Kakkar (Migration)

[2021] AATA 1201

Kakkar (Migration) [2021] AATA 1201 (15 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rishu Kakkar

CASE NUMBER:  1934355

HOME AFFAIRS REFERENCE(S):          BCC2017/3805353

MEMBER:Meredith Jackson

DATE:15 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 15 March 2021 at 4:39pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment in registered Higher Education courses ceased – applicant completed no courses – family bereavement – regular return visits to family – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 48, 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.12

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 January 2018 to cancel the applicant’s Subclass 500 visa under section 116(1)(b) of the Migration Act 1958 (the Act).

1. The visa was cancelled on the basis that the applicant breached a condition of his visa to remain enrolled in a registered course (condition 8202). The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

Remittal of Tribunal decision

1. On 20 July 2018, the Tribunal, separately constituted, reviewed the case and affirmed the decision to cancel the visa. The decision was remitted to the Tribunal by the Federal Circuit Court of Australia on 2 December 2019, after finding that the Tribunal failed in discharging its obligations under s 359(1) of the Act by failing to properly advise the applicant that he could seek additional time to comment on or respond to information in the applicant’s record in the Provider Registration and International Student Management System (PRISMS) put to him under s 359AA of the Act.

Case summary

1. The applicant has been in Australia for seven years and has not completed any course of study. He came to Australia to study in the higher education sector. He was enrolled in a Masters of Information Technology degree at Griffith University which was cancelled for non-payment of fees in May 2015. He claims the sudden death of his father in March 2015, and the need to attend to his mother, severely affected him and disrupted his study. Between 2015 and 2017, he travelled to India several times, worked part-time and enrolled in a vocational diploma courses and a Masters of Business Administration (MBA) at Holmes College. He was granted the visa under review in October 2016 to study the MBA and in April 2017, his record shows he notified cessation of those studies. The delegate found he breached his visa by not being enrolled between April 2017 and December 2017.

Issue

1. 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.

Condition 8202

1. 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).

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

1. Condition 8202 as it applies in this case requires the visa holder to remain enrolled in a registered course. The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review. In that decision, the delegate found that the applicant had not been enrolled in a registered course between 20 April 2017 and 30 November 2017. The applicant does not dispute that the breach occurred.

The hearing

1. At the hearing, the Tribunal indicated to the applicant that it was important he understood that the Tribunal was making a fresh decision in his case. It noted that the applicant had not made any new submissions in relation to the current review and asked whether, there were new matters he wished to raise in support of his case. The applicant responded that he had no new matters to raise, however stated that he felt the first Tribunal’s decision was unfair because he was not listened to and the decision was made, in his view, quite quickly.

10.  The Tribunal explained to the applicant that the decision had been remitted because of a procedural error relating to how much opportunity he had been granted to review his PRISMS record. The Tribunal said it was important that this be addressed as part of the current review of the case and he was given enough time to consider the PRISMS record. The applicant stated he understood.

11.   In order to extend procedural fairness, the Tribunal, prior to the hearing, had sent the applicant a copy of his PRISMS record, stating that it may be referred to in the hearing. In the hearing, the applicant confirmed that he had received the copy of the record and had it with him. The applicant stated he was driving at the moment but could talk about the record while doing so. The Tribunal stated it could wait until he reached his destination to discuss it with him. The applicant responded that he was on hands-free, had read it, and noted: “It only contains a few items, right?”

12.  The Tribunal indicated that PRISMS contained detailed information about his course enrolments, course cancellations and the reasons for the cancellations. The Tribunal pointed out why the information was relevant to his case, because if it relied on the information it would be the reason, or part of the reason, to affirm the delegate’s decision to cancel the visa. The applicant asked how much more time he might be given if he asked, wherein the Tribunal indicated he first needed to request additional time, explain his reasons for the request, and the Tribunal would consider the request. After some discussion, wherein the Tribunal noted he had already had at minimum, two years to understand the information and that he himself had said it was only a few items, he decided to comment immediately. The relevant information was put to him (on arrival at his destination) with advice to take his time considering it.

