Bhullar (Migration)

[2022] AATA 3557

Bhullar (Migration) [2022] AATA 3557 (8 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurkirpal Singh Bhullar

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2201653

HOME AFFAIRS REFERENCE(S):          BCC2020/802730

MEMBER:Christine Kannis

DATE:8 October 2022

PLACE OF DECISION:  Perth

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

Statement made on 08 October 2022 at 11:53am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to comply with condition of visa – not enrolled in full-time registered course – completion of lower-level courses then cessation, non-commencement and non-payment of higher-level courses – parents’ financial problems, applicant’s mental health and COVID restrictions – new enrolment made shortly before department’s notice issued now cancelled – discretion to cancel visa – no supporting evidence provided – no extenuating or compassionate circumstances or compelling reasons to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas StudentsAct 2000 (Cth), s 19(3)

CASE
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 February 2022 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 delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams video on 4 October 2022 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review.

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 (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?

8. The applicant was granted his initial Student visa 22 September 2015 and arrived in Australia on 30 September 2015. This Student visa ceased 21 May 2019.   

9. On 5 July 2019 the applicant was granted a further Subclass 500 (Student) visa with condition 8202 attached. As part of his visa application he provided his Advanced Diploma of Hospitality Management, which he completed on 21 May 2019. The applicant identified he had a letter of offer for a Bachelor of Business from Group Colleges Australia to commence study on 2 September 2019.

10. 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: 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: 8202(2)(b)

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

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

11. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

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

13. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

14. The information from the PRISMS shows that the applicant has not been enrolled in a registered course of study since his enrolment in a Bachelor of Business was cancelled on 28 August 2019.

15. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 28 August 2019 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

17. 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 prior and during the hearing, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

18. On 24 January 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

19. On 31 January 2022, the applicant responded to the NOICC and advised that:

    I want to state that I have not breached the condition as I have valid COE.

20. At the time of responding to the NOICC the applicant provided a CoE for a Graduate Diploma of Management (Learning ), created on 28 January 2022.

    Pre-hearing evidence

21. Prior to the hearing the applicant provided the following documents:

    ·Certificate III in Commercial Cookery issued 6 July 2017

    ·Statement of Results for Certificate III in Commercial Cookery issued 6 July 2017

    ·Statement of Results for Certificate IV in Commercial Cookery issued 8 January 2018

    ·Statement of Results for Diploma of Hospitality Management issued 30 October 2018

    ·Letter dated 17 December 2018 from Pax Institute of Education stating that the applicant successfully completed a Certificate IV in Commercial Cookery qualification from 13 June  2017 to 11 December 2017

    ·Letter dated 17 December 2018 from Pax Institute of Education stating that the applicant successfully completed a Diploma of Hospitality Management qualification from 12 April 2018 to 3 October 2018

    ·To Whom It May Concern statement dated 16 May 2019 from Pax Institute of Education stating that the applicant is enrolled in Advanced Diploma of Hospitality Management from 19 November 2018 to 19 May 2019.  The document lists the Units studied and the grades achieved.

22. The applicant also provided a written statement dated 30 September 2022 in which he said:

    Re: to explain the circumstances surrounding my refusal

    I came to Australia on a student visa in 2015 and had big dreams of studying here. I was ready to work hard for my dreams and had prepared myself for hard work. I was
    supposed to study Advanced Diploma of Hospitality Management. I completed that diligently by 21 May 2019.

    I was later supposed to start working on Bachelor of Business from Group Colleges Australia which was supposed to start on 2 September 2019. Unfortunately, my mental health started taking a turn for the worse during that time. I was struggling to make ends meet due to lack of enough work here and my parents could not help me either. So, I decided to save up enough money to pay for the fees. Unfortunately, the college did not pay attention to my pleas and they cancelled my COE on 28 August 2019.

    I was even more stressed as I thought my dreams to study were finally over. I did not want to completely let go of my dreams. I talked to my parents about it and they encouraged me to try and stand up on my feet 30/09/2022 too. I was finally getting better in the beginning of 2020, when the pandemic hit Australia.

