Dubey (Migration)

[2020] AATA 4443

Dubey (Migration) [2020] AATA 4443 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek Dubey

CASE NUMBER:  1802314

HOME AFFAIRS REFERENCE(S):          BCC2017/3894159

MEMBER:Donna Petrovich

DATE:11 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 August 2020 at 4:33pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – applicant failed to re-enrol – limited academic progress – family bereavement – 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 25 January 2018 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 meet the requirements of a visa holder and was not enrolled in a fulltime registered course. The applicant was granted a subclass TU500 visa for the purpose of maintaining enrolment in a full time registered course. The applicant was enrolled in a fulltime course, a Master of Business Administration at Holmes Institute. The applicant had not been enrolled in a full time registered course of study since 21 April 2017 until the date of decision 18 December 2017. 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 8 January 2020 to give evidence and present arguments.

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 full time registered course.

8. The applicant is a 30 year old man from India, who arrived in Australia to study and was granted a Student (Temporary)(Class TU) Student (subclass 500) visa and enrolled in Master of Business Administration at Holmes Institute. The applicant’s enrolment was cancelled 18 December 2017. He was unable to continue his studies when his COE was cancelled by his education provider because he had failed to re-enrol.  The applicant told the Tribunal he was having trouble focussing on his studies and moved to Melbourne from Sydney where he had commenced the study a Masters in Business Administration.  He told the Tribunal that he had only been able to successfully complete three subjects over two years, and these subjects had been acknowledged as exemptions when the applicant enrolled to commence his study in Melbourne. Since his re-enrolment Bachelor of Project Management in Melbourne and his commencement of study, he had not completed any additional subjects, or received any additional accreditation. The applicant has chosen to stay in Australia during this time and told the Tribunal that he has studied a Certificate III in Telecommunications, which was a 6 month course and this has enabled him to work 20 hours per week in Telecommunications working for the NBN.  On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

   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 Procedural Instruction ‘General visa cancellation powers’.

   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 told the Tribunal that he applied to study in Australia with the intention of gaining a Masters of Business Administration.  Since he initially enrolled, he has been unable to maintain his enrolment; the applicant told the Tribunal that he was unable to settle and therefore unable to make academic progress over a two year study period. Apart from his initial three subjects that were attained previously in Sydney the applicant did not make any academic progress in Melbourne after his commencement of Master of Business Administration studying Management and Leadership.

11. The applicant told the Tribunal that he was working in Mining in India prior to coming to Australia to study and has worked as a Cleaner on call, as a trolley collector for Coles 7 hours per week and currently works 20 hours per week as a Telecommunications technician for the NBN after studying a Certificate III in telecommunications in Melbourne over a 6 month period. In assessing the applicant’s submission and evidence provided, the Tribunal understands that the applicant would like to graduate, but the Tribunal finds that he has had sufficient opportunity to progress his academic pursuits and has not been able to do so.  The Tribunal can find no compelling reason for the applicant to travel and stay in Australia and gives no weight in favour of exercising discretion not to cancel.  

    The extent of compliance with visa conditions

12. The applicant did not comply with his visa condition by not maintaining his enrolment in a registered full-time course. The applicant told the Tribunal that his mother had become critically ill in India, and the applicant travelled to India to be with his mother.  The applicant did not notify the education provider of his circumstance or request a deferment, nor did he notify the Department of his situation, and allowed for his enrolment to be cancelled. The Tribunal has some sympathy for the applicant in the circumstances of his mother’s illness and passing, but it does not accept that the applicant could not have asked the education provider for a deferment in this situation, and does not find that these circumstances were beyond the applicant’s control. The Tribunal in considering this gives little weight in favour of the applicant in this regard.       

