Batra (Migration)

[2018] AATA 5665

Batra (Migration) [2018] AATA 5665 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Batra

CASE NUMBER:  1711929

HOME AFFAIRS REFERENCE(S):           BCC2017/1112176

MEMBER:Joseph Lindsay

DATE:4 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 December 2018 at 4:22pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – family financial difficulties – applicant changed enrolment to English course – motor vehicle accident – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 48, 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 26 May 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 did not comply with condition 8202(2)(a) of his visa, and the applicant was not enrolled in a registered course. In particular, the applicant has not been enrolled in a registered course of study from 15 July 2016 to 30 April 2017.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 18 September 2018 to give evidence and present arguments.  

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 affirmed.

   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. In the hearings, the applicant agreed that he had breached condition 8202(2)(a) as he had not been enrolled in a registered course of study from 15 July 2016. At the time of the hearing, the applicant was not enrolled in a registered course of study.

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 Procedures Advice Manual (PAM3) ‘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. In response to this issue at the hearing, the applicant indicated his main purpose in travelling to Australia was to study.

14. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was 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

15. In response to this issue at the hearing, the applicant indicated he had complied with his visa conditions apart from the condition that required him to remain enrolled in a registered course of study – condition 8202. In the hearing, the applicant indicated he knowingly breached condition 8202.

16. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

17. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship because it would not be good for his career to go back to India without his higher education qualification, and that his family would not be happy.

18. In consideration of the applicant’s response, the Tribunal accepts that the applicant may suffer some hardship if his visa was cancelled in the circumstances as he has detailed. However, the Tribunal notes that the applicant has completed accounting qualifications, including a Certificate IV in Accounting and a Diploma of Accounting. Accordingly, the Tribunal finds that the applicant is likely to be able to find work in his chosen field of endeavour should his visa be cancelled.

19. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

20. There is no evidence that the visa holder has been uncooperative with the Department in the past.

21. The Tribunal accepts that there is no evidence that the visa holder has been uncooperative with the Department in the past. Having taken this into consideration, I give these considerations some weight in the visa holder’s favour.

    Whether there would be consequential cancellations under s.140

22. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa.

23. The Tribunal places low 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

24. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

25. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

26. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. 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 chose not to return to India.

27. 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.

28. The Tribunal places low 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

29. There is no indication that there would be a breach of any international obligations if his student visa was cancelled.

30. The Tribunal places low weight on this information in the applicant’s favour.

    The circumstances in which the ground for cancellation arose

31. A large part of the applicant’s submissions relate to the circumstances in which the ground for cancellation arose, including:

    a.        the applicant’s response to the Department dated 24 May 2017.

    b.        the applicant’s submissions to the Tribunal dated 7 February 2018.

    c.        the applicant’s submissions to the Tribunal dated 13 September 2018.

    d.        the applicant’s submissions to the Tribunal dated 24 September 2018.

    e.        the applicant’s submissions to the Tribunal dated 1 October 2018.

32. In the applicant’s response to the Department dated 24 May 2017, the applicant indicated that he did not pay his tuition fees on time. The applicant indicated that he relied on his father to send him money to pay his course fees. The applicant indicated that his father was unable to send him the money due to health problems being experienced by his grandmother and that his grandmother passed away on 3 October 2016 – an event that caused him a lot of stress. The applicant indicated that his father had to pay for his grandmother’s medical bills. The applicant indicated that in the aftermath of his grandmother’s death, there was a dispute between his family members in regards to his grandmother’s estate. The applicant indicated that these two issues led to his father being unable to give him money to pay his course fees, a situation that caused his course enrolment to lapse. 

33. The applicant also indicated that another issue that affected his study was a motor vehicle accident that he was involved in on 29 June 2016.

