as a dependant on her student visa and not study.

23. However, in early 2021 the girlfriend’s parents did not agree to the marriage creating mental health difficulties for the applicant combined with other claimed issues.

24. The applicant indicated that he next studied a Certificate III in Light Vehicle Mechanical Technology at a different college that commenced on 25 January 2021. The applicant studied that course for three or four months before leaving. The applicant passed no units in this course.

25. From the middle of 2018, the applicant’s study history in Australia is extremely poor. He undertook no study from February 2019 until January 2021. He then only studied for three to four months passing no units. There is no subsequent study of the applicant from this time up until the visa being cancelled on 15 May 2023.

26. Apart from the first year and a half of the applicant’s study until the middle of 2018, for almost the next five years until the current student visa was cancelled, it had been a very significant failure by the applicant to progress in his studies in Australia consistent with him being here on a student visa. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

    Circumstances in which the ground of cancellation is made out – extenuating circumstances beyond the applicant’s control

27. The response to the NOICC and materials provided to the Tribunal explain and provide evidence of various claim explanatory factors for the period of non-enrolment and other study difficulties faced by the applicant.

28. It is indicated that during the years 2018 and 2019 AIBT college had a legal dispute with the Australian Skills Quality Authority (ASQA). It was followed by a scandal that the college was misleading its students with its immoral marketing practices. The college’s registration was in doubt and the future of students in jeopardy. The applicant believes that the matter is unsettled. The applicant was very stressed as to what happened to the college and his enrolment. He was feeling insecure with his qualifications and education at the college. At the college students and teachers would look distressed. Lecturers were not focused on doing their jobs. There was absenteeism and the lowering of teaching standards. It was not a pleasant place for students.

29. An article was provided which indicates that the education provider had its registration on 19 February 2019 cancelled for VET and CRICOS registration.

30. In the hearing, the applicant indicated that the cancellation of registration did not affect his course. He indicated the impact of the deregistration issues caused some disquiet but were minor. The representative indicated that other clients of his were more severely disrupted by the deregistration process.

31. It is submitted in written claims that the applicant suffered significant psychological distress in early 2021 following a relationship breakdown. This was exacerbated by the refusal of the parents of the girl to consent to marriage with the applicant. The applicant suffered severe psychological episodes, including suicidal ideation. The partner moved away from Sydney to Canberra deserting the applicant at a young age. The applicant has provided a report from Hamid Attai, psychologist, dated 19 July 2024 which indicates that the applicant’s mental health began to significantly decline from mid-2021 over issues with his partner. This was exacerbated by the death of the applicant’s grandfather. The applicant was diagnosed with COVID-19 and was in financial hardship.

32. The report indicates that the applicant’s mental status is consistent with a diagnosis of major depressive disorder, with anxious distress, severe, as outlined in the Diagnostic and Statistical Manual of Mental Disorders. The psychologist indicates that his psychological debilitation caused the applicant to be unable to attend to his coursework in 2021/22 resulting in his fees being cancelled. The psychological issues severely disrupted his day-to-day functioning including his ability to study. The applicant was self-medicating with alcohol and experiencing sporadic suicidal ideations. It was recommended that the applicant continue a course of psychological treatment with the writer on a fortnightly to monthly basis for three months after which he will be reassessed.

33. A death certificate of the applicant’s grandfather has been provided.

34. The applicant’s written statement indicates that his mother’s health has been unstable and she was upset and cried at the applicant’s injury (see below). The applicant refers to difficulties due to his car breaking down.

35. The submission also indicates that the applicant’s uncle died in addition to his grandfather which had an emotional adverse impact on the applicant.

36. It is also submitted that shortly after the relationship breakdown, the applicant sustained a physical injury that resulted in loss of employment and subsequent financial hardship. This happened in the middle of COVID-19. Provided is a report from Dr M Alamgir, Harris Park Radiology which indicates that the applicant has pain over the Achilles tendon.  It is concluded that the applicant has mild Achilles insertional tendinosis and subtle retrocalcaneal bursitis.

37. The various claimed extenuating circumstances were canvassed in the hearing. The Tribunal asked the applicant why he waited a number of years to obtain help for his mental health issues. In response, the applicant indicated that he didn’t know how to proceed and the cost of psychological assistance was not covered by his insurance.

38. The Tribunal notes that the claimed mental health issues caused by the relationship breakup began in early 2021 which therefore is not a cause of no study from February 2019 until January 2021.

39. The Tribunal noted in the hearing that the medical report of his leg injury in June 2022 indicated that his Achilles condition was mild. The applicant indicated that the condition caused him to lose his job. The applicant indicated that he recovered after about a month.