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

13. The applicant told the Tribunal that he really wanted to complete a Masters Degree, which would then give him the opportunity to successfully apply for Managerial roles in India. The applicant has been in Australia since July 2014, when he arrived as a 23 year old.  The applicant is now 30 years old and has made little academic progress in that time in Higher Education for which his visa was provided. He has gained a qualification in Telecommunications and provided the Tribunal with a copy of a Certificate iii in Telecommunication Technology from Milcom Training and Development Solutions, which has enabled him to work in the Telecommunications industry installing NBN for which he is paid $400-$500 per week for working up to 30 hours.

14. The applicant told the Tribunal that he completed a course in Mechanical engineering before coming to Australia to study and worked in the Mining Industry and that he had considered studying in India but that the course was not as practical or viewed as highly as an Australian qualification.  The applicant submitted to the Tribunal that he has paid $60,000 - $75,000 in student fees to date and only completed three subjects, and that he would be required to study for an additional two years to complete his Master’s Degree.  He told the Tribunal that he “would face difficulty without his qualifications”, and that “he would then like to stay for a further two or three years after completing his course to work and gain further experience and then move back to India”.

15. The Tribunal accepts that the applicant may experience some hardship, and in particular with regard to financial hardship, as he has paid a significant amount of money so far to further his education, with little to show for the time and money spent. The Tribunal also takes into consideration the Trade qualifications that the applicant has successfully undertaken in Telecommunications, and his previous qualifications in Mechanical Engineering coupled with his work experience gained in Australia in the field of Telecommunications, and his previous workplace expertise in Mining.

16. The Tribunal  finds that the applicant has gained more than enough skills to undertake a number of endeavours in his home country, and whilst sympathetic to the applicant in regard to the expenditure undertaken, the Tribunal has seen no evidence that the applicant will suffer any significant and ongoing hardship in relation to his future, and therefore does not place any significant weight in considering exercising discretion not to cancel.           

    Circumstances in which ground of cancellation arose. 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

17. The applicant became un-enrolled when he returned to India for two and a half months in order to be with his mother, who was in Intensive care suffering from pancreatitis, and ultimately passed away.  The applicant told the Tribunal that his mother had been ill for some time and that she had become very ill, which required that he return home to India. When asked why he did not contact the education provider or the department, the applicant told the Tribunal that he did not think that there was a problem.

18. The applicant told the Tribunal that he was having difficulty with his study prior to the circumstance with his Mother, and that he found the language very hard and was not doing very well. He experienced significant difficulty with several of the subjects, including the Accounting subject, and had only been able to pass three subjects in the time he was studying. In considering the circumstances, the Tribunal does not think that this was beyond the applicant’s control, as he did not provide evidence that he had sought assistance with his studies, and told the Tribunal that he had not sought a deferment from the Education provider, nor had he notified the Department of his situation, which he could have done even under the circumstances by email. The Tribunal gives little weight in favour of exercising discretion not to cancel.

    Past and present behaviour of the visa holder towards the department

19. The applicant has been co-operative and courteous in all his dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some minor weight is given in favour of the application in consideration of this.

    Persons in Australia whose visa would be cancelled under s.140

20. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would or, may be cancelled under s.140 of the Act. According to Department records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

    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 the cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

21. The applicant understood that he would need to return to India if his visa was cancelled.  I acknowledge he would need to apply for a bridging visa E to remain lawfully in Australia to enable the applicant to finalise any outstanding matters and it was discussed with the applicant that he would be subjected to Section 48 of the Act which would limit his options for returning to Australia or applying for other visas.  

    Any breach of International obligations Australia may have as a result of the applicant’s visa being cancelled

22. The circumstances of this case are such that they would not engage Australia’s International obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

23. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal has some concerns that the applicant may, based on his submission, the length of time he has spent in Australia and his lack of academic achievement, be using his Student Visa to maintain ongoing residence and to continued stay in Australia. The applicant told the Tribunal that he would like to stay in Australia and gain work experience as a Chef; and stay permanently “If he gets residency here”.  This factor was heard in evidence and the Tribunal places some small weight against the applicant in this regard.

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.

    Donna Petrovich
    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.