34. The applicant’s written material provided to the Tribunal included:

    a.        a copy of his passport and apparent birth certificate,

    b. a copy of his mother’s passport and father’s passport, and mother’s year 10 certificate,

    c.        a copy of a letter of offer from Acknowledged Education dated 7 February 2018,

    d.        documents written in Punjabi and a non-NAATI translated ‘Agreement for Sale Deed’,

    e.        a document from IQBAL nursing home and hospital dated 3 February 2018,

    f. a document from the Federal Bank dated 5 February 2018 indicating that a fixed term deposit of 10,000 rupees exists in the applicant’s mother’s name,

    g. a document from the Federal Bank dated 5 February 2018 indicating that a fixed term deposit of 12,000 rupees exists in the applicant’s father’s name,

    h.        a death certificate dated 4 October 2016 in respect to Shanti Devi Sachdeva,

    i.documents from Zenith Business Academy dated 14 September 2015 including the applicant’s enrolment information, statement of results and certificates in respect to the applicant’s completion of a Diploma of Accounting and Certificate IV in Accounting.

35. The issues raised in the applicant’s written submissions about his circumstances were discussed during the Tribunal hearing. The following issues of concern were put to the applicant.

36. Applicant’s English skills: In the hearing, the applicant indicated that he enrolled in a course ‘General English 1-60 weeks.’ Noting that the applicant ceased his course enrolment in mid-2016, the Tribunal asked the applicant why he enrolled in an English course. The applicant indicated that he did not need to do the course, but he had nothing to do so he enrolled in the course. Noting the applicant’s visa was a 573 Higher Education visa, the Tribunal asked the applicant why he did the English course if it was not in keeping with his visa requirements. In response, the applicant indicated that he was aware that the English course was not a higher education course and would not be in compliance with his 573 visa. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

37. Course deferral: Noting the applicant’s problems with not being able to pay his course fees and the stress caused by his grandmother’s illness and death, the Tribunal asked the applicant why he did not apply to his course provider seek to deferral of his course. In response, the applicant did not directly answer the Tribunal’s question and instead indicated he had a difficult situation and felt helpless. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

38. The Tribunal put to the applicant that his parents would have known that by not giving him the money to pay his course fees that this situation would have caused him to be in breach of his visa conditions. In response, the applicant indicated that he spoke to his father before he withdrew from his course of study. The applicant indicated that before he withdrew from his course due to non-payment of fees, he knew he could not pay the fees. The applicant indicated that he knew he could not pay his course fees and that he was going to be in breach of his visa conditions, but he nevertheless did not attempt to seek a solution from his course provider or approach the Department with his situation because he was stressed. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

39. Death of applicant’s grandmother: The applicant indicated that his grandmother’s illness and death caused him a lot of stress and led to him not being able to pay his course fees. When the Tribunal asked the applicant whether he had any documentation linking his identity to his grandmother’s identity, he indicated he did not have any such documentation. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

40. Motor vehicle accident: The applicant claimed that he and his brother were involved in a motor vehicle accident in Melbourne on 29 June 2016. In support of his claims, the applicant provided a number of images of damaged cars. The Tribunal put to the applicant that the photos had no dates and no other information to assist the Tribunal to connect the images to the applicant’s claim.

41. The applicant claimed that his brother was driving the Honda Accord and he was the passenger. The applicant claimed that it was a very bad accident. When asked whether police attended, he indicated that only the fire brigade attended. When asked whether he had an incident report, he indicated he did not but that he would provide it after the hearing. The Tribunal notes that as at the time if this decision, no such documentation has been provided. When asked if he was injured in the accident, he indicated he was not injured and did not go to hospital or receive medical treatment.

42. The Tribunal indicated to the applicant that the events of the motor vehicle accident were separate to the issue of his studies. For example, the accident happened after he did not pay his course fees and before he withdrew from his course. In response, the applicant indicated he was stressed and he did not know what to do and that his brother tried to help him financially but he was unable to. The Tribunal put to the applicant that it was not the applicant’s brother’s responsibility to pay the applicant’s course fees, to which he agreed.

43. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Any other relevant matters

44. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise. 

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

    Conclusion

46. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 29 April 2014, now some four and a half years ago, the applicant has not completed any higher education courses.

47. The Tribunal finds that since 15 July 2016 the applicant has not been enrolled in a registered course of study at the higher education level and, accordingly, the applicant has not complied with condition 8202(2)(a).

48. The applicant knew that he was required to pay his course fees and he provided a financial guarantee to the Department before his visa was granted. The Tribunal finds that the circumstances that led him to not pay his course fees and not be enrolled in a registered course of study, as detailed above, are not exceptional circumstances.  

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

    DECISION

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

    Joseph Lindsay
    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.