KISSOONDOYAL (Migration)

[2017] AATA 2487

KISSOONDOYAL (Migration) [2017] AATA 2487 (23 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AVINASH KISSOONDOYAL

CASE NUMBER:  1615233

DIBP REFERENCE(S):  BCC2016/2877717

MEMBER:Antoinette Younes

DATE:23 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 October 2017 at 10:11am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in registered course – Significant period of noncompliance - Compassionate circumstances – Death of parents – Noncompliance not outweighed by circumstances

LEGISLATION

Migration Act 1958, ss 116, 359AA

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 19 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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 had breached 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 18 October 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 19 September 2016, the applicant had not been enrolled in a registered course since 27 March 2016.

10. The delegate’s decision record further indicates that following the issuance of the notice of intention to consider cancellation, the applicant obtained two confirmation of enrolments (CoE) for a diploma of business administration course commencing on 26 September 2016, and an advanced diploma of business course commencing on 10 July 2017. In accordance with s.359AA, the Tribunal discussed with the applicant information available in PRISMS indicating that his enrolments in those two courses were cancelled for non-commencement of studies, and consequently it appears that it is correct that he has not been enrolled in a registered course which means that he has breached condition 8202. The Tribunal further advised that PRISMS records indicate that although since his arrival in Australia in 2010, he has completed four courses, four course enrolments have been cancelled for non-commencement of studies, deferment/suspension – compassionate or compelling circumstances, change to CoE/student details and non-payment of fees suggesting that he has had difficulties in achieving his study goals. The applicant agreed with the correctness of this information and provided explanations as discussed below.

11. On the evidence before it, the Tribunal finds that prior to the cancellation of the visa and for about five months, the applicant was not enrolled in a registered course. Although the applicant subsequent to the issuance of the notice of intention to consider cancellation obtained two CoEs, both were cancelled for non-commencement studies. The evidence before the Tribunal and the Tribunal finds that the applicant has not complied with condition 8202(2) and it follows that the ground for cancellation under s.116(1)(b) arises.

    Consideration of the discretion to cancel the visa

12. 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.

13. 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

14. 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. The Tribunal is satisfied that the applicant has completed four courses since his arrival in Australia in 2010 but the evidence shows that the applicant has had difficulties in achieving his study goals or the objectives of the visa which he was granted.

15. 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 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

16. Apart from non-compliance with condition 8202, there is no evidence before the Tribunal that the applicant has not complied with other visa conditions. The Tribunal gives this aspect some weight however the Tribunal considers the non-compliance with condition 8202 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

17. In submissions responding to the notice of intention to consider cancellation and to the Tribunal, the representative noted that if the applicant’s visa were to be cancelled, the applicant could face an emotional setback and his dreams to make a career to support himself and his elder brother in Mauritius would be shattered. The applicant would get a bad name in society as a result of the visa cancellation which would also impact his family and social standing. Mauritius is a low risk country in terms of student visas which is due to the genuineness displayed by applicants from Mauritius. The applicant would like to maintain his country’s reputation and does not wish to cause any hardship to any future applicant from Mauritius. The applicant regrets what has happened and promises to study as a genuine student.

18. In the course of the hearing, the applicant gave evidence that he wants to complete his studies and return home holding his head up. He said he is in a relationship with a female in Mauritius and they planned to marry but her father would like the applicant “to do something with himself”. He said since the death of his parents, the family is no longer close.

19. In oral submissions to the Tribunal, the representative referred to the applicant’s case being special and that the deaths of his parents had had a serious adverse impact on the applicant. The advisor noted the rituals of death in Mauritius are different and ongoing. The representative reiterated comments that the applicant does not want to cause any adverse impact to Mauritius visa applicants. He stated that the applicant has made genuine attempts but he has faced a number of events that had a domino impact.

20. The Tribunal acknowledges that the applicant came to Australia to study and he has completed four courses. The Tribunal accepts as plausible that if the visa were to be cancelled, there could be a degree of personal and societal impact, including personal disappointment and negative perceptions by members of his community. The Tribunal has given this aspect some weight as well as the applicant’s claims that he does not want to impact the good reputation of his country and that his potential father-in-law would be concerned about the cancellation.

