KOUSHAL (Migration)

[2021] AATA 550

KOUSHAL (Migration) [2021] AATA 550 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ISHAN KOUSHAL

CASE NUMBER:  1932992

HOME AFFAIRS REFERENCE(S):          BCC2019/3284752

MEMBER:Meredith Jackson

DATE:2 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 02 March 2021 at 2:34pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – applicant’s study record – non-commencement of studies – cessation of studies – unsatisfactory course progress – closure of education provider – friend’s death – impact on mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 13 November 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 did not comply with condition 8202 of his visa, having not maintained enrolment in a registered course of study 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.

3.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.The applicant appeared before the Tribunal on 2 March 2021 to give evidence and present arguments.

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

Case summary

6.The applicant is Ishan Koushal, aged 31, a citizen of India. He first arrived in Australia in October 2014, having been granted a student visa for the higher education sector. His visa was issued under streamlined visa processing arrangements for prospective students from certain countries, including India, who had enrolled to study a degree. The visa under review was granted to the applicant in February 2018 for the purpose of studying a Bachelor of Accounting. In June 2018, the applicant ceased studying towards the degree. On 25 November 2019 the visa was cancelled because the applicant had not maintained enrolment at the level required. This was a breach of his visa conditions. At the time of cancellation, he was studying a low-level vocational course in vehicle mechanics. The applicant has not maintained enrolment in higher education since 15 March 2019.

Issue in the case

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 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).

9.Condition 8202(2)(b) states the visa holder 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.

1. At the time of application for the visa, the applicant was enrolled in a Bachelor of Accounting, a course at level 7 of the Australian Qualifications Framework (AQF). The course start date was 15 January 2018 and the finish date was 4 December 2020. On 4 June 2018, the Confirmation of Enrolment (COE) for the course was cancelled. The reason recorded by the applicant’s college was that the applicant had notified cessation of studies.

2. On 15 March 2019, a COE was issued to the applicant for an AQF Level 3 Certificate III in Light Vehicle Mechanical Technology. The course started on 23 July 2018 and ended on 21 July 2019. On 15 March 2019 the applicant’s COE was cancelled by the provider for unsatisfactory course progress.

3. At the time of the delegate’s decision on 13 November 2019, the applicant had not maintained enrolment in an AQF level 7 course or at a higher level since ceasing to study the Bachelor of Accounting on 4 June 2018.

4. Based on evidence available to the Tribunal in the Provider Registration and International Student Management System (PRISMS) and put to the applicant in the hearing, as is examined further, below, the applicant has not maintained enrolment in a registered course of study that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted, from 4 June 2018 to the date of this decision. The Tribunal is mindful that conditions of the applicant’s bridging visa, granted at the time of cancellation of his student visa, allow no study.

5. The applicant does not dispute that he did not comply with the conditions of his student visa.

6. Taking the considerations above into account, the Tribunal finds the applicant was not enrolled in a full time registered course between 4 June 2018 and 15 March 2019 and therefore has not complied with condition 8202(2)(a).

7. As the applicant did not maintain enrolment in a registered course of study at the level required by the conditions of his visa between 4 June 2018 and 13 November 2019, the Tribunal finds the applicant has not complied with condition 8202(2)(b).

Consideration of the discretion to cancel the visa

1. 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 Tribunal finds as follows.

   Purpose of the visa holder’s travel and stay in Australia

2. The applicant applied for the visa solely for the purpose of studying in Australia in a higher education course, at level 7 of the AQF or higher. At the hearing the Tribunal discussed at length with the applicant the purpose of his travel and stay in Australia and whether he has a compelling need to remain in Australia. The applicant stated he came to Australia to study higher education because his father is a doctor and wanted his son to have a degree level qualification. He has only completed an English course, a Diploma of Management and a Diploma of Accounting and this is not enough. He needs a chance to remain in Australia to complete his automotive studies and a degree so he can start a business in India.

3. The applicant provided a copy of the delegate’s decision to the Tribunal with his review application. He made no further written submissions to the Tribunal prior to the hearing. In the hearing, however, he referred the Tribunal to his response to the Notice of Intention to Consider Cancellation (NOICC) of his visa. The Tribunal has taken the information in the response into account, along with other information in Tribunal and Department files, including the applicant’s record in the PRISMS database.

Section 359AA

1. Prior to the hearing, the Tribunal sent the applicant a copy of his enrolment record in the PRISMS database, stating in a covering letter that it may be referred to in the hearing. At the hearing, adopting the procedure in s.359AA of the Act, the Tribunal said it had certain information from PRISMS to put to the applicant. It was information that would, subject to his comments or response, be the reason or part of the reason to affirm the decision under review. The Tribunal put the information to the applicant, which was that since 4 June 2018 and until 15 March 2019, the applicant had not maintained enrolment in a course of study as required by the conditions of his student visa. Further, since 4 June 2018 he had not been enrolled in a course at the required level, which was level 7 of the AQF, and that was also a condition of his student visa. The Tribunal said the applicant could request additional time to consider the information. The applicant did not request additional time and chose to comment immediately after the information was put to him and stated that he understood it.

2. The applicant confirmed his written advice to the Department that after he completed his Diploma of Management, he was looking forward to a Bachelor of Business but the college at which he was enrolled, AIPE College, closed down on 31 October 2016. He enrolled at SCSB College in a Diploma of Accounting on the advice of a migration agent, understanding that it would lead to a Bachelor of Accounting at Group Colleges Australia starting in January 2018. He then heard rumours that SCSB College was to close, and while his agent discounted those rumours, he decided to study a Diploma of Automotive (Technology) in Adelaide, where things were cheaper and life was easier, and chose it because there were promising automotive opportunities in India. He subsequently moved to Adelaide with a friend.

