Chahal (Migration)

[2020] AATA 2565

Chahal (Migration) [2020] AATA 2565 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Randeep Singh Chahal

CASE NUMBER:  1909683

HOME AFFAIRS REFERENCE(S):          BCC2019/278784

MEMBER:David McCulloch

DATE:27 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2020 at 9:36am

CATCHWORDS
MIGRATION – cancellation – Subclass 500 (Student) visa – not enrolled in registered course – difficulties with Masters level accounting course – withdrawal from course – enrolment in another Masters level course and withdrawal – difficulties with brother – no clear study plan – 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. The applicant is a national of India, born on 22 October 1992. The visa that has been cancelled was granted on 11 July 2017 for a stay period until 9 September 2019. That visa was subject to condition 8202.

2. On 20 March 2019, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from

   
   

   3 May 2018. The applicant did not provide a response to the NOICC. On 11 April 2019, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

3. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

4. The Tribunal exercised its discretion to hold the hearing by telephone, which was held on

   
   

   21 May 2020. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant was represented by his registered migration agent, who did not attend the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. 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

6. 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. This is an application for review of a decision dated 13 August 2019 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 (the Act).

   Did the applicant comply with condition 8202?

7. 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)

   ·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).

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

9. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 3 May 2018. In the hearing, the applicant acknowledged that he had ceased to be enrolled in a registered course.

10. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

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 to exercise its discretion to cancel the visa.

13. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled 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.

14. The Tribunal explored the applicant’s study history in Australia and claimed extenuating reasons beyond his control for the failure to be enrolled in a registered course.

15. The applicant arrived in Sydney, Australia, in July 2017 and commenced a Master of Professional Accounting. The applicant indicated in the hearing that he found the course difficult and struggled to adapt to learning in Australia, particularly in an online environment. The applicant indicated that at the end of the semester, he failed all three units. The applicant indicated that this caused him to withdraw from the course. The Provider Registration and International Student Management System (PRISMS) indicates that this course was cancelled on 29 November 2017 because of notification of cessation of studies.

16. In the hearing, the applicant indicated that he decided to relocate to Brisbane where his brother was located. The applicant enrolled in another Master of Professional Accounting degree with another education provider. PRISMS indicates that this was due to commence on 12 March 2018. This enrolment was cancelled on 3 May 2018 on the basis of the applicant not commencing this course. This is the cause of the visa being cancelled based on not being enrolled in a registered course.

17. There is no evidence of the applicant being enrolled in any subsequent course either before the visa was cancelled or thereafter. The Tribunal notes that there is no restriction on the applicant’s bridging visa in terms of ability to study.

18. The Tribunal explored with the applicant in the hearing why he did not commence the Master of Professional Accounting in March 2018. The applicant indicated that he enrolled in this course rather than an easier course because his migration agent had told him that his visa required him to be enrolled in a course at Masters level. However, despite the difficulties that the applicant had had in the previous course, he thought that with some additional help he may be able to make better progress. The applicant indicated that he did not commence this course because of the confluence of issues causing mental distress, including arguments with his brother, broader family problems and the applicant not being able to find a job. The applicant indicated that he did not receive any medical attention or assistance for his mental health issues.

19. The Tribunal asked the applicant specifically as to whether he was claiming that there were extenuating circumstances beyond his control for the failure to be enrolled. The applicant indicated that he did not know what to say. The applicant then reiterated that he had not been in a good state of mind and everything was too much.

20. The Tribunal noted to the applicant that he had ceased to be enrolled in a registered course while he held the visa for a period of 11 months, which was a not an insignificant breach. Additionally, the applicant had not studied from November 2017 until the visa was cancelled in April 2019.

21. The Tribunal put to the applicant that if there were mental health issues or difficult family circumstances causing the applicant to not be able to progress with his studies, then the appropriate course would have been to have sought a deferral on medical or compassionate grounds from the education provider. This would have enabled the applicant to meet the key visa requirement to be enrolled yet have time to deal with his personal or medical issues.

22. In response, the applicant indicated that he did not know about such an option. The Tribunal indicated to the applicant that it would be inclined to consider that an individual cognisant of the importance of key visa obligations would have investigated such options and possibilities. In response, the applicant said that there was too much mental pressure and the option did not come to his mind.