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. The Tribunal has carefully considered those aspects of the applicant’s case and has assigned proportionate weight. However, 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. In submissions responding to the notice of intention to consider cancellation and in support of the application for review, the applicant’s representative provided background information about the applicant’s study history and the following details:

    a.The applicant’s parents died in 2013 and 2014 and he had a conflict with his elder brother who lives in Sydney and with whom the applicant lived until 2015. The deaths of the applicant’s parents were devastating to him. The applicant have returned home (Mauritius) for a religious ceremony. There were difficulties amongst the siblings.

    b.The applicant’s employer supported the applicant. The employer is an Australian citizen and he has a small family with two children. The employer considered the applicant like his own child and the employer’s children have become emotionally attached to the applicant since the birth. The applicant has supported the employer’s family. The applicant’s relationship with his employer was strong and assisted the applicant in overcoming difficulties in his life.

    c.The applicant is thankful to the Australian authorities and his education provider in understanding his situation and providing support during tough times. The last three years have seen unusual circumstances faced by the applicant.

    d.The applicant visited his education provider on many occasions as well as other consultants to discuss his case. The representative has had a discussion with one of previous trainers who explained their exact details and indicated that the education provider was willing to in role the applicant.

    e.The delegate’s decision is deficient and was not made with a “rational and empathetic approach”. There were a lot of “facts which emotionally drained” the applicant and impacted on his studies. The applicant since his arrival in Australia has been enrolled in courses and has been paid fees. The letter of support (attached) from the principal of his education provider dated 9 September 2016, supported his circumstances and efforts to complete his studies and “We also want to request the AAT to gather more information as to what time the DIBP started working on the assessment of my client’s case and what time they finished assessing his case because practically we feel from a generic typing of the decision record, that much time has not been spent on this matter”.

24. In the course of the hearing, the Tribunal explained that the Tribunal will consider all relevant information but it is not relevant how long the delegate took to finalise the decision and consequently the Tribunal would not be undertaking any investigations relating to the length of time taken by the delegate.

25. The applicant gave evidence that he came to Australia in November 2010 on a subclass 572 to undertake an advanced diploma of travel tourism which he completed in two years. He stated that his father had a heart attack in 2011 and the applicant went to Mauritius to see his father who died in June 2014. His mother died in February 2013 and he felt that life was meaningless. He could not concentrate on his studies and he did not want to do much. The applicant stated that his father came to Australia in July 2013 and his father was not handling things well which impacted the applicant personally. The Tribunal asked the applicant if he sought any assistance and he stated that he saw a few doctors but he has no evidence to corroborate this claim.

26. The Tribunal referred to the documents provided in support, namely copies of the diploma of human resources management dated 15 April 2016, extract of a death entry, letter titled to whom it may concern dated 9 September 2016 from the principal of the Australian College of vocational studies, two CoEs for the diploma of business Administration and the advanced diploma of business (both of which were cancelled as discussed in the course of the hearing).

27. The Tribunal accepts that the applicant’s parents died in 2013 and 2014 and that it is natural that the applicant would have been upset by their deaths. Without corroborative evidence, the Tribunal is not satisfied that the deaths impacted on the applicant to the level that he is claiming; on the evidence before it, Tribunal is not satisfied that the deaths contributed to the non-compliance to the degree claimed by the applicant. The Tribunal has given some weight to the deaths and its natural impact on the applicant but on the evidence before it, the Tribunal is not satisfied that this means that the visa should not be cancelled. The Tribunal also accepts as plausible that there were conflicts between the siblings which caused the applicant anxiety but on the evidence before it, the Tribunal is not satisfied the level of that anxiety contributed to the non-compliance as claimed or that it means that the visa should not be cancelled.

28. The representative asked the Tribunal to look at this case compassionately and the Tribunal appreciates the significance of compassionate decision-making, however, on the evidence before it, the Tribunal is not satisfied that the applicant’s circumstances as accepted by the Tribunal, mean that the visa should not be cancelled. The evidence before the Tribunal and as discussed in the course of the hearing indicates that although the applicant has completed four courses, he has also had four enrolments cancelled for various reasons as outlined above so on balance it appears to the Tribunal that the applicant has had difficulties in achieving a study goal and meeting the objectives of the student visa. He has been in Australia for close to 7 years, a substantial period of time and in that period, the evidence indicates that he has not achieved his own study objectives, or the objectives of the student visa.

29. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to his visa. The applicant’s personal 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.

30. 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.

31. 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

32. 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

33. 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

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

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

    DECISION

36. 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.