Kuldeep (Migration)

[2021] AATA 2688

Kuldeep (Migration) [2021] AATA 2688 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kuldeep

CASE NUMBER:  2006388

HOME AFFAIRS REFERENCE(S):          BCC2019/5389251

MEMBER:Penelope Hunter

DATE:21 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2021 at 2:45pm

CATCHWORDS
MIGRATION – cancellation – Subclass 500 (Student) visa – not enrolled in registered course for 15 months – illness – no medical evidence – desire to change enrolment to another city – claimed actions of various service providers – failure to maintain enrolment within applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140

Migration Regulations 1994, Schedule 8, condition 8202, Public Interest Criterion 2013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 March 2020 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant did not comply with condition 8202, which requires the visa holder (hereinafter referred to as the applicant) to be enrolled 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 15 June 2021 to give evidence and present arguments.  

4. 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

5. 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 (Cth) (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?

6. 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);

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b);

   ·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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course: condition 8202(2)(a).

8. With his application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record. In their decision the delegate refers to the applicant’s Provider Registration and International Student Management System (PRISMS) records, which had been obtained at the time of the decision. The PRISMS records contained information that the applicant had not been enrolled in a full-time registered course of study since 11 December 2018.

9. The decision record also sets out that the applicant was notified of the intention to consider cancellation (NOICC) of his visa in writing on 26 February 2020. The Tribunal is satisfied that the NOICC was validly issued.

10. The applicant was invited to provide submissions in response to the NOICC. In his email response, dated 11 March 2020, the applicant did not dispute that he had not been enrolled since December 2018. The applicant claimed that he had missed his enrolment due to his bad health and had applied for a release from the University to move to Melbourne. He did not get a release and had tried to apply for an enrolment in a master’s course but no one would give him a Confirmation of Enrolment (CoE) It was his dream to complete a master’s from an Australian university, and he had obtained a Diploma of Business CoE at Australian Harbour International College. His consultant had given him the suggestion that after completing the advanced diploma he would be able to pursue study for a master’s.

11. The delegate considered the submissions provided by the applicant and proceeded to cancel the visa on 20 March 2020.

12. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a full-time course of study from 11 December 2018. Although the applicant claimed that he was unaware that it was a condition of his student visa that he maintain enrolment, he acknowledged that he was aware that his visa had come with conditions and confirmed that he had read the letter advising him of his visa. He did not dispute that he had not complied with condition 8202(2) of his visa.

13. The Tribunal questioned the applicant on his claims to the delegate that he had enrolled in a Diploma of Business at Australian Harbour International College, and he said that he was issued with an offer of enrolment but he claimed that when he went to enrol they would not issue him with a CoE due to the visa cancellation. He confirmed that he did not actually obtain a CoE in this course.

14. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a CoE in a registered course or a full time course of study or training from 11 December 2020 to the date of the delegate’s decision on 20 March 2020. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

15. The Tribunal is therefore satisfied that the grounds for cancellation in s 116(2)(b) exist.

    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.

17. The applicant is a 27 year old citizen of India. He applied for the visa to undertake a five week course in English for Academic Purposes and then a Master of Business Administration (MBA) with course dates from 12 November 2018 to 12 November 2020.

18. At the hearing the applicant presented to the Tribunal copies of email communication between himself and the International Admissions Team at Federation University Australia dated 3 December 2018 (3), 10 December 2019, 17 December 2019, 19 December 2019, 7 January 2020, 16 January 2020 and an email missing text dated 18 February 2020.

19. 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 the evidence presented and matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’ as follows.

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

20. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of undertaking study, particularly an MBA. The applicant’s course was to conclude in November 2020, and there is no evidence that the applicant’s intention to stay in Australia was otherwise than for this purpose.

