Khaira (Migration)

[2020] AATA 1343

Khaira (Migration) [2020] AATA 1343 (3 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arvinder Singh Khaira

CASE NUMBER:  1931451

HOME AFFAIRS REFERENCE(S):          BCC2019/3261834

MEMBER:Amanda Upton

DATE:3 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 03 February 2020 at 10:16am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a higher level registered course ceased – three enrolments cancelled due to non-payment of fees – education provider denied a deferral – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 31 October 2019 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 (the Act).

2.The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 in that he had not maintained enrolment in a registered course. 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 30 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ambica SINGH.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 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).

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

9.At the commencement of the hearing the Tribunal confirmed with the applicant and the agent appearing with the applicant, Mr SHAKIL, that they were of the view that all the documents previously submitted to the Department had been consequently received by the Tribunal. This was clarified with them as correspondence sent by Mr SHAKIL to the Tribunal on 29 January 2020 indicated that he was of the understanding that the Tribunal was in possession of the written file that the Department had been in possession of  concerning the applicant.

10.It was confirmed with the applicant and Mr SHAKIL that they were aware of the following documents and these documents were those that they expected the Tribunal to have in its possession in considering the application;

·The applicant’s response to the NOICC

·Letter from Ms Ambica SINGH

·   A medical certificate concerning the applicant dated 13 July 2018 and;

·   An email chain between the applicant and Wentworth institute concerning a request for a course deferral.

11.The applicant confirmed that he had received the decision of the Delegate in relation to the visa cancellation and that he had understood the decision.

12.The applicant first arrived in Australia in September 2014. He completed a Certificate IV in Business Management, and a Diploma and Advanced Diploma of Business Management. He completed this course in March 2018.

13.According to the decision of the delegate, the applicant further enrolled in a Bachelor of Business in March 2018. He did not complete this course and his enrolment was cancelled on 1 August 2018 for non-payment of fee. He then enrolled in a further Bachelor of Business on 22 December 2018. This enrolment was cancelled on 21 February 2019 for non-payment of fee. The applicant then obtained enrolment in a Diploma of Leadership and Management on 22 March 2019. This enrolment was cancelled on 26 August 2019 due to non-payment of fee. The applicant then obtained a further enrolment in the same Diploma of Leadership and Management course on 19 September 2019. The applicant indicated that this enrolment was cancelled by the education provider in October 2019 after the applicant’s visa was cancelled.

14.On the basis of the above, the applicant was not enrolled in a registered course between 26 August 2019 and 22 September 2019, a period of 22 days.

15.On the evidence before the Tribunal, 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 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. 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’.

The purpose of the applicant’s travel and stay in Australia.

17.The applicant’s purpose of travel to Australia was to study and he maintains that this remains to be his purpose of staying. The Tribunal notes that the applicant has added motive to want to stay in Australia in that his partner currently resides in Australia on a study visa. The Tribunal accepts however that the applicant’s purpose of travel to and stay in Australia remains primarily to study.

The extent of compliance with visa conditions

18.The applicant was not enrolled in a registered course for a period of 22 days. The Tribunal accepts that this is not a significant period of time however when balanced against the circumstances under which the cancellation arose, gives this factor little weight in favour of the applicant.

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

19.The applicant indicated that he really wished to pursue his studies and that his family would be disappointed in him if he could not continue, as would he. It is accepted that emotionally this may be difficult however the Tribunal does not consider it to be significant hardship.

20.The applicant also indicated that he has invested a lot of money to enable him to study in Australia and to not be able to finish his studies would be tough.

21.The Tribunal accepts that a cancellation of a visa results in opportunities lost and disappointment. It also accepts that there will be a financial loss for the applicant and a delay in achieving what they may have wanted to achieve in Australia.  However, it is expected that there will be consequences to a cancellation. As such, the Tribunal gives minimal weight to these considerations outlined by the applicant.

22.The Tribunal accepts that if the applicant’s visa is to be cancelled he would experience some emotional hardship being away from his partner however the Tribunal also considers that the applicant’s partner is in Australia pursuant to a student visa and would be expected to ultimately return to India. The Tribunal considers that if the applicant’s visa was to be cancelled he may have difficulty in future obtaining any further visa which could impact on his ability to visit his partner whilst she remains in Australia. The Tribunal gives this consideration some weight in favour of not cancelling the visa.

Circumstances in which ground of cancellation arose.

23.Whilst the period of time that the applicant was not enrolled in a registered course relates to a period in August/September 2019, it is necessary in considering the circumstances in which the ground of cancellation arose, to also consider the applicant’s history of course enrolment.

