Dhanian (Migration)

[2022] AATA 5177

Dhanian (Migration) [2022] AATA 5177 (13 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aman Dhanian

CASE NUMBER:  1927258

HOME AFFAIRS REFERENCE(S):          PNJ Unknown

MEMBER:Gabrielle Cullen

DATE:13 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 13 July 2022 at 2:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Tribunal’s jurisdiction – failure to correctly notify of review rights – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate on 12 June 2018 cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The Tribunal received an application for review of the delegate’s decision from the applicant on 22 June 2018.

4. On 16 July 2018, the Tribunal, differently constituted, found it did not have jurisdiction as the applicant had applied for review outside the relevant time period. The Tribunal differently constituted, noted the applicant was notified of the primary decision on 12 June 2018 and the last day for lodging the application was 21 June 2018. The evidence indicates the Tribunal did not receive the application for review until 22 June 2018.

5. The applicant sought  review of the decision to the Federal Circuit Court and Federal Court, however both Courts dismissed the review.

6. However, the Tribunal has now formed the view that for the reasons set out in Parata [2021] FCAFC 46 the consequence of the failure to correctly notify the applicant of his review rights from the cancellation of his visa is that the time within which the applicant must lodge his application to the Tribunal to review the primary decision and pay the prescribed fee had not commenced. As such, the Tribunal finds that it has jurisdiction to consider the application for review.

7. The applicant appeared before the Tribunal via video on 12 July 2022 to give evidence and present arguments.

8. 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

9. 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?

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 registered course, or in limited cases, a full time course of study or training: 8202(2);

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

12. With his application for review to the Tribunal, the applicant provided a copy of the decision record of the delegate under review dated 12 June 2018 and the Notice of the Intention to Consider Cancellation (NOICC) dated 12 June 2018 . These documents note the applicant was not enrolled from 1 September 2017 until he submitted a new COE to study a Diploma of Hospitality Management commencing 11 June 2018. The NOICC notes that the applicant was not enrolled on 8 June 2018 when Border Officials attended his premises, and he presented the new COE after this date. The PRISMS record raised with the applicant at the hearing via s.359AA also indicates the applicant was not enrolled from 1 September 2017 to 11 June 2018 while the holder of a student visa.

13. The decision record also set out that the applicant was notified of the intention to consider cancellation (NOICC) of his visa on 12 June 2018. The Tribunal is satisfied that the NOICC was validly issued.

14. The applicant provided submissions to the Department on 12 June 2018. In the response, among other things, the applicant indicated that he understood he had breached condition 8202 of his visa.

15. The delegate considered the submissions of the applicant and proceeded to cancel the visa on 12 June 2018.

16. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study between 1 September 2017 to 11 June 2018. The applicant also did not dispute that he had not complied with condition 8202(2) of his visa.

17. Therefore, on the evidence before it, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full time course of study or training from 1 September 2017 to 11 June 2018. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

18. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

19. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

20. 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’.

    Background

21. The applicant is a 27 year-old citizen of India. He first arrived in Australia as the holder of a subclass 573 visa on 26 October 2015 which was valid, at that time to 15 March 2020 for the purpose to study an English course and then a Bachelor of Engineering (Mechanical) Honours to conclude on 31 December 2019. He did not commence the Bachelor course and instead studied and completed a Certificate III in Commercial Cookery from 14 March 2016 to 10 March 2017, followed by a Certificate IV in Commercial Cookery from 13 March 2017 to 1 September 2017 which at hearing he advised he did not successfully complete. He enrolled but did not successfully complete the Diploma of Hospitality Management from 11 June 2018 to 4 Janaury 2019. A no study condition was place on his bridging visa granted on 12 June 2018.[1]

    [1] Course study history and visa condition raised with him via s.359AA at hearing.

22. The applicant  provided oral submissions to the Department in relation to the matter which are outlined in the NOICC submitted with the Application for Review which where relevant are outlined below.  He indicated that the visa should not be cancelled as he has had many outside pressures that have caused him not to be able to concentrate on his studies, as his family in India have many personal issues and as he has lost 2 close friends in the past few months.

23. The applicant also provided evidence at the Tribunal hearing as to why the visa should not be cancelled.  He again referred to the death of 2 friends, one a friend in India who died in a  car accident and another friend in Australia who died jumping from a cliff in Albany. He said this had a bad effect on his mind and he should have attended College but instead stayed at home. He confirmed that he did not study and attend courses in the relevant period because of the mental effect the death of his friends had on him. He said there were no other reasons why he did not study in the relevant period.

    The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

24. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. The applicant indicated to the Department and confirmed at hearing that his purpose for coming to Australia was to study a Bachelor of Mechanical Engineering and obtain a  qualification.

25. The evidence indicates the applicant completed the English course but did not commence the  Bachelor of Mechanical Engineering and instead studied and completed a Certificate III in Commercial Cookery from 14 March 2016 to 10 March 2017, followed by a Certificate IV in Commercial Cookery from 13 March 2017 to 1 September 2017 which at hearing he advised he did not successfully complete. He enrolled in but did not start the Diploma of Hospitality Management from 11 June 2018 to 4 Janaury 2019. His current bridging visa does not permit him to undertake study. He said if he is given a visa he will complete the Certificate IV in Cookery, then the Diploma of Hospitality Management  course and then finish the Bachelor of Mechanical Engineering.

26. He said since the 10^th grade he had always wanted to come to Australia so chose to come and study the Bachelor of Mechanical Engineering in Australia. He said it was a big mistake that he did not commence the Bachelor course.  He said he changed to the Certificate III in Cooking as he was working in the area and wanted to be promoted to another area in the restaurant. He said he thought he would return to the Bachelor course.