21. The applicant completed his English course and then confirmed for the Tribunal that he was unwell when it came time to start his MBA. The Tribunal asked the applicant about his illness and he said that he felt cold in Australia as he was used to the warmth of India. He then claimed that he took some medication for his fever and then he was alright. In response to questions from the Tribunal, the applicant said that he did not seek any treatment from a doctor and he did not have any medical evidence of an illness at the time. He then intended to transfer to undertake a different course in Melbourne, but could not obtain a satisfactory response from Federation University Sydney, and before he knew it his enrolment was cancelled.

22. The applicant claimed that it was his wish to obtain an Australian master’s qualification. He had already obtained a Bachelor of Engineering in India and wished to build on that qualification so that he could obtain employment with multinational companies in India. He acknowledged that he could obtain a master’s qualification in India although he thought that it may be more challenging to obtain enrolment as now he had a study gap of several years.

23. Other than his English for Academic Purposes course completed in October 2018, the applicant has not undertaken any other study in a registered course in Australia. He claimed that he was unsuccessful obtaining enrolment in a master’s course at a Melbourne institution and that Australian Harbour International College had declined to enrol him around March 2020 as his visa was cancelled. He has no current enrolment and told the Tribunal that if his student visa was restored he wished to undertake a Master of Engineering qualification to complement his existing degree. He thought he would try to complete an IELTS course, and then seek out enrolment in a Master of Engineering. If he was not able to obtain enrolment  in a master’s course immediately he would try to enrol in a Diploma of Engineering with the hope that the course would provide a pathway to a master’s qualification. He did not know which institution he would undertake his studies at but he had friends who had studied at the Holmes Institute and he believed he could get enrolment there. His father had obtained a loan for him to undertake his proposed MBA; he believed that his father would support the cost of his further studies, although he has not informed his father that his enrolment was cancelled. He does not know whether he could have continued to study on his current bridging visa, he thought that since Australian Harbour International College rejected him that he would not be successful in obtaining enrolment while he did not have a valid student visa. He had not consulted an agent or any other professional regarding advice on obtaining a further enrolment.

24. It is accepted that the applicant would prefer to obtain his qualifications in Australia, but the applicant also acknowledged that similar courses were available in his home country. He did not advance any other reason that he wished to stay in Australia. He has not undertaken any study in a master’s course since 2018, he does not have a CoE in any course in the future and his evidence as to his plans for further study in Australia included either an IELTS course, a master’s or a diploma. The Tribunal considered this to be vague, and raised questions as to the actual research he had undertaken into potential courses.  On the material before it, the Tribunal is not satisfied that the applicant has a compelling need to travel and remain in Australia.

25. The Tribunal gives this issue low weight in favour of the applicant.  

    The extent of compliance with visa conditions

26. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 11 December 2018 to the date of the decision to cancel the visa on 20 March 2020. The Tribunal considers this period of 15 months to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

27. This was the first visa that the applicant had been granted for travel to Australia. Although the applicant claimed not to be specifically aware of the visa condition that he maintain enrolment, he acknowledged that he was aware his visa was granted with conditions. He confirmed that he had read the letter that advised of the grant of his visa and he claimed that he had complied with other visa conditions. When the Tribunal asked what conditions he had complied with, he spoke of not working too many hours and having to arrive in Australia by a certain date.

28. Although there is no other evidence of non-compliance with other visa conditions, considering the lengthy period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, the Tribunal gives this discretionary factor little weight in favour of the applicant in exercising the discretion not to cancel the visa.

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

29. The applicant also claimed that due to the COVID-19 pandemic many of the institutions in India were not providing courses and it may be a few years before he was able to undertake further studies in India. An overseas qualification would also assist with his intention of working for a multinational corporation in India. Although the applicant claimed to have told his family about the circumstances that led to his visa cancellation by the Department, under further questioning he conceded that he had only informed his mother and his brother. He said that his father was a hard man and that he did not wish to disappoint him by returning to India without an Australian qualification. His father had borrowed money to finance his initial studies and he did not want to have to inform his father that he had not obtained any qualifications.