40. The applicant at the hearing referred to the hardship caused by the death of his grandfather and uncle.

41. The Tribunal put to the applicant that while it might make some allowances for the combined effects of the various explanatory factors described, it was hard to accept that they could justify an excuse in the period of many months of non-enrolment combined with the longer period of no study or study without passing any units.

42. The Tribunal considers given the applicant’s evidence in the hearing that the issues relating to the status and registration of his initial education provider were minor, contrary to written claims, which the Tribunal considers to have been exaggerated. The Tribunal accepts that the applicant suffered an injury to his Achilles which he recovered from within a month. This in itself does not justify or explain the much more significant length of non-enrolment and other periods of lack of study.

43. The Tribunal noted to the applicant that if there were medical or other extenuating circumstances he should have sought a deferral of a registered course on those grounds which would have facilitated the applicant complying with his visa condition to be enrolled but facilitating a break to deal with those issues.

44. In response, the applicant indicated that he has no one to blame but himself, that he was in a very shut down and desperate situation and pleads to be given one last chance.

45. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify or explain his failure to be enrolled in a registered course for the significant period of 19 months. This conclusion is reached particularly considering that if there were medical issues or other extenuating circumstances, he could have maintained enrolment and sought a deferral on medical or compassionate grounds.

    Hardship if the visa remains cancelled

46. In the written response to the NOICC the applicant refers to hardship if the visa remains cancelled. The applicant indicates that he has been in Australia since 2016 and has invested a large amount of funds to obtain qualifications to achieve career goals. He is planning to finally complete his study and become a successful automotive mechanic. Six years of hard work by the applicant and his family to fund his education will be in vain. The applicant’s parents will go into severe depression if the visa is cancelled. The community plays a big factor in small towns in India where the applicant’s family reside. His family will be ridiculed and shamed in the community leading to mental health issues for them.

47. In the hearing, the applicant indicated that in the preceding weeks he had started studying an Advanced Diploma of Information Technology. He has attended his institution on two occasions. The applicant indicates that his current desire is to finish this course and return to India where it is intended that he and his brother will open a technology business.

48. This is in contrast with claims elsewhere the applicant would then proceed to study in Australia a Diploma of Light Vehicle Technology.

49. The applicant indicated in the hearing that the hardship if the visa remained cancelled would be his inability to progress with his desired studies in Australia to facilitate a career in India and a waste of his time in Australia.

50. Albeit that there is a difference in evidence as to the applicant’s intentions, the Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of pursuing study intentions in Australia as a foundation for career options in India.

51. The Tribunal accepts some hardship as a result of wasted time and opportunities in Australia and family disappointment or disapproval of the applicant’s lack of successful study progress in Australia, as well as the adverse views of others connected with him and his family in India.

    Other factors

52. In the hearing the applicant indicates that he does not fear persecution or significant harm on return to India. Thus, Australia’s non-refoulment obligations are not relevant.

53. The applicant indicated that there are no children in Australia whose interests are affected by the cancellation.

    Request for leniency

54. The written submission on behalf of the applicant concludes that the applicant has faced considerable personal, familial, financial and educational disruptions, many of which were beyond his control. Despite this he has shown remarkable resilience and determination to continue with his studies. Leniency is requested and an opportunity for the applicant to complete the Diploma in Information Technology leading to the Diploma of Light Vehicle Technology, aligning with his long-term career aspirations.

55. The written statement by the applicant acknowledges wasted opportunities. He apologises for that. It indicates that he is aware he has ‘no legal leg to stand on’, but asks to be given one more chance to prove himself.

56. The applicant made similar pleas in the hearing.

    Conclusions on discretionary factors and weighing discretion

57. The Tribunal considers that the applicant in the hearing was candid and honest about his circumstances and reasons for non-enrolment in a poor study history.

58. While the Tribunal has some sympathy for the various difficulties faced by him including as a result of, a relationship breakup, family bereavement, COVID-19, and mental health issues, they do not, in the Tribunal’s assessment, cumulatively operate to indicate extenuating circumstances beyond the applicant’s control for the long period of non-enrolment, as well as the other very significant periods of lack of study.

59. While the Tribunal may have made allowances as a result of the factors claimed for lesser breaches they do not operate to explain or justify the significant breach in this matter, particularly in the context where the applicant could have maintained enrolment and sought a deferral on medical or compassionate grounds.

60. The Tribunal is not satisfied that the hardship to the applicant if the visa remains cancelled or any other extenuating factors in his favour overcome the discretionary factors adverse to him.

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

    DECISION

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

    David McCulloch
    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.