Dhaliwal (Migration)

[2022] AATA 2009

Dhaliwal (Migration) [2022] AATA 2009 (26 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmanpreet Singh Dhaliwal

CASE NUMBER:  2201861

HOME AFFAIRS REFERENCE(S):          BCC2020/904899

MEMBER:Joseph Lindsay

DATE:26 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2022 at 11:49am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was not enrolled in a full time registered course – breached condition 8202 –no compelling need to remain in Australia – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant appeared before the Tribunal on 19 April 2022 to give evidence and present arguments. 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

3. 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?

4. 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).

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

6. The applicant has provided to the Tribunal a copy of the delegate’s decision record dated 10 February 2022. The Tribunal has considered the delegate’s decision record.

7. The Tribunal asked the applicant whether all of the information in the decision record was correct. In response, the applicant indicated that all of the information in the decision record was correct.

8. The Tribunal put to the applicant that the information from the decision record indicated that the applicant had not been enrolled in a registered course of study since 28 August 2019, and therefore the applicant had not complied with condition 8202 of his visa. In response, the applicant said “yes member.” The Tribunal put to the applicant that it may find that there were grounds to cancel the applicant’s visa under s116(1)(b) of the Act because it appeared that he had not complied with condition 8202 because he had not remained enrolled in a registered course of study since 28 August 2019. In response, the applicant said “yes.”

9. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 28 August 2019. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s 116(1)(b) of the Act.

   Consideration of the discretion to cancel the visa

10. 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’.

    The circumstances in which the ground for cancellation arose

11. In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered course of study since 28 August 2019. The Tribunal spoke with the applicant about the written submissions the Tribunal received on 13 April 2022. In response, the applicant said that he first got to Australia in 2016, but he has been stressed and he did not know what to do and, also, he hurt his foot. He said he had stayed at home much of the time watching movies. He said that he did not respond to the Department because his email was full.

12. The Tribunal then discussed another aspect of the applicant’s submission that he has obtained a Confirmation of Enrolment (COE), dated 14 February 2022, in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis through Excellent Accounts Pty Ltd. However, the applicant made admissions that he obtained the new COEs after the date of the delegate’s decision of 10 February 2022. He admitted that it was his responsibility to maintain compliance with his visa conditions and expressed his regret at being in breach of his visa conditions and remaining without an enrolment for over two years.

13. In respect of the above, the Tribunal makes the following findings.

14. The Tribunal accepts that the applicant had not been enrolled in a registered course of study since 28 August 2019 until early 2022 when he obtained new COEs in early 2022. The Tribunal accepts that the applicant has been stressed since he came to Australia in 2016 and accepts that he has hurt his foot in the past. The Tribunal accepts that the applicant stayed at home much of the time watching movies. The Tribunal accepts that the applicant did not respond to the Department because his email was full.

15. The Tribunal accepts that the applicant first came to Australia on a student visa in 2016, and that by 2019 he had been in Australia for some three years. The Tribunal accepts that the applicant was, by 2019, reasonably aware that he was required to remain enrolled in order to comply with the conditions of his student visa. The Tribunal accepts the applicant’s admissions that it was his responsibility for not being enrolled in a registered course of study from 28 August 2019 to early 2022, and that the applicant had remained in Australia without being enrolled in a registered course of study for more than two years.

16. The Tribunal accepts that the applicant was reasonably expected as the visa holder to comply with the conditions of his visa.

17. The Tribunal accepts that the applicant did not take reasonable steps to comply with his visa conditions.

18. The Tribunal accepts that the applicant’s circumstances were within his control because by the time he ceased being enrolled he had been in Australia for about three years on a student visa, and that he was reasonably aware that he had to remain enrolled in order to comply with his student visa, yet he made the decision not to remain enrolled and to remain in Australia on a student visa for a lengthy period of time without being enrolled, and in doing so he reasonably knew that was in breach of his visa conditions.

19. In weighing all the circumstances as detailed above, the Tribunal does not accept that the applicant took reasonable steps to maintain compliance with his obligation to remain enrolled in a registered course of study under visa condition 8202. Accordingly, the Tribunal places high weight on this information against the applicant.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

20. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

21. The Tribunal accepts that the applicant appears to have complied with his other visa conditions. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

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

22. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

23. In response, the applicant indicated that he would be disappointed, and his family would be disappointed.

24. The Tribunal accepts that there may be some disappointment caused to the applicant, and his family, if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

25. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

26. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no 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

27. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

28. 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 chooses not to return to India.

29. 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.

30. The Tribunal places some 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

31. The Tribunal asked the applicant if he feared anything in returning to India. In response he indicated that he had no fears if he went back to India. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

32. In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated that there were no other matters he wished to discuss.

    Conclusion

33. In balancing the circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

34. 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 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.