Amit Kumar (Migration)

[2020] AATA 1300

Amit Kumar (Migration) [2020] AATA 1300 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Amit Kumar

CASE NUMBER:  1826650

HOME AFFAIRS REFERENCE(S):          BCC2018/729308

MEMBER:Wendy Banfield

DATE:3 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 February 2020 at 8:41pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course ceased – applicant’s difficulties with initial English studies – family’s large financial investment in applicant’s studies – applicant’s difficulties seeking new enrolments – recommenced degree course – genuine student – decision under review set aside

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 5 September 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 had not complied with condition 8202 attached to his Student visa as he had not been enrolled to study for 10 months, from 24 July 2017 to 24 May 2018. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 22 years old. He came to Australia to study English course and a Bachelor of Business in Perth. The applicant did not pass the English requirement and was unable to commence the Bachelor degree. The applicant sat an IELTS test but did not meet the requisite score. He then moved to Sydney and enrolled in a Diploma and Bachelor of Business but discontinued due to a lack of student support. As of the time of the hearing, the applicant is enrolled and studying a Bachelor of Community Services.

4. The applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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).

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

10. The applicant was not enrolled to study for the period identified by the Department, between 24 July 2017 and 24 May 2018. The applicant explained his activities since arriving in Australia and his difficulty re-enrolling after July 2017 but did not dispute he had breached the conditions of his Student visa.

11. 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

12. 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 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

13. The applicant came to Australia as the holder of a Subclass 573 visa to study a Bachelor degree. He began an English course and has completed some studies in Australia as well as currently being enrolled in a Bachelor degree.  On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

14. The applicant gave evidence that his parents expect him to complete his education in Australia and have paid a significant amount of money towards his studies. He also explained that Australian qualifications are in demand in his home country. The Tribunal is not satisfied the applicant has demonstrated what could be considered a particularly strong or compelling need to remain in Australia and does not place any weight on the stated reasons for needing to remain in Australia.

    ·     the extent of compliance with visa conditions

15. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has given some weight in his favour on this consideration. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

16. The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled.

17. The applicant made submissions regarding the financial and emotional hardship that would be caused if his visa is cancelled. The applicant stated his parents have paid $25,000 towards his studies, including the course that he began in 2018. He said his mother was sick and he does not want to disturb her emotionally. According to the applicant he had considered returning home but his parents wanted him to continue. The Tribunal accepts there will be a degree of hardship caused if the applicant’s visa is cancelled and affords weight in his favour when assessing this criterion.

18. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     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

19. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for approximately 10 months. The applicant gave reasons for this, he submitted that he had been enrolled in a Diploma and Bachelor of Business but did not find the course suitable and did not continue. The applicant provided evidence that he had difficulty enrolling anywhere after July 2017 but did obtain a letter of offer to study a Bachelor of Information Technology. The offer letter is dated March 2018, however, the applicant decided it was not the right field and ultimately did not enrol.

20. The applicant then received a letter of offer to study a Bachelor of Community Services which he accepted and began in May 2018. The applicant was studying this course at the time of the hearing in December 2019. The applicant provided a letter from his current education provider confirming his attendance and also submitted a transcript. It appears from the transcript that the applicant failed some subjects in his first semester which he put down to the stress of his visa being cancelled. He has now completed subjects in his second semester and has been able to demonstrate he is capable to studying at a tertiary level. 

21. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study in breach of visa conditions. Nevertheless, the Tribunal is satisfied the applicant did take steps to try and re-enrol as evidenced by a letter of offer during the relevant period. In the applicant’s favour is the fact that he sought appropriate advice from his migration agent and re-enrolled in a Bachelor degree while awaiting a review of the Department’s decision. This provides some indication to the Tribunal that the applicant is a genuine student. Together with the applicant’s consistent explanation of his situation, the Tribunal gives some weight in favour of the applicant on the circumstances in which the ground for cancellation arose.

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

22. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department. He responded to the Department’s Notice of Intention to Consider Cancellation and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

24. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

25. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

27. The applicant gave evidence (including some medical certificates) that he had difficulty adjusting to his studies in Australia and also suffered depression. In addition he provided evidence that his mother in India was unwell. Together with the remainder of the evidence in this case, the Tribunal places a little weight on these matters in the applicant’s favour.

    Conclusion

28. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are certainly aspects of the applicant’s case that weigh against him, on balance, the Tribunal considers he should be given the opportunity to demonstrate his academic plans are sincere and he is a genuine student. The Tribunal is satisfied the issues encountered by the applicant in this particular case and his subsequent behaviour in continuing to study are sufficient reason for the visa not to be cancelled.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Wendy Banfield
    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.