Kapuria (Migration)

[2022] AATA 2585

Kapuria (Migration) [2022] AATA 2585 (25 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Subhamoy Kapuria

REPRESENTATIVE:  Mr Usman Ali

CASE NUMBER:  2205980

HOME AFFAIRS REFERENCE(S):          BCC2021/2332270

MEMBER:Gabrielle Cullen

DATE:25  July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 25 July 2022 at 4:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – non-completion of first course and change of subject area – difficulty with new course, cessation of study and cancellation of enrolment – COVID restrictions in Australia and prevalence in home country – mental health – significant period of non-enrolment – current enrolment – no reasons provided for studying in Australian rather than home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (2)(b), 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 April 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The Tribunal received an application for review of the delegate’s decision from the applicant on 22 April 2022. The applicant attached the Department’s Notification of Cancellation under Section 116 dated 11 April 2022 which indicates that on 5 January 2022 the Department notified and invited the applicant to comment on the intention to consider cancellation of his subclass 500 student visa, but no reply was received by the applicant.

4. The applicant appeared before the Tribunal via video on 11 July 2022 to give evidence and present arguments.

5. The applicant was represented in relation to the application for review by his registered migration agent. His representative attended the hearing.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

10. The decision record also set out that the applicant was notified of the intention to consider cancellation (NOICC) of his visa on 5 January 2022. The Tribunal is satisfied that the NOICC was validly issued.

11. The delegate found on 11 April 2022 the applicant had not been enrolled in a registered course of study since 27 November 2019. The delegate proceeded to cancel the visa on 11 April 2022.

12. As raised with the applicant at hearing via s.359AA the applicant’s Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study from 27 November 2019 when he notified cessation of studies until the date of the delegate’s decision of 11 April 2022. The Tribunal also raised with the applicant via s.359AA that movement records indicate he was the holder of a subclass 500 student visa granted on 17 March 2019 valid to 11 April 2022 in which condition 8202 applied.

13. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study  from 27 November 2019 to the date of the delegate’s decision. The applicant also did not dispute that he had not complied with condition 8202(2) of his visa.

14. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 27 November 2019 to 11 April 2022. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

15. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

17. 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’.

    Background

18. The applicant is a 24-year-old citizen of India. He first arrived in Australia on 14 Janaury 2017 on a subclass 500 student visa valid to 29 August 2018 to undertake a Diploma of Nursing which he advised at hearing he did not successfully complete. He was granted further subclass 500 visas, with the final subclass 500 visa being granted on 17 May 2019 valid to 11 April 2022 to study a Bachelor of Business from 13 March 2019 to 19 February 2022 but the PRISMS record indicates enrolment was cancelled when he notified cessation of studies on 27 November 2019.[1] A no study condition was placed on his bridging visa granted on 29 April 2022.[2]

    [1] As raised with the applicant via s.359AA at hearing.

    [2] Course study history and visa condition raised with him via s.359AA at hearing.

19. The applicant provided a submission to the Tribunal on 7 July 2022 outlining the reasons as to his lack of study during the relevant period, a COE to study a Graduate Diploma of Management (Learning) from 27 June 2022 to 29 October 2023 and evidence his father had a positive Covid test on 4 June 2021.

20. In the submission the applicant indicates that he came to Australia to study a Diploma of Nursing but when he went on placement, he realised he was not suited to nursing due to the sights and smells and watching people suffer on a daily basis. He submits he then decided to enrol in a business course and began his studies at Kaplan Business school on 13 March 2019. He indicates he completed his first trimester but could not cope during the second trimester as he studied science at school and business was new to him. He submits that he wanted to learn business to assist his father in his business, so he was becoming depressed that he had invested so much money with no satisfactory outcome from his side. He claims he was looking for an easier way and then his COE was cancelled on 27 November 2019. He claims during that time he was looking for another course and then CovId  hit, lock down occurred, and he is not very good at online classes. He submits that his family relatives in India started becoming ill with Covid and this affected his parent’s mental health and his mental health also. He claims his parents also became Covid positive and he became more depressed. He submits that because of lockdown his parents were not able to send him money and he lost his job and this resulted in his financial situation not being good. He submits he then spoke to a friend and thought he would study a Graduate Diploma of Management (Learning), he was  granted a COE  but then he was granted a bridging visa with no study rights. He submits he wants to study and finish the degree, then he will return to India and build a career there.

