Chhabra (Migration)

[2020] AATA 1843

Chhabra (Migration) [2020] AATA 1843 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Divanshu Chhabra

CASE NUMBER:  1931543

HOME AFFAIRS REFERENCE(S):          BCC2019/3262434

MEMBER:Peter Booth

DATE:4 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2020 at 9:02am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course ceased – applicant changed to Vocational courses – applicant distracted from studies by a relationship – decision under review affirmed      

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 October 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 did not comply with condition 8202(2)(b) in that he had not maintained enrolment in a registered course that, once completed, would provide a qualification that was the same level as, or a higher level than, the registered course in relation to which his visa was granted. 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 28 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Mrs Kalra. 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 must maintain enrolment in a registered course that, once completed, will provide a qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b). In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course at the same level or higher than the course for which he was granted his student visa.

7. The delegate’s decision dated 29 October 2019 records the reasons for cancellation of the applicant’s student visa. The applicant was granted a TU-500 higher education sector student visa on 16 January 2018, on the basis that he was enrolled in a higher education course, being a master of accounting and international finance. Once completed, this course would provide a level 9 (master degree) qualification from the Australian Qualifications Framework (AQF). The course was cancelled on 2 February 2018. The applicant subsequently enrolled in a master of professional accounting on 26 July 2018 and commenced this course on 27 August 2018. Enrolment in this course was cancelled on 2 May 2019. On 1 March 2019, the applicant enrolled in a certificate III in security operations. This enrolment is at an AQF level 2, and he has not been enrolled in a course at AQF level 9 or level 10 since 2 May 2019. His subsequent enrolment in a certificate III in commercial cookery (AQF level 3) was cancelled on 3 October 2019, with a last study day of 18 August 2019. A further enrolment in a certificate IV in commercial cookery (AQF level 4) was also cancelled on 3 October 2019 due to non-commencement of studies. These matters were put to the applicant. The applicant said that he abandoned the master of accounting and international finance “after four months, after first semester”. He appeared to assert that he was still enrolled in the course at the time he enrolled in the master of accounting course which he agreed commenced on 27 August 2018 and that he enrolled in it on 26 July 2018. However, he produced no documents to corroborate the assertion that he was still enrolled in the master of accounting and international finance. However, he agreed that he had not completed either the master of professional accounting or the master of accounting and international finance courses. Further, he agreed that he had enrolled in a series of vocational certificate courses, the first of which was enrolled in on 1 March 2019. He further agreed that he has not been enrolled in an AQF level 9 course since at least 1 March 2019. Accordingly, on the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at the same level as or higher than the registered course in relation to which his visa was granted since at least 1 March 2019. Accordingly, the applicant has not complied with condition 8202(2)(b) since at least 1 March 2019.

   Consideration of the discretion to cancel the visa

8. 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’.

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

   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

10. The applicant arrived in Australia on 29 January 2018 as the holder of a Subclass 500 higher education student visa, intending to study a master of accounting and international finance. The applicant did not give any evidence as to whether he has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

11. The applicant confirmed that he was not enrolled in a level 9 registered course of study from at least 1 March 2019. Furthermore, he enrolled in an AQF level 2 course on 1 March 2019.

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

12. 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

13. The applicant was originally enrolled in a master of accounting and international finance but did not complete it. He then enrolled in a master of professional accounting course and a master of business administration course but did not complete them. He enrolled in a vocational course in security operations, then a vocational certificate in commercial cookery. The latter enrolment was cancelled. On 15 March 2019, he enrolled in another vocational certificate in commercial cookery. This was also cancelled. The Tribunal invited the applicant to explain his failure to maintain an appropriate level of AQF study. He said:

    I was trying a lot to keep studying, but failing constantly, then I looked at the financial, I thought I should take a small course like cookery, and after completing cookery will again try masters. But after failing over completely distracted and could not understand. I met my wife, a relationship started, then I got completely distracted from study, I focused on her, stayed in a relationship with her, started helping her and her studies financially. I propose to her last year, we got married on 29 September 2019. I have lodged a spouse visa application. I should be given a little more time so section 48 does not bar me. I want to live with her here. If I can get some time, it would be helpful for me in that situation. She met with an accident in November, she was hit by a car while walking, she has been depressed and my mother had visited her, and now her parents are coming.

14. The applicant’s wife, Mrs Kalra, gave evidence. She said “he wanted to study, but could not do that because he couldn’t concentrate. He left it and then we got into a relationship, he triumphed that he could help me, and after the relationship progressed we decided to get married, three months ago I had an accident and had a lot of need, I feel like he should be granted a visa so that he could help me”.

15. The applicant asserts that he was, apparently, having difficulty with study and changed courses. He gave no evidence as to whether he was aware of the condition of the visa requiring him to maintain a level of study. The only reason advanced by the applicant appeared to be that he had become distracted from his study after meeting the woman who is now his wife. The Tribunal does not consider that the circumstances in which the cancellation arose were beyond the control of the applicant. Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

16. 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

17. 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

18. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by 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

19. 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

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

    Any other relevant matters

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

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

    DECISION

23. 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 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.