Kakkar (Migration)

[2018] AATA 3534

Kakkar (Migration) [2018] AATA 3534 (20 July 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Rishu Kakkar

CASE NUMBER:  1800991

DIBP REFERENCE(S):  BCC2017/3805353

MEMBER:  Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          20 July 2018 at 3:14 pm (QLD time)

DATE OF WRITTEN RECORD:               7 August 2018

PLACE OF DECISION:  Brisbane

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

.

Statement made on 07 August 2018 at 3:23pm

CATCHWORDS

Migration – Cancellation – Student (Temporary)(Class TU) – Subclass 500 (Student) – Breach of enrolment conditions – Poor academic performance – Gap in study – Personal difficulties –– Death of father – Mother’s poor health – Visits to India – Failure to re-enroll in a course – Lack of desire to complete course – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 condition 8202, 8516

APPLICATION FOR REVIEW

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. At the hearing on 19 July 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

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

1. The applicant appeared before the Tribunal on 20 July 2018 to give evidence and present arguments.

CONSIDERATION OF CLAIMS AND EVIDENCE

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 of the Migration Regulations 1994. If the applicant has breached that condition, under Section 116 of the Act, the visa may be cancelled.

Did the applicant comply with condition 8202?

1. Condition 8202 as it applies in this case requires the visa holder to remain enrolled in a registered course. The Delegate found that the applicant had not been enrolled in a registered course between 20 April 2017 and 30 November 2017. The applicant has admitted that he was not enrolled in a registered course between those dates, and on the evidence before the Tribunal, the Tribunal finds that the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202.

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with the condition of the visa, the Tribunal must consider whether it will exercise its discretion to affirm the decision to cancel the visa. There are no of matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion, however the Tribunal has had regard to the matters raised by the applicant and those provided in documents by him to the Tribunal as to why the visa should not be cancelled. The Tribunal has had regard to the information contained on Department and Tribunal files. The Tribunal has also had regard to government policy guidelines contained in the Department's Procedures Advice Manual.

1. When the applicant arrived in Australia in April 2014 he was enrolled in a Masters of Information Technology degree at Griffith University. That course was to run from July 2014 until June 2016. The applicant said that in his first semester of that course that he had found the course very difficult. He said he was homesick and that this affected his ability to study.

1. The applicant said that he failed all of the subjects in his first semester at Griffith University. The applicant said that the second semester was to commence in March 2015. He said that he was informed that his father had passed away on 19 March 2015. At the time, he said that his mother was visiting Australia, and that his brother was living in Australia. He said that they returned to India to attend funeral proceedings, but that the applicant remained in Australia.

1. The applicant said that the death of his father and its impact on his mother greatly affected him, and that he wished to defer his course and that his course was deferred for a short period of time from April 2015. He did not pay his fees for that semester, and his enrolment in the Masters course was cancelled in May 2015 as a result. The applicant was not enrolled in any courses between May 2015 and June 2015 when he enrolled in a Diploma of Leadership and Management which was to run from July 2015 until July 2016.

1. The applicant said that he was still affected by the death of his father during this period and that he again was unable to progress satisfactorily in that course, and in November 2015 his enrolment in that course was cancelled for unsatisfactory course progress.

1. The applicant was not enrolled in any course between November 2015 and August 2016 when he enrolled in a Masters of Business Administration with Holmes College. In the period when he was unenrolled between November 2015 and August 2016 the applicant visited India on three occasions, between December 2015 and March 2016. He said that he was required to return because his mother was unwell. He mentioned that she had had heart problems and that he returned to India to support his mother.

1. However, the Tribunal notes that even on his return to Australia in March 2016, he did not enrol in any courses between March 2016 and August 2016. The applicant admitted that he was working part time during that period. The applicant's course at Holmes College in a Masters of Business Administration began in August 2016, but again he said that he was unable to pass any subjects in that course and that his enrolment in that course was cancelled in April 2017 for a failure to re-enrol. In the meantime, the applicant had been granted a subclass 500 visa, which is the visa that is subject to this Tribunal, in October 2016.

1. Again the applicant went through a period when he was not enrolled from April 2017 to November 2017, and it is that period in which he breached condition 8202 in relation to his subclass 500 visa. The applicant had travelled to India in April 2017 for some three weeks, again to assist his mother and to start making arrangements for her visitor visa to visit Australia. The applicant explained that he was not enrolled during that period as he was organising for his mother to settle in Australia, but then in around October he started looking to enrol himself in other courses.

1. The Department had sent the applicant a Notice of Intention to Consider Cancellation on 23 November 2017 in relation to his breach of condition 8202 and he enrolled in a Graduate Diploma of Management on 30 November 2017.

1. As mentioned previously, his visa was cancelled on 9 January 2018. The applicant has ceased all studies since that time. The Tribunal notes that the applicant was aware that he did not have a ‘no study’ condition attached to his bridging visa and could have studied between the cancellation of his visa in January 2018 and the present day.

1. However, the applicant said that after his visa was cancelled he approached the institution where he was studying the Graduate Diploma of Management and they informed him that he could no longer continue his studies. The applicant said that he spoke to an officer of the Department of Immigration who told him that his student visa was cancelled and the applicant says that the officer told him that he would not be able to obtain enrolment in any other courses.