    Australia was affected by the pandemic and everything was on lockdown here. however, the situation worsened in 2020 due to the outbreak of COVID-19 pandemic. There was a strict lockdown and we were all scared due to this new and deadly virus. I was restricted to indoors and my mental health worsened even more. I was having more panic attacks and more depressive episodes than usual due to no social interaction and the uncertainty due to the pandemic. I was worried about their mental and physical health. I also suffered from financial instability as most of the businesses at the time were shut down and many jobs were lost and hours cut down. This whole led to my own mental health worsening with time as I was unable to even save a penny to restart the course. It was impossible for me to study at that time as I was in no state to focus on anything and was in survival mode. Thus I did not study any course during that time and there was a gap.

    Moreover, my parents lost money too during COVID-19 and I could not go and meet them. They were as scared and paranoid as I was as we were seeing death in the neighbourhood. I was very worried about my parents as they are old and have weaker immune systems than I do. Moreover, people in India were not taking care of masking up and that was something that was unfortunate and made the pandemic worse.

    With the time passing and around the end of 2020, my condition started getting better. I was able to get out of the house and start working properly again. I tried to busy myself in things such as meeting my friends again. They decided to hold an intervention for me and encouraged me to study again. They remembered how passionate I was about the course I had 30/09/2022 taken and how I wanted to open my own restaurant in my home country.

    They also suggested me colleges to apply to and how to save properly. I talked to my parents about my needs and my passion. They were extremely happy to hear that I wanted to resume study and were willing to support me. I worked throughout the year 2021 and was able to save enough by the end to afford my course fee for year 2022. I decided to apply for the course. I finally got admission in Hilton academy on 28 January 2022. I was very enthusiastic about resuming my studies. But in an unfortunate turn of events, I received the Notice of Intent to consider cancellation (NOICC) from the Department on 4 February 2022. The Department subsequently cancelled my visa. It was disheartening for me and I decided to file for a review as I wanted to continue studying.

    Thus I can safely assure you that I am a genuine student. The sole purpose of applying for a student visa was to complete my studies. The circumstances in 2020 were out of my control and I was unable to resume my studies.

    Evidence at hearing

23. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:

    a.He had finished the following courses:

    i.Certificate IV in EAL in 2016

    ii.Certificate III in Commercial Cookery in 2017

    iii.Certificate IV in Commercial Cookery in 2017

    iv.Diploma of Hospitality Management in 2018

    v.Advanced Diploma of Hospitality Management x 2 on 19 May 2019 and 23 June 2019

    b.He was enrolled in a Bachelor of Information Technology, but this enrolment was cancelled on 4 August 2016 due to Student Notifies Cessation of Studies.

    c.He was enrolled in a Diploma of Hospitality Management, but this enrolment was cancelled on 9 March 2018 due to non-commencement of studies.

    d.He was enrolled in a Bachelor of Business, but this enrolment was cancelled on 28 August 2019 due to non-payment of fees.

    e.He was enrolled in a Graduate Diploma of Management (Learning), but this enrolment was cancelled.

24. The Tribunal explained to the applicant that this information was relevant because it indicates that from 28 August 2019, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.

25. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. The applicant told the Tribunal that he did not dispute the PRISMS records.

26. Noting that the applicant’s response to the NOICC indicated that he disputed the ground of cancellation, the Tribunal asked him whether there was a period during which he was not enrolled in a registered course. In response he said he was not enrolled from 28 August 2019 until February 2022 when he obtained the CoE for  a Graduate Diploma of Management (Learning). 

27. When asked the reasons for not maintaining enrolment during the period from 28 August 2019, the applicant told the Tribunal that it was because of financial problems in India. He said his father, who is a farmer, lost business in 2019 due to “a flood or something else” and was unable to provide financial assistance for his study in Australia. The Tribunal put to the applicant that it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia.  

28. The Tribunal asked the applicant about his mental health problem in September 2019 as  referred to in his written statement dated 30 September 2022. He said when his father could not send him money to pay for his study in Australia, he became upset and stressed because he wanted to continue his study.

29. He said he asked his education provider for a deferment however they refused. In response to the Tribunal asking whether he contacted the Department about his immigration status, he said he did not contact the Department. He also said he did not attend a doctor, but he sought assistance from his friends.