21. He also provided evidence at the Tribunal hearing as to why he has not been enrolled and studying from 27 November 2019 to 11 April 2022 which where relevant is outlined below.

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

22. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. The evidence from the applicant is that he first arrived in Australia on 14 Janaury 2017 on a subclass 500 student visa valid to 29 August 2018 to undertake a Diploma of Nursing. The applicant indicated at hearing that his purpose for coming to Australia was to study a Diploma of Nursing and then he wanted to study a Bachelor of Nursing. He said there was no other purpose for his travel to Australia.  The Tribunal accepts that his travel to Australia in January 2017 was for the purpose of study.

23. The evidence from the applicant indicates he did not successfully complete the Diploma of Nursing. He said at hearing and in his submission that he was unsuited for a nursing career, particularly after being sent on placements. 

24. He was granted further subclass 500 visas, with the final visa being granted on 17 May 2019 valid to 11 April 2022 to study a Bachelor of Business from 13 March 2019 to 19 February 2022 but the PRISMS record indicates enrolment was cancelled when he notified cessation of studies on 27 November 2019.[3] A no study condition was place on his bridging visa granted on 29 April 2022.[4] His evidence is that he that he now wants to stay and study and complete the Graduate Diploma of Management (Learning) which he has enrolled in from June 2022 but is unable to study due to a current no-study condition.

    [3] As raised with the applicant via s.359AA at hearing.

    [4] Course study history and visa condition raised with him via s.359AA at hearing.

25. As to why he decided to study the Bachelor of Business from March 2019, he said he wanted to show his family he is a good student and to assist and ultimately take-over his father’s business. He said he passed 2 subjects in the first trimester but had difficulty understanding the business course as he studied science at school so stopped studying that course. He confirmed he decided to cease studying the Bachelor of Business and as a result the COE was cancelled on 27 November 2019. The Tribunal asked why he had not enrolled in an easier business course at the Diploma level instead of not studying from 27 November 2019 to 11 April 2022 while the holder of a student visa. He said from 2019 he did not want to take any chances that he would not be able to complete the course. He said then Covid happened, his relatives started getting sick, including his family and then his family was not mentally well and he became mentally depressed as a result. He confirmed that he did not study due to the mental depression because of his family’s health problems and mental stress because of Covid. He said there is no proper treatment in India and he was very worried. When asked he said he did not see a medical physician or professional for his depression or mental issues. He said both his parents had Covid in 2021 and in 2020 his other relatives started to get sick. The Tribunal raised as of concern that despite his claim to be in Australia to study, he did not seek help for his mental issues which he claims prevented him studying.

26. While the Tribunal has accepted above that his travel to Australia in 2017 was for the purpose of study it does not except for the reasons outlined below that from November 2019 his stay in Australia was for the purpose of study. The Tribunal views the extended length of time he was not enrolled from November 2019 to April 2022, a period of over 2 years to undermine his claim his stay in Australia was for the purpose of study. The Tribunal is of the view if his intention was to study he would have enrolled and studied in this period.