1. As mentioned previously, nonetheless the applicant attempted to re-enrol with the institution where he was studying his Graduate Diploma of Management with no success and said that he decided not to try to enrol with any other institutions, as he believed that he would not gain acceptance in any other institutions.

1. The Tribunal asked the applicant whether he or any of his family members would suffer hardship if his visa remained cancelled. The applicant said that he would suffer hardship, as he would be prevented from applying for another visa to Australia in three years; that he believed that if he completed a Diploma in Management in Australia that this would improve his employment prospects in India on return.

1. He also emphasised that he had not told his mother either that he was failing courses, that he went through long periods of not being enrolled, or that his visa had been cancelled. He said that he believed that his mother may be seriously adversely affected including adverse effects on her health if she was to learn that the applicant's visa was cancelled and that he would have to return to India.

1. The applicant explained, however, that if his visa did remain cancelled that he would return to India as would his mother, and he could look after his mother in India.

1. The Tribunal raised with the applicant its concern that, as the applicant had failed all the subjects in his first semester in his Masters course at Griffith prior to his father passing away, that he had been unable to pass any subjects or he had been unable to successfully complete his Diploma of Leadership and Management, that he had failed all the units in his Masters of Business Administration at Holmes and that perhaps because of the headaches, stress and pressure he said that he felt in Australia, he may not have the ability to successfully undertake an education course in Australia.

1. The applicant told the Tribunal that he wanted a chance and that he could try to successfully undertake a course in Australia.

1. The Tribunal raised with the applicant its concern that, because the applicant ceased his studies in the Masters course at Griffith to undertake vocational courses, was in breach of condition 8516 which required him to remain enrolled in his Masters course, because he had gone through long periods of living in Australia without even being enrolled in a course, only re-enrolled in a course after he had received the Notice of Intention to Consider Cancellation and had failed to continue to study in Australia after the visa was cancelled, he may not have the will or desire to successfully undertake an education course in Australia.

1. The applicant responded that in relation to not undertaking study after the visa was cancelled that he was awaiting the decision of the Tribunal before recommencing study. He asked the Tribunal to give him one more chance to complete a course in Australia so that he could finish at least one course in Australia before returning to India, that this would improve his prospects of a good job in India on his return.

1. The Tribunal finds that the applicant does not have the ability to successfully undertake an education course in Australia. The Tribunal considers that this is evidenced by the applicant's extremely poor academic history in Australia, that he failed all of the units in his first semester in the Masters course, that his enrolment in the Diploma of Leadership and Management was cancelled because of unsatisfactory course progress, and because he said that he failed all of the units in his Masters of Business Administration course.

1. The Tribunal is willing to accept that the applicant had some difficulties emotionally during his time in Australia owing to the passing of his father in March 2015 and the effect that that had on his mother in terms of her health and wellbeing. The Tribunal is willing to accept that the applicant has had periods where he has been upset and stressed because of his father passing away and the effect that that has had on his mother's health. The Tribunal is also willing to accept that the applicant has had headaches and some stress this year, which currently seem to be unresolved.

1. However, the Tribunal does not consider that these matters adequately explain his failure to pass courses in the past, and indeed these factors may also lend support to the view that the applicant does not have the ability to successfully undertake a higher education course in Australia.

1. The Tribunal also finds that the applicant does not have the will or desire to successfully undertake an education course in Australia. The Tribunal considers that this is evidenced by the long periods when the applicant has lived and worked in Australia where he has not even been enrolled in a course, by the fact that he waited until after he received the Notice of Intention to Consider Cancellation to re-enrol in a course, and by the fact that he hasn't sought to study since the cancellation of his visa.

1. The Tribunal is willing to accept that the applicant and his family members may suffer disappointment and be upset that the applicant's visa was cancelled before he was able to complete any courses in Australia. However, the Tribunal notes that the applicant holds a Bachelor of Science degree from Punjab University in Computer Science, and from his past academic history in Australia it appears that as mentioned previously, that he does not have the ability to complete a course in Australia.

1. The Tribunal has also considered that the applicant's mother may be quite upset when she finds out that the applicant's student visa was cancelled, and that this may have an adverse effect on her health. However the Tribunal notes that it was the applicant's decision to not inform his mother that he was failing units, that he was living in Australia without studying, and that his visa had been cancelled.

1. The Tribunal also considers that the applicant's mother would be assisted by the applicant returning as he would be able to care for her, and indeed said that he would care for her if his visa was cancelled and he and she would return to India. Overall, however, the Tribunal accepts that the applicant and his mother would suffer some hardship if his visa remained cancelled.

1. However, the Tribunal considers that the applicant's lack of ability and desire to successfully undertake education courses in Australia weigh heavily in favour of the affirmation of the cancellation of his visa and while hardship to him and his family, especially he and his mother, weigh against the affirmation of the cancellation of his visa, the Tribunal finds that the applicant's lack of will and ability to successfully undertake an education course in Australia heavily outweigh the hardship that may be caused to him or his family members if the visa remains cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s (Class TU) visa.

Tigiilagi Eteuati Member