13.  The Tribunal said that the record appeared to confirm that he had not maintained enrolment as required while he held the visa under review. While the Tribunal had not made up its mind about this, the information appeared to show that between 20 April 2017 and 4 December 2017, he was not enrolled in a registered course. The applicant confirmed the PRISMS record was correct and he did not dispute that he did not maintain enrolment in the period between 20 April 2017 and 4 December 2017.

14.  On the evidence before it, the Tribunal finds 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 not to cancel the visa

15.  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’.

16.  The Tribunal is satisfied the purpose of the applicant’s travel to and stay in Australia was for study and no other purpose. While the applicant since arriving has not been enrolled as required and was working part-time to support himself until the cancellation, for the purposes of this decision the Tribunal accepts that the applicant has not used the visa for purposes other than study. The Tribunal affords this consideration some weight in his favour.

17.  The Tribunal has considered the extent of compliance with the applicant’s visa conditions. As recorded earlier in these reasons, the applicant did not comply with condition 8202 of the visa under review, however the Tribunal accepts that he has otherwise substantially complied with the conditions of the visas he has held since 2014 and the Tribunal weighs this in his favour.

How the cancellation arose

18.  The circumstances in which the ground for cancellation arose are that on 19 March 2015, less than one year after the applicant arrived in Australia, his father died. The applicant has provided documentary evidence to support this. He claimed in the hearing that it was sudden. He said his father had become ill three or four months after the applicant started studying. Until that time, he claims, he was studying well but his father’s demise was distressing, and he began to fail subjects. On 27 April 2015 his course was deferred by the university on compassionate grounds. The university advised him he could defer his studies and deal with his distress and his PRISMS record tends to support this claim.  On 21 May 2015, however, the course was cancelled for non-payment of fees. In July 2015 he enrolled in a Diploma of Leadership and Management, a course that ranks four levels below a Master degree in the Australian Qualifications Framework (AQF). He claims he chose the course because he wanted to strengthen his study base and re-enrol in a Master degree.

19.  From December 2015, the applicant travelled to India in what he called “three of four times in a span of six months” to tend to his mother, who was ill. He returned to Australia in March 2016, and in October 2016 he was granted a further student visa to study a Master of Business Administration (MBA) at Holmes College. On 20 April 2017 his course was cancelled, according to PRISMS, for the reason that he notified cessation of studies. That began the period in which the breach occurred. He did not study but brought his mother to Australia in September 2017 to live with him because there was “no one in India” to look after her. On 27 November 2017 he received the Notice of Intention to Consider Cancellation (NOICC) from the department and by 4 December 2017 he was enrolled in a Graduate Diploma of Management (Learning). That course was cancelled when, in January 2018, his visa was cancelled.

20.  The applicant claims that MBA cancellation occurred because Holmes College misled him into believing that the course had been put on hold, and he could pay his fees and study later. He has not provided written evidence of this, he says, because it was an oral statement. He said the notation in PRISMS that the MBA was cancelled because the student notified cessation of studies is “just lying”. He first knew of the course cancellation in May 2017, he claims. The reason he was not subsequently enrolled until December 2017 was because he was “just waiting for the right course”. The Tribunal put to him that he might have taken action to enrol more quickly, and given PRISMS showed  he had notified cessation of studies as shown, it looked likely that he had enrolled in response to receiving the NOICC in November 2017 and wanted to rectify his record. The applicant responded that he realises it looks bad, but he was misled. The reason he could not have enrolled mid-year in another MBA was because he could not afford it, so he chose to wait for the Diploma course in December 2017.

