Chaudhary (Migration)

[2019] AATA 6579

Chaudhary (Migration) [2019] AATA 6579 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahil Chaudhary

CASE NUMBER:  1924161

HOME AFFAIRS REFERENCE(S):          BCC2019/2544890

MEMBER:Peter Booth

DATE:27 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 27 November 2019 at 12:22pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – family bereavement – health issues – limited academic progress – decision under review affirmed

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 27 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).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. 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. The applicant appeared before the Tribunal on 25 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sorod, an acquaintance of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

5. 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?

6. 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).

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

8. The decision of the delegate records that the applicant was not enrolled in a registered course of study since 6 August 2018. The delegate’s decision is dated 27 August 2019. The applicant affirmed the correctness of this finding at the hearing on 25 November 2019. 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

9. 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’.

10. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters as follows.

    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

11. The applicant gave evidence that he arrived in Australia on 7 September 2016 as the holder of a Subclass 573 student visa for the purposes of studying a bachelor of information technology course. The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

12. The applicant confirmed that he had not been enrolled in a registered course of study since 6 August 2018.

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

13. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    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

14. The applicant said that he commenced the bachelor’s course in information technology and attended classes for some time until approximately August 2017. He said that the course commenced on 2 February 2017. The Tribunal enquired why he had failed to complete the course, to which he said, “there were a lot of changes of circumstances in my life and I could not concentrate on my studies”. The Tribunal invited him to elaborate upon this response to which he said:

    I started the course and went to college, after that the results were poor. Then I went into depression and could not concentrate on my studies. After that my grandfather passed away. After that I had a relationship with a girl which broke down. After that I lost all my concentration my studies, started drinking alcohol and became alcoholic, I started borrowing money from friends, all this caused gaps in studies and I left the studies.

15. The applicant was asked whether he could produce any medical evidence to support the assertion of depression to which he said, “no, my friends tried to take me to a social worker and rehab centre but I did not go”. The applicant had provided to the Tribunal a death certificate in respect of his grandfather which confirmed that his grandfather had died on 2 July 2018. The applicant also produced an email dated 24 August 2019 from his course provider confirming that he had been granted a deferral of his bachelor of information technology course for the second trimester of 2018. The Tribunal enquired whether he enrolled in the third trimester to which he said that he had not. This third trimester was apparently scheduled to commence in “November”. The Tribunal enquired why the applicant had not returned to study in the third trimester of 2018 to which he said, “because of my grandfather’s death I could not concentrate in study and other things in my life”. In answer to a question from the Tribunal the applicant said that he enrolled in a diploma of business at Lennox College on 20 November 2019. In answer to a question from the Tribunal he said that he had not been enrolled in any course of study in the intervening period. The applicant said, in conclusion, “I need another chance to continue my studies. Now I want to study, at the time I could not concentrate in my studies, and I want to restart my studies and pay full attention to my studies, I want one more chance.”

16. The Tribunal then heard evidence from the applicant’s acquaintance, Mr Sorod. The witness said that the applicant “could not continue his studies, he borrowed money from us, he did not work and did not study, he was in a lot of depression. Now he has understood the situation, now he understands him a study. He is regretting a lot. He would remain in the house, now he goes out and meet others.”

17. The applicant said that there were several reasons why he abandoned his course of study. The first, apparently, was that his results were “poor”. He did not elaborate on this proposition nor did he provide any transcript of his academic records. The Tribunal places little weight on this assertion. Secondly he said that his grandfather became ill and then passed away. He produced a death certificate confirming the death of his grandfather on 2 July 2018. The Tribunal accepts the veracity of the certificate. However the applicant gave evidence that he abandoned his studies in approximately August 2017. He gave no evidence as to when his grandfather became ill or indeed the causes of his grandfather’s death. Whilst the Tribunal accepts that the death of a relative may have some consequences insofar as study may be concerned there was no evidence other than the applicant’s assertion of a relationship between the death of his grandfather in July 2018 and the decision of the applicant to abandon his studies in August 2017. Thirdly the applicant gave passing reference to the breakdown in a relationship with “a girl”. The timing of the breakdown, the nature and extent of the relationship, circumstances of the breakdown, and the identity of the woman were not described by the applicant at all. The Tribunal gives this assertion little weight. Lastly the applicant said that he turned to alcohol and became “alcoholic”. The applicant produced no evidence to support this assertion and admitted that he had not sought any treatment in respect of it. The Tribunal gives this assertion little weight. Considering the evidence as a whole the Tribunal is not convinced by these explanations and does not accept that the applicant’s failure to maintain enrolment was beyond his control.

    Past and present behaviour of the visa holder towards the Department

18. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

19. The Tribunal was provided with no evidence on this point and gives it little weight.

    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

20. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

21. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

22. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

23. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.