Kuldeep Chand (Migration)

[2019] AATA 6715

Kuldeep Chand (Migration) [2019] AATA 6715 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kuldeep Chand

CASE NUMBER:  1822857

HOME AFFAIRS REFERENCE(S):          BCC2018/726848

MEMBER:Michael Biviano

DATE:26 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 September 2019 at 5:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of travel and stay – significant period of non-enrolment – vicissitudes of life – passing of family members – financial stress – responsibility to maintain enrolment – 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 3 August 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Student (Temporary) (Class TU) Vocational Education & Training Sector (Subclass 572) 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 been enrolled in a registered course of study from 3 August 2017 and he was not compliant with condition 8202 of the visa. The Delegate went on to consider the factors in favour of cancellation outweighed those against cancellation. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments. Mr Krunal Gajjar was also present at the hearing and gave evidence in support of the applicant.

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 from 3 August 2017.

9. The decision record of the Delegate of the Department of Home Affairs dated 3 August 2018 which was provided to the Tribunal by the applicant, confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) (Subclass 572) visa which was granted on 6 September 2016 and sets out the reasons for the cancellation (Decision Record).

10. The applicant gave evidence that he had arrived in Australia on 25 May 2012. The applicant came with his then wife, but he was a dependant pursuant to her Student (Temporary) (Class TU) (Subclass 572) visa. They have since divorced.

11. He gave evidence that after the divorce he applied for his own Student (Temporary) (Class TU) (Subclass 572) visa and proceeded to study here in Australia.

12. The applicant gave evidence at the hearing and tendered documents to the Tribunal confirming that he has obtained the following qualifications:

    a.Certificate IV in Business from Australian Education Academy Pty Ltd which he completed on 31 May 2013;

    b.Advanced Diploma of Business from Australian Education Academy Pty Ltd dated 6 June 2016;

    c.Diploma of Business from Australian Education Academy Pty Ltd dated 6 June 2016; and

    d.Diploma of Management from Australian Education Academy Pty Ltd dated 6 June 2016.

13. The applicant gave evidence that in or about September 2016 he enrolled in a Diploma of Marketing & Communication at Australian Study Link Institute (ASLI). In addition to the Diploma course, the applicant had also enrolled to undertake the Advanced Diploma of Marketing & Communication at ASLI once he had completed the Diploma, which would result in the applicant undertaking a total of two years of study to complete those courses.

14. The applicant gave evidence that in or about early 2017, he had completed the first eight units of the twelve units required for the Diploma in Marketing & Communication, when he was informed that his younger brother who was his sponsor and had provided funds for his tuition, had passed away.

15. Upon the applicant receiving notification from home of the death of his younger brother, the applicant did nothing at first and then after a month he returned to India and stayed there for a period of 45 days to visit his family. It appears that visit took place with the applicant returning to India on 4 March 2017 and arriving back in Australia on 20 April 2017. In addition to visiting his family, during that visit he remarried and he gave evidence that he married on 11 April 2017, although the Marriage Certificate that the applicant produced to the Tribunal confirms that the date of marriage was 11 March 2017.

16. The applicant gave evidence that whilst in India he sought to locate future sponsors to enable him to complete his studies back in Australia.

17. The applicant in an email to the Department dated 2 May 2018, in response to the Department’s notice of intention to consider cancellation (NOICC) of the student visa dated 24 April 2018, stated that he went home to find someone to sponsor him and help him finish his studies, but he was unable to find anyone and his parents were not in a financial position to help him. Notwithstanding his financial problems, he decided to return to Australia to negotiate a resolution with the college and the immigration department. He claimed that he received no helpful information and arranged for money to be sent from his references. The response further stated that he did not receive enough money to pay his tuition fees and started feeling stressed and under pressure and mentally stressed.

18. However at the hearing the applicant gave evidence that on his return to Australia he received calls from the College asking for payment of fees and he was late in relation to payment of tuition fees. The applicant gave evidence that he had in fact paid $2,000 in 2017 to the College in fees in arrears to enable him to continue studying. The applicant was given an opportunity to file documents with the Tribunal after the hearing regarding the payment of tuition fees. He presented tax invoices from ASLI and documentation confirming that he made a payment on 11 May 2017 of $1,000 and a further receipt of payment of $500 to ASLI in 2017.

19. The applicant gave evidence that he stopped attending College in or about May or June 2017 and at that time he continued to owe money to the College for his tuition fees. He gave evidence that he was told by the College that unless he paid his tuition fees he would be unable to come to classes and his enrolment would be at an end.