21.  The Tribunal has considered the applicant’s period of non-enrolment, and fully considered his explanations of it at the hearing. The Tribunal finds it them to be somewhat contradictory in that he has blamed the absence from study on his provider ruthlessly cancelling his course without consultation, but then states he knew about that in May 2017 and could not afford to pay MBA fees for a new mid-year enrolment. The Tribunal has also had regard to the delegate’s decision and the previous Tribunal decision and the relevant Tribunal and Department files, and the documentary submissions in response to the NOICC and to the earlier review. While they are reasonably consistent, they do not fully explain the gap in his studies. The Tribunal is inclined to believe his statement at the hearing that he simply could not afford to study at that time and that he believed he could take his time and enrol whenever he wanted as long as his visa remained current.

22.  The Tribunal has considered the claim that the cancellation of his visa arose from the loss of his father and his concern about his mother’s bereavement. The Tribunal accepts that was a factor but concludes it does not align well with the gap in his studies in the period between 20 April 2016 and 4 December 2017. The Tribunal concludes the applicant has overly emphasised his personal circumstances to justify a lack of commitment to study in that period, and more generally, to explain having not completed a single course in seven years. The Tribunal notes the applicant disputes just one entry in his PRISMS record, that of Holmes College in stating he notified cessation of his MBA studies. The Tribunal accepts institutions may get things wrong from time to time, but finds it thoroughly unlikely that a Masters student would be so out of touch with his education provider that he did not know that his course had been cancelled and why and then could not produce supporting evidence of a mistake. He has provided no supporting evidence that the institution, as he alleges, was “just lying”. He has simultaneously stated that he could not afford to re-enrol in an MBA mid-year and was waiting for a diploma course which is ranked below his initial degree attainment in India.

23.  The Tribunal having considered all the circumstances leading to the cancellation, weighs them heavily against him.

The extent of hardship if the visa is cancelled

24.  The Tribunal accepts the applicant will suffer a degree of embarrassment if the visa is cancelled, and that his mother will be profoundly disappointed to find out about it, as he claims. The Tribunal notes however, that his mother was, on the applicant’s evidence, in Australia at the time the visa was cancelled. The applicant argued towards the end of the hearing that a negative decision may lead to his mother’s early demise and that he will have to live with his study failure all his life. The Tribunal agrees that this is an empty outcome for seven years abroad and notes the applicant’s claim that he has “wasted” seven years and a lot of his family’s money on his Australian education journey. He will undoubtedly suffer dented pride as a result, but not because, as he claimed in the hearing on several occasions, an MBA college misled him. The Tribunal notes he has some advantages in life to protect him: a brother who is an Australian citizen with whom he lived until recently” his mother and two siblings in India: a Bachelor degree in science from India. The Tribunal considers these circumstances are likely to stand him in stead and protect him economically while his mother will benefit from his return to India to lend support.

25.  The applicant claims he wants just one more chance to study in Australia and he will not let people down this time. The Tribunal has taken this request into account but finds his study record in Australia does not support that he is likely to complete a course.

26.  The applicant claims he has been in touch with the department repeatedly since the provision of his study and work-restricted Bridging visa E to try and vary his conditions to allow him to study or even work. The Tribunal notes that he responded to the NOICC and has attended at all times to the progress of his application, cancellation process and the reviews in the Tribunal and the Court. The Tribunal weighs this record of cooperation in the applicant’s favour.

27.  There will be no consequential cancellations as a result of this decision. His only close relative in Australia is his brother who is an Australian citizen.

Whether there are mandatory legal consequences

28.  The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the likely impacts of legal consequences in the case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and, in those circumstances, will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia.

29.  In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately, he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore.

Whether any of Australia’s international obligations would be breached as a result of the cancellation

30.  In considering whether to exercise its discretion to cancel the applicant’s visa, policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). No information is before the Tribunal that a cancellation outcome would breach of any of Australia’s international obligations.

Conclusion

31.  The Tribunal has carefully considered all the applicant’s claims and evidence and weighed its considerations in the case accordingly. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

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

Meredith Jackson

Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.