Gourav (Migration)

Gourav (Migration) [2020] AATA 1342 (5 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gourav Gourav
CASE NUMBER:  1929746
HOME AFFAIRS REFERENCE(S):          BCC 2019 / 3200391
MEMBER:Vanessa Plain
DATE:5 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 05 February 2020 at 3:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a higher level registered course ceased – applicant changed to diploma course – family financial hardship – 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

This is an application for review of a decision dated 14 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).
The delegate cancelled the visa on the basis that the applicant did not 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. 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 18 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
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?
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, 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: 8202(2)(b)
In the present case, the applicant’s visa was cancelled on the basis the applicant did not 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.
An examination of the Delegate’s decision record reveals that the applicant’s student visa was granted in relation to the following courses:
·An Advanced Diploma of Leadership and Management scheduled to commenced on 9 July 2018 and conclude on 9 November 2018; and
·A Bachelor of Business scheduled to commence on 19 November 2018 and conclude on 16 July 2021.
The Bachelor of Business degree, once completed, would provide the applicant with a Level 7 (Bachelor Degree) qualification from the Australian Qualifications Framework (AQF). Information contained in the PRISMS system, indicated that on 10 December 2018, the applicant’s enrolment in the Bachelor course was cancelled by the education provider citing ‘non commencement of studies.’
On 10 January 2019, the applicant obtained enrolment in a Diploma of Automotive Technology. The Diploma is at AQF level 5.
On 28 August 2019, the Department sent a Notice of Intention to Consider Cancellation of Visa (NOICC) to the applicant, for non-compliance with condition 8202(2)(b) of the applicant’s student visa.
The applicant responded to the NOICC in writing on 11 September 2019. In the response, the applicant did not disagree that there were grounds for cancellation of his student visa.
Further on 11 September 2019, the applicant obtained a new enrolment in a Graduate Diploma of Management. The Graduate Diploma is at AQF level 8. However, the Tribunal notes that this course does not start until 20 September 2021, which is after the expiry of the applicant’s visa, on 16 September 2021.
At hearing, the applicant agreed he had breached the condition of his visa. He provided reasons for his non-compliance with the visa condition in his NOICC and in his evidence at hearing. The Tribunal sets those reasons out below.
On the evidence before the Tribunal as set out above, the applicant did not 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.
Accordingly, the applicant has not complied with condition 8202(2)(b).
Consideration of the discretion to cancel the visa
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’.
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
The applicant initially arrived in Australia as the holder of a Higher Education Sector student visa granted on 2 July 2018 for the purpose of studying A diploma of Leadership and Management; and a Bachelor of Business. The Bachelor of Business is an AQF level 7 course. That is the purpose for which the visa was granted.
The purpose for which the visa was granted ended on 10 December 2018 when the enrolment in the Bachelor of Business was cancelled. The applicant has not studied in an AQF level 7 course, or higher, since being in Australia.
Despite re-enrolling in an AQF Level 8 course (as set out above), this course does not start until after the expiry of the applicant’s visa.
The Tribunal finds that while the applicant has demonstrated that his initial primary purpose for being in Australia was for the purpose of study, that purpose ended on 10 December 2018 and given that the applicant has not undertaken further study to date at the AQF level 7 or higher, his purpose for being in Australia is no longer in line with the purpose for which the visa was granted and I give this some weight in favour of the visa being cancelled.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2). The applicant has provided reasons for the breach in his NOICC response and at hearing, which are set out below.
Apart from the applicant’s non-compliance with condition 8202(2) there is no evidence before the Tribunal that the applicant has breached any other visa conditions and I give this minor weight against cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal acknowledges that the applicant will suffer some hardship if the visa is cancelled, he will not be able to complete his Bachelor Degree and his parents may be disappointed. He may also suffer some financial hardship as a result of having already paid some fees for the courses that he has undertaken. I accept that some psychological hardship will befall the applicant as a consequence of these matters.
However, there is no evidence before the Tribunal of family members being impacted in Australia by the cancellation, nor is there any evidence before the Tribunal to suggest that the applicant cannot undertake courses of study in his home country.
Based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant and the Tribunal gives this a little weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
In his response to the NOICC, the applicant gave the following reasons for breach of his visa condition, namely:
·His non-compliance was unintentional
·Two of his earlier education providers closed down and this affected him. He claimed this affected his mental health and he became sick from stress. He claims further that the closures caused him to suffer PTSD.
·His family was experiencing financial difficulty which caused him to choose a different course of study.
In his evidence at hearing, the applicant stated:
·His father was very unwell and as a result, his family were enduring financial difficulties. He provided documentary evidence in support of that contention.
·The automotive course was cheaper than the Bachelor of Business
·He was so stressed about his father’s situation in India, that he decided to take an easier course because he did not think he could handle the Bachelor of Business.
The applicant’s agent submitted that the applicant was ‘scarred’ to do the IT course (Bachelor of Business) and that the applicant was suffering from depression at the time.
There was no medical evidence produced at hearing in support of the health issues set out above. The applicant sought further time to provide a medical report. The Tribunal granted that request and ordered that the applicant produce a medical report by 4:00pm on 3 January 2020. A further request for more time to provide a medical report was sent by the migration agent to the Tribunal on 6 January 2020. A request for an extension until 17 January 2020 was sought and was granted. No medical report has been filed with the Tribunal as at the date of this decision.
Given the absence of medical evidence, the Tribunal is not satisfied that any alleged medical conditions suffered by the applicant caused or contributed to the breach of his visa condition.
Moreover, there is no evidence before the Tribunal that he sought a deferral of his Bachelor of Business degree in the circumstances.
In view of the matters set out above, the Tribunal cannot be satisfied that there are compelling or compassionate reasons for the circumstances surrounding the cancellation of the visa. The Tribunal finds that the circumstances surrounding the cancellation of the visa were reasonably within the control of the applicant and gives this significant weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
The applicant has conducted himself in good faith in his dealings with the Department. This is demonstrated by the fact that he responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with his response to the Department. I give this some weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
The applicant gave evidence that there are no consequential cancellations as a result of his visa being cancelled. I therefore give this no weight in favour of the visa not being cancelled.
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
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country. However, these are mandatory consequences of the legislation and in view of the fact that I have found that the reason for the breach of the visa was reasonably within the control of the applicant, I give this little weight in favour of the visa not being cancelled.
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
Not applicable.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
There a no other relevant matters.
Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Vanessa Plain
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.

[2020] AATA 1342

5 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Breach

Statutory Construction

Remedies