27. While he did not commence the Bachelor course, he did then enrol and complete the Certificate III in Cookery. His evidence is that the purpose of his travel and stay in Australia is to study. He has given no other reason as to why he travelled to and stayed in Australia . Therefore, the Tribunal accepts that his intention to travel and  stay in Australia was for the purposes  of study.

28. As to why there is a compelling need for him to remain in Australia, he said he wished to study the Bachelor course in Australia as to be accepted  in the same course in India a person has to be the “top of the top”. He said he is bright but not bright enough to be accepted into a Bachelor of Mechanical Engineering in India. While it is accepted that the applicant would prefer to study in Australia, the Tribunal is of the view as raised with him that he would have various other options available for future study in India. He said he can study in India.

29. It is accepted that the applicant would prefer to obtain his qualifications in Australia, however, is of the view there are other study options available to him in India.

30. He said he came to Australia when he was 22 years old and is now 27 and there will be shame on his family if he returns without good qualifications. He said his mother died at 12 and his father has taken good care of him and he is concerned at the effect his return without good qualifications would have on his father. While the Tribunal accepts his father would feel shame it has difficulty accepting that this reason amounts to a compelling need to remain in need

31. The Tribunal has considered the applicant’s evidence however, on the material before it, the Tribunal is not satisfied that the applicant has a compelling need to travel and remain in Australia.

32. The Tribunal gives this issue low weight in favour of the applicant.

    The extent of compliance with visa conditions

33. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 1 September 2017 to 11 June 2018, and the Department cancelled his visa on 12  June 2018. The Tribunal considers this period of 9 months to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

34. The applicant said he stopped studying because of the mental stress the affect the death of his two friends had on him. He said he just stayed at home and did not go to College or study. He said he did not seek medical help for the mental stress and issues. As raised with the applicant, the Tribunal is of the view if the applicant came to Australia to study and was so mentally affected that he could not study it may expect he would have sought medical or other help for the mental stress. The evidence is he did not.

35. The applicant also indicated he did not know at that time that condition 8202 was attached to his visa and that he was required to be enrolled in a course of study. He said when the Border Officials did a random check he was then advised and at that time realised he had made a big mistake. The Tribunal has difficulty accepting that the applicant was unaware of the conditions of his visa and that he was required to be enrolled in a course of study while the holder of a student visa when the information is sent to them by the Department and the applicant speaks, reads and writes English.

36. To the Department he also referred to personal issues with his family, but no further evidence was provided at the hearing and he did not refer to this as an issue when asked if there was any other reason why he was not enrolled.

37. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on her visa.

38. Considering the lengthy period of time the applicant was not enrolled in a registered course of study, the Tribunal gives this discretionary factor little weight in favour of the applicant in exercising the discretion not to cancel the visa.

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

39. At hearing the applicant referred to the shame that will have to be endured by his father if he returns without a qualification. To the delegate he said his family in India would be very disappointed and upset if his visa was cancelled and that he also sends money, and he would no longer be able to do that. When asked why he could not study in India as there are many courses available to him there, he said he could but he wants to stay and study here so he can obtain a degree from Australia so he can obtain a job in Australia and return to India for his family.

40. As set out above, the Tribunal is satisfied that the applicant still has study options available to him in his home country, or elsewhere, to improve his future employment prospects and to assist his family financially.

41. While it accepts there is a degree of hardship to the applicant  and his family as to his lack of obtaining a bachelor course, finishing courses that may be caused due to the cancellation of his visa, on the evidence before it the Tribunal gives such disappointment and shame for him and his family low weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

42. In his evidence the applicant has advanced several matters that impacted on his ability to study. He has said he did not have the available funds to pay for a COE, as well as he was suffering mental stress due to the death of his two friends and as a result did not attend the school rather staying at home. However, as raised with him, the Tribunal has difficulty accepting this mental stress affected his ability to study when there is no evidence he ever sought medical help. 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.

43. Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that the applicant was impacted by two events of personal tragedy but not to the extent claimed which led him to be unable to study for the 9-month period from 1 September 2017 to 11 June 2018. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa. Therefore, the Tribunal only attributes them low weight in favour of the applicant.

    Past and present behaviour of the visa holder toward the Department

44. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past, and he responded to the NOICC. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be any consequential cancellations under s.140

45. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no 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

46. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

47. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and deportation. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

48. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act that he may not be granted a further visa for three years from the date of cancellation. It is noted that this date runs from the date of the delegate’s original decision and the applicant has already served the three-year period. However, it is accepted that cancellation may also restrict the applicant’s future ability to make a successful visa application. The cancellation of the visa has the consequence that the applicant would have difficulties in obtaining any further visas in Australia, however those are also intended and legitimate consequences of cancellation.

49. The Tribunal gives this consideration neutral weight.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

50. When asked by the Tribunal whether he had any fear of returning to India he said there were civil or political issues that he would face returning to India and that he did not fear return to India. He again referred to the shame his family would face if he returned without good qualifications. The applicant is not married and has no dependents

51. The Tribunal therefore has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. While it accepts the applicant’s family may feel shame there is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

1. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

2. The Tribunal gives this consideration neutral weight.

   Any other relevant matter

3. The applicant referred to the length of time he had been waiting and that he has been unable to study since June 2018 due to the no-study condition on his current visa. It places neutral weight on this aspect.

4. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, such as the death of his 2 friends it is not satisfied that the applicant demonstrated that his emotional and medical response to these events left him unable to study and that his failure to maintain enrolment was outside his control. The Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, it notes that the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

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

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

   Gabrielle Cullen
   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.