20. The applicant gave evidence that he had made numerous approaches to ASLI College to remain enrolled or re-enrol in the course and claims that he had paid some $3,000 to $4,000 in tuition fees to be re-enrolled. It is appears from tax invoices from ASLI and the receipts provided by the applicant that:-

    a.The tuition fees for the Diploma of Marketing & Communication were $6,000 contained in an invoice dated 20 June 2016 and the entire amount was payable on 30 June 2017;

    b.The applicant produced three further tax invoices from ASLI with the same dates confirming that payment had been made as the invoices show balances of $4,000, $3,000 and $2,000 but the dates of those balances are unclear;

    c.The receipts confirm that the applicant made a payment of $500 at a date in 2017, which appears to have been made when the debt was $3,000 and a payment of $1,000 on 11 May 2017;

    d.The documents confirm that the applicant had paid at least $4,000 of $6,000 in tuition fees to be paid, but they do not show the payments of $3,000 to $4,000 claimed by the applicant to be re-enrolled; and

    e.Based on the documents there would have been a shortfall as at 30 June 2017 and a debt owing to ASLI for tuition fees.

21. The applicant gave evidence that in or about May or June 2017 he was not working, he was living with his sister who resides in Melbourne and who is a permanent resident, and he was trying to work out what to do with his future. He claims that he was seeking to gain sponsorship from abroad but was unsuccessful in doing so.

22. However during the hearing he gave conflicting evidence. The applicant was married on 11 April 2017 and he confirmed that at around the time of getting married his father-in-law agreed to sponsor him to continue his education in Australia.

23. Despite the father-in-law’s approval for sponsorship the applicant was unable to hold his enrolment at ASLI and his enrolment in the course was cancelled on 3 August 2017.

24. The Tribunal questioned the applicant as to what he did to get enrolled during the period from 3 August 2017 to the cancellation of his visa on 3 August 2018. The applicant was unable to give a response. Despite numerous opportunities to give evidence on this issue all he could say was that he had no idea as to what attempts he had made to get enrolled in a course during that time.

25. The applicant readily accepted that he was not enrolled in a registered course from 3 August 2017 to 3 August 2018.

26. In the circumstances the Tribunal finds that the applicant was not enrolled in a registered course of study from 3 August 2017 up until his visa was cancelled on 3 August 2018.

27. Accordingly the applicant has not complied with condition 8202(2) of his visa. As this was a condition which attached to his visa the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

28. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

29. The applicant came to Australia as a dependant of his former wife who had come to Australia to study.

30. The applicant has, since being in Australia, studied and completed a Certificate, two Diplomas and an Advanced Diploma. As discussed above he was unable to successfully complete the Diploma of Marketing & Communication and he did not commence the Advanced Diploma of Marketing & Communication. The applicant’s visa was cancelled because he ceased studying the Diploma of Marketing & Communication because he was unable to meet the financial obligations associated with his tuition and he ceased his studies. However such evidence is inconsistent with the applicant’s evidence that around the time he married in April 2017, his father-in-law agreed to sponsor him and pay for his tuition fees.

31. On the evidence before the Tribunal the applicant was not enrolled from 3 August 2017 to 3 August 2018 when his visa was cancelled, which is a long period of time not to be studying in Australia, which creates doubts as to whether the applicant travelled and stayed in Australia for the purposes of study.

32. The applicant gave evidence that if his visa cancellation is set aside, he intends studying an automotive course in Australia for a period of 18 months before returning home to India to work as an automotive mechanic. However the applicant was unable to give details of precisely which courses he was intending to study or at which educational institution. Nevertheless the applicant gave a timeframe that he would intend to return home after studying a further 18 months in Australia. The fact that the applicant has not decided what courses he intends studying and at which institute also leaves open the question as to whether the applicant does intend to study in the future.

33. Having regard to the applicant’s evidence and his conduct in Australia including the obtaining of the qualifications he has completed, the Tribunal accepts that the applicant has stayed in Australia with the intention of studying whilst in Australia but given his conduct as set out above, the Tribunal gives this factor only marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

34. The applicant was not enrolled in a course of study from 3 August 2017 until the cancellation of the visa on 3 August 2018, being a period of twelve months which is a long period of time. Therefore the applicant has not complied with condition 8202(2) for a long period of time. The non-compliance with condition 8202(2) for such a long duration of time may weigh towards the cancelling of the visa unless the Tribunal accepts the reasons for his non-enrolment.

35. The applicant in evidence gave the reason that he was not enrolled because of the death of his sponsor and the inability to pay his tuition fees at ASLI to complete the Diploma of Marketing & Communication. The Tribunal does not find that reason compelling and not convincing as to why he was not enrolled in a course of study based on his evidence as he had obtained a substitute sponsor being his father-in-law in or around April 2017 and he had not taken any steps to re-enrol in any courses from the date of the cancellation of his enrolment at ASLI on 3 August 2017.

36. The applicant’s response to the NOICC dated 2 May 2018, raises issues that the applicant was stressed about his family condition and finances, and it appears that is used as an explanation for the applicant’s non-enrolment. The applicant has provided scant medical evidence about his mental state regarding his condition at the time his enrolment in the Diploma course was cancelled on 3 August 2017 until the cancellation of his visa on 3 August 2018. The applicant produced a letter from Dr Glenn A. Pereira dated 2 June 2019, confirming that the applicant has been under stress and suffering from anxiety and he attended to consult with the doctor on 3 March 2019 and the applicant had some family matters which are contributing to his stress. The medical report did not address what was his medical condition in 2017 and 2018 and does not substantiate whether his condition was so severe that he was unable to complete his studies or that he would have not been able to enrol in a course of study.