27. In making this finding the Tribunal has considered the reasons he did not study in the relevant period. Firstly, the evidence indicates, as raised with him via s.359AA that he ceased studying the Bachelor of Business, notifying the provider which triggered the cancellation and the Tribunal does not accept, as he seems to claim in his pre-hearing submission, that his enrolment was cancelled without his notification. Secondly, the Tribunal is of the view if he was genuine in his claim to be in Australia to study and the bachelor course was too hard, he would have changed to a course in the same field at a lower level rather than not study. It does not accept his claim he did not know if he could finish the course when he had a valid visa for a further 2 years as reason he did not study at a lower level. Further, it also does not accept he was unable to study  due to the mental issues he faced as a result of his family having Covid and because of their mental stress with the Covid situation in India. While the Tribunal accepts that there were events that occurred outside the applicant’s control, such as Covid and his family catching Covid in India,  it is not satisfied that the applicant demonstrated that his emotional and mental response to these events left him unable to study and that his failure to maintain enrolment was as a result of these events. It is of the view that if the mental stress he faced was to the extent that he could not study he would have sought medical or professional help, which the evidence indicates he did not. Finally, it does not accept he was unable to study as he had online issues and is of the view if his purpose was to study in Australia he would have continued to study online in the relevant period. Despite his current enrolment in a  Graduate Diploma of Management (Learning) the Tribunal is not satisfied that his stay in Australia from the time of his non-enrolment to date is for the purpose of study.

28. As to why there is a compelling need for him to stay in Australia, he referred to now being enrolled in the Graduate Diploma of Management (Learning). When asked why he could not study a similar course in India he said in Australia a person receives a different perspective which will give him more information and a wider range of information. The Tribunal raised with him that his evidence appeared somewhat vague as to why he needs to stay and study in Australia and he said he studied science at school, and he has no idea about business and in Australia he will learn about business from a different perspective whereas in India there is only one way and he wants to learn a range of perspectives. The Tribunal is of the view if there is a compelling need for him to stay and study the Graduate Diploma of Learning course, he would have been able to provide more detailed evidence as to why. It dos not accept learning different perspectives represents a compelling need.

29. The Tribunal has considered the applicant’s evidence however, on the material before it, the Tribunal is not satisfied that the applicant has a compelling need to travel and remain in Australia.

30. The Tribunal gives this this discretionary factor no weight in favour of the applicant.

    The extent of compliance with visa conditions

31. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 27 November 2019 to 11 April 2022. The Tribunal considers this period of 2 years and 4 months to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

32. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his visa.

    Although there is no other evidence of non-compliance, considering the lengthy period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, the Tribunal gives this discretionary factor little weight in favour of the applicant.

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

33. At hearing the applicant referred to the shame that will have to be endured by his family  if he returns without a qualification. He said being the first child they have very high hopes for him and he wants to succeed for  them

34. When asked why he could not study in India as there are many courses available to him there, he said he could but he wants to stay and study here so he can obtain a degree from Australia so he can obtain a job in Australia and return to India with a degree for his family.

35. As set out above, the Tribunal is satisfied that the applicant still has study options available to him in his home country. While it accepts there is a degree of hardship to the applicant  and his family as to his lack of obtaining Australian qualifications and learning different perspectives than that provided by studying in India on the evidence before it the Tribunal gives such disappointment and shame for him and his family low weight in favour of the applicant.

36. The Tribunal gives this consideration low weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

37. In his evidence the applicant has advanced several matters that impacted on his ability to study. He has said he was suffering mental stress due to the Covid situation in his home country, his parents and relatives contacting Covid and their mental stress and as a result did not attend the school rather stayed at home. However, as raised with him, the Tribunal has difficulty accepting this mental stress affected his ability to study when there is no evidence he ever sought medical help. The Tribunal is of the view if he was so mentally affected he could not study, he would have sought help as he has claimed he was in Australia to study.

38. Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that the applicant was impacted by the Covid situation in his home country but not to the extent claimed which led him to be unable to study for over 2 years period from 27 November 2017 to 11 April 2022. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa. Therefore, the Tribunal only attributes them low weight in favour of the applicant.

    Past and present behaviour of the visa holder toward the Department

39. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be any consequential cancellations under s.140

40. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

    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

41. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

42. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

1. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12. However, those are also intended and legitimate consequences of cancellation.

2. The Tribunal gives this consideration neutral weight.

   Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

3. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.

4. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

5. The Tribunal gives this consideration neutral weight.

   Any other relevant matter

6. No other relevant information has been raised by the applicant

7. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, the Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, that the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

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

   DECISION

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

   Gabrielle Cullen
   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.