23. Considering all of the claims and evidence, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that explain or justify the significant period that the applicant has not been enrolled in a registered course. The applicant should have explored options of a deferral with the education provider or explored other education options if the particular Masters course was not suitable. The Tribunal is not satisfied that family disputes and mental pressure which was not medically treated justifies the applicant not being enrolled in a registered course for 11 months and not studying for longer. This is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

24. The Tribunal asked the applicant what his intentions were in Australia if the visa cancellation was set aside, bearing in mind that the term visa in question had ceased. The Tribunal asked the applicant what he would do if he had freedom to pursue other visa options and opportunities in Australia. As is apparent from the applicant’s answers, he clearly has not given this matter significant attention or thought. The applicant referred vaguely to studying an easier course. When the Tribunal asked the applicant if there was any specific course that he wished to study, the applicant indicated that some time ago he investigated a course in arts but had not undertaken study investigations recently.

25. The Tribunal put to the applicant that it would have expected that if he was seeking from the Tribunal that his visa be reinstated the applicant would have a much clearer plan to indicate to the Tribunal in terms of what he intended to do. The applicant indicated that he had not readily perceived the need in this respect.

26. The Tribunal asked the applicant whether he knew that there would likely be a reasonable period in which he would be able to remain in Australia whilst the Tribunal review process proceeded. The applicant indicated that he did. The Tribunal noted to the applicant that it has been two years since he ceased to commence the second Master of Professional Accounting in a situation where the applicant would have been free to study and could have completed a course by now. The Tribunal notes that there is no restriction on the applicant studying on his bridging visa. The applicant indicated that he undertook no study because of the mental pressure that he was suffering.

27. The Tribunal explored with the applicant the hardship he would face if the visa remains cancelled and compelling reasons he has to remain in Australia. The applicant indicated that he had come to Australia to make a good future and would like to progress with this goal. The Tribunal noted to the applicant that the extent of hardship would seem to be lessened by the applicant not having any clear current plan as to what he would do in Australia if the visa is reinstated. The applicant indicated that if he had realised this, he would have investigated options.

28. The Tribunal accepts some hardship to the applicant if he has to return to India given that he may wish to remain in Australia. However, this level of hardship is limited due to the applicant not having any current definitive plan as to what he would study or otherwise do in Australia or what options he would pursue. This is adverse to the applicant.

29. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of his inability to apply for many categories of visas onshore for a period of three years. The Tribunal accepts that if the visa remains cancelled, the applicant could become an unlawful non-citizen, but the Tribunal considers that the applicant would continue to be eligible for a bridging visa.

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

31. The applicant indicated in the hearing that he would return to India if the visa remained cancelled and would not remain in Australia unlawfully. The Tribunal explored with the applicant whether he feared persecution or significant harm India. The applicant indicated that he fears possible harm because his brother in Australia is gay and has now come out to his family in India. This has caused extended family conflict towards the applicant’s brother and his immediate family, including the applicant.

32. The Tribunal noted to the applicant that the process for considering protection in Australia on such a basis would be through an application for a protection visa. The applicant indicated that he had had some discussion with his lawyer about this option. The applicant indicated that he would explore such an option if the student visa remained cancelled.

33. Whilst the Tribunal indicated to the applicant that it was plausible his brother could face some difficulty in India based on being gay, it had scepticism that this would extend to the applicant as his brother. In response, the applicant indicated that as a male with a gay brother, there could be problems.

34. As indicated to the applicant in the hearing, there is the option of seeking protection in Australia through an application for a protection visa. This would make issues relating to possible harm suffered by the applicant in India not an overly relevant discretionary factor in considering this matter.

35. In summary, 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 a period of approximately 11 months while he held the visa. This is significantly adverse to the applicant. Also adverse to the applicant is his failure to have engaged in any study in the period after enrolment was cancelled, including after the visa was cancelled. Adverse to the applicant is the fact that the applicant has no clear plan as to what he would wish to study or otherwise do in Australia if the visa was reinstated.

36. The Tribunal accepts some limited hardship to the applicant if the visa remains cancelled in terms of having to return to India while wishing to remain in Australia. The extent of this hardship is limited because the applicant has no current clear future plans in Australia. The Tribunal accepts other hardship in terms of limitations on applying for future visas onshore in Australia if the visa remains cancelled.

37. The Tribunal is not satisfied that possible harm in India towards the applicant based on his brother being gay is an overly relevant discretionary factor in this matter because the option of applying for a protection visa would facilitate possible sanctuary in Australia.

38. Weighing matters adverse to the applicant against various hardships that the applicant would face if the visa remains cancelled and other matters favourable to the applicant, the Tribunal readily determines that the balance lies in favour of cancelling the visa.

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

    DECISION

40. 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.