24.The applicant has previously completed courses and has more recently had 3 enrolments cancelled due to non-payment of fees.

25.In relation to the first cancellation, Bachelor of Business commencing in March 2018. The applicant has provided a medical certificate dated 13 July 2018. The certificate states that the applicant was unfit for study load/work. The certificate does not provide a time frame for this and appears to relate to the applicant feeling general malaise/depression and homesickness. There is no specific diagnosis of any condition. The applicant did not produce any further medical evidence of his health.

26.The applicant also produced an email chain of his correspondence with the education provider seeking a deferral of studies consequent to his medical condition. The applicant told the Tribunal that he had spoken with an education agent in relation to the deferral and that agent was to apply for the deferral however did not do so.

27.The Tribunal accepts that this may have been the case however notes that the email chain contains direct communication between the applicant and the education provider. A request was made by the education provider for further information on 12 July although it is unclear whether this request was sent directly to the applicant or the agent. Given this the Tribunal affords the applicant the benefit of the doubt and considers that there may have been a communication issue with respect to the deferral that was not the fault of the applicant but rather the education agent.

28.With respect to the second cancellation of the Bachelor of Business with an enrolment date of 22 December 2018 and cancelled due to non-payment of fee, the applicant claims that he was not sent a reminder to prompt him to pay the fee when it was due. This may have been the case however the applicant conceded that he knew that he would have to pay the fee and forgot.

29.After the applicant became aware that the enrolment was cancelled the applicant attempted to obtain enrolment in the same course however was told that he could not do so. Consequently he obtained enrolment in a Diploma of Leadership and Management (22 March 2019) at a different education provider.

30.The applicant again on, 26 August 2019 had his enrolment cancelled due to non-payment of fee. In this instance, the applicant claimed that the education provider had been unable to contact him in relation to the payment of the fee as the education agent he had used to facilitate the enrolment had not provided the correct details. Even if this is the case, the Tribunal is of the view that he applicant would have been very aware, particularly given his previous history of study and difficulty with enrolment, that he was required to pay a fee and should have known to do so without requiring reminding or prompting from the education agent or provider.

31.The Tribunal expects that a person in Australia pursuant to a study visa would know the relevant important dates of their course including commencement and due dates for fee payment and act accordingly without the need for prompting.

32.The applicant claimed that he did not remember to pay the fee in this instance as his partner, Amica SINGH with whom he lived, was very unwell, that his mental and physical health was not good and his financial position was not good.

33.The applicant did not provide any medical material with respect to his mental and physical health and did not provide further details in relation to his financial status other than to say that if he had remembered that he had to pay the fee he would have arranged to obtain money from India.

34.The applicant’s partner gave evidence in the hearing. She detailed that she had been unwell effectively since she arrived in Australia in 2017 on a spousal visa. This was because of difficulties she had at the time with her ex-husband. She is currently in Australia on a student visa. She told the Tribunal that her health was improving in February 2019 although deteriorated a little in April 2019 due to the death of her father in India.

35.When asked about her health in August 2019 she told the Tribunal that she was having heart palpitations and scratching walls, that she had seen a doctor who had advised her to see a psychologist. She had not done so as she intended to go back to India in December 2019. She did not provide any medical documentation.

36.Ms SINGH told the Tribunal that despite the difficulties described above she was still attending school and studying during this period of time.

37.The Tribunal considers that although this period of time may have been difficult for Ms SINGH and the applicant, it was not so difficult as to have prevented the applicant from remembering to fulfil his commitments in relation to the enrolment in his course. The Tribunal does not consider that the circumstances leading to his enrolments being cancelled were beyond his control.

38.Despite the fact that the period of non-enrolment was not particularly lengthy, the Tribunal considers that in the context of the history of enrolment cancellations due to non-payment of fee in circumstances where the applicant would be expected to be aware of his obligations, the circumstances under which the visa cancellation arose militate strongly against the applicant and favour the cancellation of the visa.

39.The Tribunal notes that the applicant again gained enrolment in a Bachelor of Business on the cancellation of his enrolment in the Diploma of Leadership and Management which was cancelled by the education provider when his visa was cancelled. The Tribunal affords little weight to the applicant in his continued attempts to enrol.

Past and present behaviour of the applicant towards the Department.

40.There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

41.There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

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.

42.The applicant has not made any claims that relate to this consideration and as such the Tribunal affords this factor no consideration.

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

43.The applicant has provided no relevant reasons in relation to this consideration for being unable to return to India and as such the Tribunal affords this factor no weight.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

44.This consideration is not relevant and therefore the Tribunal affords this factor no consideration.

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

DECISION

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

Amanda Upton

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.