KAPIL KUMAR (Migration)

[2017] AATA 2694

KAPIL KUMAR (Migration) [2017] AATA 2694 (7 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KAPIL KUMAR

CASE NUMBER:  1615573

DIBP REFERENCE(S):  BCC2016/2631367

MEMBER:Antoinette Younes

DATE:7 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 December 2017 at 6:03pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa– Subclass 573 Higher Education Sector visa – Failed to comply with visa conditions – Not currently  enrolled in a registered course – Unsatisfactory academic progress in previous course – Financial hardship – Father was ill – No extenuating circumstances

LEGISLATION
Migration Act 1958 ss 116(1), 116(1)(b), 140
Migration Regulations 1994 Schedule 8 Conditions 8202, 8202(2), 8202(3)(a), 8202(3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector 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 comply with condition 8202 attached to his visa. 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 5 December 2017 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

7. 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).

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

9. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review. Specifically, the Tribunal indicated to the applicant that information available to the Department in the Provider Registration and International Student Management System (PRISMS) shows that at the date of the delegate’s decision record of 14 September 2016, the applicant had not been enrolled in a registered course since 27 July 2015.  The applicant agreed with this information.

10. On the evidence before, the Tribunal finds that since 27 July 2015, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2). It therefore follows that the ground for cancellation under s.116(1)(b) arises.

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

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

13. The applicant has claimed that the purpose of his travels and stay in Australia was to study and he was granted the visa for that purpose.

14. On his own evidence, the applicant has completed one course, ELICOS, but for over 2 ½ years, he has not completed any other course.  He gave evidence that although he was enrolled in a Certificate IV course in Accounting at Zenith Business Academy, he failed three subjects and did not finish the course.  The Tribunal gives significant weight to the fact that the applicant has not completed, apart from the ELICOS course, any courses in over three years since his arrival in Australia.

15. In post hearing submissions, the applicant indicated that he is trying to obtain an offer from Elite Education to show that he is keen, willing to study and comply with the visa conditions. The Tribunal accepts that the applicant post hearing is making attempts to secure an offer, and the Tribunal has given his efforts some weight. However, it is difficult to accept that the applicant for a substantial period of time did not complete any courses.

16. The Tribunal accepts as plausible that the applicant travelled to Australia to study, but on the evidence before it, the Tribunal is not satisfied that the applicant is staying in Australia for study purposes or that he has a compelling need to remain in Australia.

    The extent of compliance with visa conditions - whether the applicant has otherwise complied with visa conditions now and on previous occasions

17. Although the evidence before the Tribunal suggests unsatisfactory academic progress

18. , the applicant’s visa was cancelled on the basis of non-compliance with condition 8202 which the Tribunal considers to be significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members - whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

19. In the course of the hearing and in post hearing submissions, the applicant indicated that he would like to continue with his studies and return to India with a degree.  In post hearing submissions, he noted that he had not told his parents in India about the situation and that his parents still believe that he is studying, almost completing his course. He stated that not telling his family has caused him guilt but he did not want to cause them any further distress.

20. The Tribunal acknowledges that the applicant came to Australia to study and he has completed a course. The Tribunal accepts as plausible that if the visa were to be cancelled, there could be a degree of disappointment to the applicant and to his family in India. The Tribunal has given this aspect some weight.

21. The Tribunal is mindful that the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

22. Looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The Circumstances in which ground of cancellation arose - whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence.

23. On 13 September 2016 and in response to the notice of intention to consider cancellation, the applicant stated that his purpose to travel to Australia was to study and settle down but he was caught in financial hardship and he was living “miserable days and did not have a chance to pay my fee and continue with my studies. Other expenses also arose, I was unable to handle it because I was new here, so it just took little more to manage all the things.”  He stated that he was a bright student but he did not have a chance to pay his fees to continue with his studies. He applied for an offer recently and he would like another chance to prove himself.

24. The applicant provided copies of an offer of enrolment at Duke College, dated 7 September 2016 for the course of Advanced Diploma of Business commencing on 19 September 2016 to 15 September 2017.  He also provided copies of an offer from Group Colleges Australia dated 30 May 2016 relating to the courses of Advanced Diploma of Leadership and Management and Bachelor of Business, commencing on 11 July 2016 and finishing on 17 July 2017 but he did not accept the offers.  He stated that he was constantly trying to get admission into other courses but he was broke and was unable to pay the fees. He stated that he was supposed to get funds from his parents from India but his father was sick. He stated that the family had to sell property and the applicant himself travelled to India from 27 April 2015 until 19 May 2015. He stated that he was facing hardship and he did not have support. He said no one picked him to show him the hostel and that he had paid for the service. He said he was facing a hard time and his father was ill so he could not focus on his studies.  He said he went to India and did not study for three to four weeks.

25. The Tribunal referred to the applicant’s response to the notice of intention to consider cancellation and noted that in that response, there is no mention of his father’s illness or the sale of properties.  The Tribunal expressed concerns about the fact that the applicant has not provided any corroborative evidence to support those claims. The representative who was appointed the day before the hearing requested further time to provide corroborative evidence and the Tribunal agreed but indicated that the Tribunal would consider the weight that it would place on information provided. In post hearing submissions, the applicant advised that his parents are unable to send him corroborative medical evidence relating to his father’s health or loss of property by the due date and also because they are “out of the home state”.  He indicated that his parents are now in an improved financial situation and they are able to assist him financially.

26. The Tribunal has carefully considered and although this was not requested, to give the applicant more time, however, the Tribunal has decided to give the applicant the benefit of the doubt and accept that his father was ill as stated and that there were some financial issues in the family. The fact that those matters were not mentioned in the response to the Department raises some doubts about the impact they have had on the non-compliance.  The Tribunal has however given those matters some weight in the applicant’s favour but it is important to note that the applicant was granted a student visa and he had to demonstrate, amongst other things, financial capacity. This means as visa holder, the applicant must have and continue to have sufficient financial capacity to support his study and stay in Australia.

27. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to his visa. The Tribunal has carefully considered the applicant’s circumstances and on the evidence, the Tribunal is satisfied that his circumstances as accepted by the Tribunal and for the reasons explained do not mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department - whether the applicant has been truthful and cooperative in their dealings with the department.

28. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some weight in favour of the applicant but this does not mean that the visa should not be cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

29. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether there are mandatory legal consequences to a cancellation decision

30. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

31. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. 

    Any other relevant matters raised by the applicant

32. There are no other matters requiring consideration by the Tribunal.

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

    DECISION

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

    Antoinette Younes

    
    Senior 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.