3. In May 2019, his friend, Tarnjeet Sekhon, with whom he had travelled since arrival, including to Adelaide, and with whom he had studied, became ill. His friend returned to India and passed away. The applicant became depressed and, having ceased studying in March 2019, went back to India, then returned to Adelaide when his health improved. By the time the NOICC arrived in October 2019, he was studying well in his automotive course. He had completed eight subjects and was nearly finished.

4. He wants a chance to continue his studies and undertake a degree. He has a cousin from whom he could borrow money to fund the degree.

5. The Tribunal has considered the applicant’s purpose of travel to, and stay in, Australia. It has engaged at length with the applicant’s study record and considered the applicant’s claims that he was diverted by a college closure early in his stay, and then, in relation to the visa under review, by the death of a close friend that disrupted his mental health. The Tribunal after taking all the circumstances of his study record into account, concludes that the applicant knew he needed to maintain enrolment as a degree student, but did not apply himself effectively to that purpose. The timing of his friend’s death in May 2019 is well after he had ceased studying in a number of courses which his record shows were for non-commencement of studies, cessation of studies, and unsatisfactory course progress. There is one instance of deferment for compassionate or compelling circumstances in 2016, but this does not explain the reasons for the applicant’s failure to study at level and maintain enrolment. The Tribunal weighs the applicant’s study record against him.

Extent of compliance with visa conditions

1. The applicant did not comply with condition 8202 of his Student (Subclass 500) visa as recorded earlier in these reasons.

2. The applicant is currently the holder of a ​Bridging E (Subclass 050) visa. It is subject to conditions including condition 8207 (no study). The applicant claims and the Tribunal accepts that he is not currently enrolled in a registered course or any course of study or training in Australia. The visa is also subject to condition 8402 (report as directed) and 8506 (notify new address). The applicant stated at hearing that he has complied with all conditions of the visa. He claimed that while it prevents study, in March 2020 he was given permission to work, and now he works for a transport company.

3. The Tribunal has considered that the applicant did not comply with a key condition of his visa, and despite having no other evidence before it of any failure to comply with other visa conditions, weighs the applicant’s record, on balance, against him.

The degree of hardship that may be caused by cancellation

1. The applicant stated at the hearing that he fears his father, who is a doctor, will be very disappointed in him. He had studied pharmacy before he left India, and his father had always wanted him to get a degree. If allowed to stay he could get a good degree. If he goes back to India now, he will have no prospects. He was depending on automotive study to set things on track, and he is really interested in it. He has a lot of skills now and can do repairs and he hopes to start a business in India. Without qualifications he cannot do that. It will be hard in India without a degree, he will not be able to do anything, and his parents are not going to be happy with him. A diploma of accounting will not be enough, he cannot start a business with that alone. I can service cars and do complex mechanical tasks, but skill is not enough, they will want certificates. Nowadays they need written evidence of study. If he can get another chance, there will be no repeat of his mistakes.

2. The Tribunal accepts that the applicant will suffer hardship in the form of familial and possibly economic difficulties if he does not complete his studies. However the Tribunal notes that the applicant was given many opportunities through his successive enrolments to continue his studies and he confirmed at hearing that he was always aware that they were required to be at degree level. Nonetheless he is candid in acknowledging his failures and does not dispute that he has not successfully undertaken a course at Level 7 or above since he first arrived in Australia in 2014. He vows, if given a chance, not to make the same mistakes twice. The Tribunal notes the applicant’s statements that he has gained skills in Australia, and that he has completed two vocational diplomas, which may mean he is in a position to apply the skills gained and experience had in Australia by continuing his studies in his home country or seeking employment in the automotive industry.

3. On balance, the Tribunal affords these considerations some weight in the applicant’s favour.

Circumstances in which grounds for cancellation arose.

1. The applicant claims that the closure of his initial education provider was unexpected and shocked him. He does not claim that this event was the sole reason why his studies were disrupted for so long. He accepts that he, not his agent or anyone else, made the decision to change from degree study to vocational study. He claims that it was going well until his friend’s death severely and negatively affected him, which is a claim not entirely supported by the timings on his record. He states however that he returned to Adelaide from India prior to the cancellation of his visa, with his health and ability to study restored, and he was studying effectively during the ensuing period. The applicant acknowledged at the hearing that he made mistakes and that he was aware he was expected to study at degree level. The Tribunal has considered all the circumstances in which the grounds for cancellation arose and finds the applicant created those circumstances himself. The Tribunal weighs this against him.

Past and present behaviour of the visa holder towards the department

1. The applicant has been sparse if reasonable in communicating with the department. The Tribunal notes he responded to the NOICC promptly; and, while he did not tell the Department he was changing to a vocational course, he claims that was because his agent told him that the department receives this information independently. There is no further information before the Tribunal that would indicate the applicant has not been open and cooperative with the Department. The Tribunal weighs this in his favour.

2. There are no consequential cancellations under s.140 if the visa is cancelled. The Tribunal accepts that the applicant is unmarried and has no children.

Mandatory legal consequences

1. The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the impacts of cancellation in his case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he remains onshore and will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia.

2. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately, he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore. The Tribunal affords these considerations little weight in the applicant’s favour.

Whether any of 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

1. In considering whether to exercise its discretion to cancel the applicant’s visa, policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). No information is before the Tribunal that a cancellation outcome would breach of any of Australia’s international obligations and the Tribunal affords this consideration no weight.

Conclusion

1. The Tribunal has carefully considered the applicant’s claims and weighed its considerations accordingly. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.