Kaur (Migration)

[2023] AATA 4061

Kaur (Migration) [2023] AATA 4061 (29 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rajir Kaur

CASE NUMBER:  2308779

HOME AFFAIRS REFERENCE(S):          BCC2023/1799955

MEMBER:Jennifer Cripps Watts

DATE:29 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 29 November 2023 at 11:59am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – previous student visa cancelled – enrolment in a full-time course – compelling or compassionate circumstances – applicant changed courses – poor academic progress – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 116
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 May 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 March 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not meet Public Interest Criteria (PIC) 4013.

4. The applicant appeared before the Tribunal by MS-Teams audio-visual on 29 November 2023 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  At the beginning of the hearing, the applicant informed the Tribunal she did not need an interpreter.  The interpreter was kept on for the hearing in the event they were needed; they were not.  The applicant participated competently and meaningfully in the hearing in the English language. 

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant, for the purpose of satisfying cl 500.217(1), satisfies the PIC 4013. Or, if not, whether there are compelling or compassionate circumstances for waiving the requirement that the applicant meets PIC 4013.

7. Subclause 500.217(1) of Schedule 2 to the Regulations requires, among other things that an applicant satisfies PIC 4013 of Schedule 4 to the Regulations (extracted):

   4013

   (1)  If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):

   (a)the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

   (b)the Minister is satisfied that, in the particular case:

   (i)compelling circumstances that affect the interests of Australia; or

   (ii)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years after the cancellation or determination.

8. Relevantly in this case, the applicant is affected by a risk factor because on 2 April 2023 her previous student visa was cancelled under s 116 of the Act on any of the grounds listed in PIC 4013(2)(a) to (d); she did not comply with condition 8202 which, which requires the applicant to maintain enrolment in a full time course of study conducted in English.

9. At the beginning of the hearing, the applicant was asked if she had received the hearing invitation and read it.  The applicant said she had read the first few paragraphs of the invitation, but that she had not read anything about providing additional documents or evidence in support of the application.  None were provided.  The applicant was told that she would be given the opportunity to give oral evidence about any additional matters in support of her application.  For that purpose, the Tribunal explained to the applicant that essentially she needed to have compelling or compassionate reasons (as they are described in PIC 4013(1)(b) and which were read to the applicant at the hearing) that justify granting the visa.

10. The applicant was unrepresented and had not provided a written submission addressing compelling or compassionate circumstance in her case.  For these reasons, the Tribunal led the applicant through her oral evidence relating to her arrival in Australia and her study history since arriving, so as to give consideration to the applicant’s circumstances since she arrived in early 2020 holding her previous (cancelled) student visa.

11. The applicant’s study history and circumstances since her arrival holding a subclass 500 student in March 2020 are as follows.

12. The applicant was granted a subclass 500 student visa offshore on 25 February 2020 to study a Bachelor of Information Technology at Southern Cross University in Melbourne.  The applicant said she arrived in Australia just before COVID-19 lockdowns and travel restrictions were put in place.  By this time, study was online and the applicant said she struggled to adjust to the mode of study and to living in a different country and she became depressed.  She did her first semester, completed two subjects and failed one.  The applicant did not continue her Bachelor of Information Technology and instead, in 2021, enrolled in a VET course, Certificate III in Commercial Cookery,  The applicant said that she studied for the academic year, about 7-9 months, and completed all but two or three of her assignments.

13. The applicant said that throughout this 2020-2021 period, she had become depressed and admitted she had made mistakes relating to her study obligations.  Her father was sick and there were hospital bills to pay which meant that there was a shortage of funds for her parents to support her study costs in Australia.  The applicant said the reason she changed from a Bachelor of Information Technology to a VET course was because the bachelor degree was too expensive.

14. The applicant was asked if she understood that it is a condition for the holder of a student visa that they maintain enrolment in a full time course of study and she replied, ‘no’.  The applicant was asked what she thought the conditions were for the holder of a student visa and she said, ‘to study’.  The Tribunal is satisfied that the applicant understands that being a genuine student, and being enrolled in a course of study, are requirements for a student visa.

15. The applicant’s study history over the last three and a half years, even factoring in that classes were mainly online during COVID-19 lockdowns and for other reasons the applicant has given, has in the Tribunal’s view been poor.  The applicant came to Australia intending to study a Bachelor of IT and only completed one semester before changing to a VET course, a Certificate III in Commercial Cookery; she did not complete this course either.  Then, for nearly two years, 2022 and 2023, the applicant has not studied at all, on the oral evidence she gave at the Tribunal hearing.  It is acknowledged that the applicant gave evidence that while she has held a bridging visa she has had ‘no study’ and ‘no work’ conditions imposed.  The applicant said she had spoken to someone at Home Affairs who told her she could apply for the conditions to be lifted, but that she had not applied yet.

16. The PIC 4013 waiver options were explained again to the applicant towards the end of the hearing.  The applicant was asked if she had any relatives in Australia and said, ‘no’.  It was pointed out to the applicant that it did not appear there were circumstances that would affect any Australian citizens, permanent residents or eligible New Zealand citizens and the applicant agreed that was the case.  In the alternative, the applicant was invited to give oral evidence in support of there being compelling circumstances in the interest of Australia that would justify granting the visa.  The applicant responded, in summary, by saying that she thinks she deserves another chance and that she just wants her study rights.

17. There are reasons, which have been considered and discussed above, why the applicant has an unimpressive study history in Australia, however they are not considered by the Tribunal to be compelling reasons that give rise to it being in the interest of Australia to waive the PIC 4013 criteria.

18. For these reasons, the Tribunal finds that the applicant does not meet PIC 4013 of Schedule 4 to the Regulations.

19. Accordingly, the applicant does not meet cl 500.217 of Schedule 2 to the Regulations.

    Non-Disclosure Certificate (‘NDC’) issued under s 357A of the Act

20. At the hearing he applicant was informed that there is a NDC on the Department file and told that it relates to her Department student visa cancellation file.  The applicant was told that she had confirmed in her oral evidence that her previous student visa had been cancelled and that brief mention was made of the cancellation in the primary decision record, a copy of which was provided to the Tribunal by the applicant.  The applicant was informed that the cancellation of her previous visa is not in dispute and that the information covered by the NDC, other than relating to the fact that her previous visa was cancelled, related to maintaining privacy of Department officers and systems relating to the cancellation.  In those circumstances, the applicant was told that the Tribunal was not relying on the information specified in the NDC.

21. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Jennifer Cripps Watts
    Senior Member