30. The Tribunal referred the applicant to his written submission in which he said that around the end of 2020 his condition improved and that he decided to work during 2021 to pay for his study in Australia in 2022. The Tribunal put to the applicant that he would have known that from 28 August 2019 he was no longer enrolled in a course and was not abiding by the conditions of his visa. This non-enrolment period extended over a period of more than two years.  He said he was not in a good condition and was attending temple for assistance through prayer. He said he was also getting help from his friends and said he was “not thinking about” his visa conditions.

31. The applicant told the Tribunal that during 2021 he worked one or two days a week. He said his father’s business is now good and he can now provide financial assistance to the applicant.

32. The applicant told the Tribunal that he came to Australia to study.  The Tribunal asked the applicant whether there was a compelling need for him to remain in Australia. In response he said there was no compelling need. To ensure the applicant understood the question, the Tribunal repeated the question. He again said there was no compelling need for him to remain in Australia and that the only reason for him to remain was just to study.

33. When asked about any hardship that might be caused by cancellation of his visa, the applicant told the Tribunal he will suffer hardship because he wants to continue his study in Australia. He said he likes the lifestyle here and likes living here. In response to the Tribunal asking whether he intends returning to India, he said he will return and work in his father’s business, which is a good business. The applicant then said he was not sure whether he would work with his father.

34. In response to the Tribunal asking what further study he wishes to undertake in Australia, the applicant said he wants to study a Bachelor course. When asked about the field of study, he said “like Business”. The Tribunal noted that when responding to the NOICC he provided a CoE for a Graduate Diploma of Management (Learning) and asked him about this study. He said his agent applied for the CoE.

35. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

36. The purpose of his visa was to enable the applicant to study. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 2 years 5 months. The Tribunal accepts that following receipt of the NOICC, the applicant obtained a CoE for a Graduate Diploma of Management (Learning). This CoE was created on 28 January 2022 and has been cancelled.

37. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted for an extended period and was not fulfilling the purpose of his travel to and stay in Australia. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response he said there was none.

38. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

39. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study since 28 August 2019. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

40. The applicant’s non-compliance for an extended period of 2 years 5 months prior to the NOICC weighs in favour of visa cancellation.

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

1. The Tribunal accepts that the cancellation of the applicant’s visa may cause hardship because he will not be able to study and live in Australia. The Tribunal gives this some weight against cancellation.

   Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

2. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant told the Tribunal that he failed to maintain enrolment because of his father’s financial problems which meant that his father could not pay for the applicant’s study in Australia.

3. No evidence to substantiate the claimed financial hardship was provided. However, as noted it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia. If a visa holder is experiencing financial difficulties it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.

4. The applicant’s written statement referred to him having a mental health issue in September 2019, which improved towards the end of 2020.  He did not seek professional assistance for his problem and no evidence was provided to substantiate the claimed mental health issue. The Tribunal is of the view if he was so mentally affected he could not study, he would have sought help as he has claimed he was in Australia to study.

5. The applicant told the Tribunal that he worked in 2021 to save money to pay for his study in 2022. The Tribunal noted that a CoE was not obtained until the NOICC was issued in January 2022.  The applicant told the Tribunal that during the period he was not enrolled in a registered course, he was not really thinking about his visa conditions.  This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder.

6. Given the absence of evidence to substantiate the applicant’s claimed reasons for the breach of condition 8202, the Tribunal does not accept that the claimed circumstances were beyond the applicant’s control.

7. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

   Past and present behaviour of the visa holder towards the Department

8. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

   Whether there would be consequential cancellations under s 140

9. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

   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

10. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

11. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

12. The applicant told the Tribunal that because of the COVID-19 pandemic, he was not able to return to India after his enrolment was cancelled. The Tribunal notes that the applicant’s enrolment was cancelled on 28 August 2019, six months before the onset of the pandemic. Further, he remained in Australia and continued to work during 2021 and no evidence was provided to indicate that he attempted to return to India when he was no longer studying. The Tribunal gives this no weight in its considerations.

13. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

14. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as  he is not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

15. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.