37. While the Tribunal accepts that the applicant may have been impacted by the death of his younger brother and the stress of his financial situation, it is not satisfied on the material before the Tribunal that it provides a reason for not being enrolled in a course of study for the duration of one year.

38. The Tribunal finds that the applicant was ultimately responsible for not being enrolled and the long period of non-enrolment for which the applicant provided no evidence of what he did during his time. By reason of the unexplained period of the enrolment and the duration of the breach, the Tribunal gives this factor substantial weight towards the visa being cancelled.

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

39. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled. The applicant is currently residing with his sister and her three children here in Melbourne but he was unable to give evidence of any hardship that would be caused by the visa cancellation.

40. Whilst the failure to complete the Diploma of Marketing & Communication would be somewhat difficult for the applicant, the applicant gave evidence that irrespective of whether his visa remained cancelled or the cancellation of the visa is set aside, that he ultimately intends to return to India to operate an auto mechanic workshop. Whilst completing his studies in Australia may be advantageous for the applicant, the Tribunal accepts that these matters may be the consequences of the visa cancellation but they are not matters which would constitute a degree of hardship sufficient to weigh against whether the visa ought to be cancelled.

41. The Tribunal considers that this factor gives marginal weight towards the visa not being cancelled.

    Circumstances in which grounds of cancellation arose

42. The applicant gave evidence as to the circumstances that led to the cancellation as set out above. As a general rule visas should not be cancelled where the circumstances of the cancellation arose beyond the visa holder’s control.

43. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by the applicant’s reasons for his non-enrolment or satisfied that the circumstances of the cancellation arose beyond his control.

44. The applicant knew and was aware that by not paying his tuition fees and not attending and participating in class would result in his enrolment in the Diploma of Marketing & Communication being cancelled. The applicant was aware that by the non-payment of his tuition fee, the demands for payment by the College and the non-attendance at class that his course would be cancelled in or about August 2017.

45. As discussed above, the applicant claimed that the course was cancelled because he was unable to meet his tuition fees by reason of the sudden death of his sponsor. However the difficulty with the applicant’s explanation is that he gave evidence that having married his now current wife in April 2017, his father-in-law agreed to sponsor him here in Australia to study and he could have continued his course or re-enrolled in another course in mid-2017. The applicant was also questioned about his non-enrolment between August 2017 and August 2018 and what attempts he had undertaken to re-enrol and the applicant was unable to provide any details of what steps he had taken to enrol in a course of study during that time.

46. In the circumstances the Tribunal has considered the applicant’s explanations for why he was not enrolled for this long period of time and therefore being in breach of condition 8202(2) of the visa.

47. The Tribunal does not accept the circumstances regarding non-enrolment were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a long period of time. The Tribunal gives this matter very substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

48. According to the Decision Record, the applicant responded to the Department’s NOICC. Further there was no other evidence that the applicant had been uncooperative towards the Department.

49. The Tribunal gives this factor little weight towards the visa not being cancelled.

    Whether there are to be consequential cancellations under s.140

50. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this matter no weight towards the visa not being cancelled.

    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

1. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act, if he does not voluntarily depart Australia.

2. Further pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia so he would need to depart Australia and apply from overseas for most types of further visa applications. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, this will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so it is likely to prevent him from successfully being able to apply for a new visa from overseas for a period of three years if he has to depart Australia.

3. This is likely to prevent the applicant from visiting his sister and her three children who reside in Melbourne for a period of three years.

4. However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds. The applicant gave evidence that if the visa remained cancelled he would return to India and therefore there is no indication he would become unlawful or subject to detention.

5. Accordingly the Tribunal gives this factor little weight towards the visa not being cancelled.

   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

6. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to India and he did not give any reasons as to why he could not do so and he has not made any claims that relate to this consideration.

7. The applicant has his wife and child currently residing in India and they are not dependants on his visa.

8. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

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

9. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

   Any other relevant matters

10. The applicant and his support witness Mr Gajjar gave evidence that the applicant had experienced considerable difficulties and hardship in Australia in relation to meeting expenses for his courses, being emotionally distressed about his studies and loss of his brother/sponsor, and trying to complete his studies here in Australia while his family was back in India including his wife and young child. The applicant submitted these are factors relevant for consideration in determining whether the visa ought not to be cancelled.

11. The Tribunal has considered those matters and whilst it accepts that the applicant has gone through such difficulties and stress associated with study, poor financial circumstances and the loss of his younger brother and sponsor, the Tribunal finds that it has limited relevance to the visa not being cancelled.

12. In the circumstances the Tribunal considers that this factor adds little weight to the visa not being cancelled.

    Conclusion

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

    DECISION

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

    Michael Biviano
    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.