30. The Tribunal accepts that the delivery of tertiary education may have been disrupted by the COVID-19 pandemic in India, and that there may be delays for the applicant in commencing a course in the future. However, with the worldwide rollout of several vaccines it is anticipated that education and economic disruptions will diminish. Furthermore, the applicant has not obtained an enrolment in a further master’s course in Australia and according to his evidence he is unsure whether he could obtain a further enrolment immediately or will need to spend several years undertaking courses at the diploma or Vocational Education and Training (VET) level before obtaining entry in a tertiary course. Therefore, it also may be several years before the applicant undertakes his desired qualification in Australia, at considerable extra cost. While an international master’s qualification may be of assistance to the applicant in seeking employment in the future, it is not that he is without any qualification.  He has obtained a bachelor qualification in Engineering in India, and could seek employment based on this qualification. Finally, he has already had the opportunity of study in Australia and did not study his enrolled master’s course or obtain a further enrolment before his initial visa was cancelled.

31. The Tribunal has considered the evidence of the applicant that he has not informed his father that he has not continued his studies in Australia and of the departmental decision to cancel his student visa. It is accepted that for the applicant to return home without achieving his desired qualification they will be disappointed in him, particularly when his father had borrowed money to finance his initial studies. Further, it is accepted that the applicant will find it emotionally difficult to face this disappointment.  However, there is no evidence that the applicant would suffer any consequential medical illness.

32. The Tribunal gives this discretionary factor little weight in favour of the applicant in exercising the discretion not to cancel the visa.

    Circumstances in which ground of cancellation arose

33. In his evidence and submissions the applicant advanced several issues that impacted on his ability to maintain enrolment.

    Illness

34. When the time came to start his course, the applicant claimed he was ill. In his letter of submission to the Department, the applicant did not identify any illness but also mentioned that this was his first time away from his family. To the Tribunal the applicant claimed that he was cold in Sydney, as he was used to the warmer temperatures in India. He spoke about having a fever, yet also said that he did not seek any medical assistance. In the absence of any supporting evidence, the Tribunal is able to place little weight on the claim that because he was cold the applicant was unable to start his course. There is no evidence that the applicant sought to defer his studies due to illness and from the evidence he presented, as discussed below, the Tribunal has concerns as to whether he intended to commence the course.

    Unable to obtain a release or transfer to a different course

35. The applicant told the Tribunal that as he had obtained a bachelor qualification in Engineering, it was in this field of study that he really wanted to undertake the master’s qualification. The Tribunal then questioned why he had obtained an enrolment in an MBA in the first instance when he did not want the qualification in this area, and the applicant responded that the MBA was recommended to him by his education agent in India as a similar qualification, and he was told that he would be able to change it once he was in Australia by contacting his education provider. The Tribunal has carefully considered the emails submitted by the applicant and it accepts that from 3 December 2018, he commenced email communication with Federation University International Admissions Team enquiring how to transfer to another course. Yet this date is after he was to have commenced his studies in MBA. He has not presented any evidence that he sought to defer or continue with his current enrolment until he arranged enrolment in another course. There is no communication in the emails submitted by the applicant addressing the enrolment cancellation or seeking to rectify this situation. Under questioning from the Tribunal, the applicant said that he did not know what to do, and the Tribunal accepts that this would be difficult to navigate for an international student. However, the Tribunal is not satisfied that the various emails the applicant sent constitute a reasonable attempt to obtain such advice or maintain his enrolment. Other than a request for general advice the emails do not specifically set out the course changes the applicant was seeking to make and that he was seeking to maintain his enrolled status. In some of the emails presented the applicant had not disclosed to the Tribunal the text of the communication and little weight can be attributed to them.

36. Although he claims he filled in some forms, the applicant has not presented any forms he completed to alter his enrolment or transfer to a different course in Melbourne, or evidence that he went in person to seek advice at any time prior to his course cancellation. The applicant claimed he did not know it would affect his visa status, yet the onus rests on the visa holder to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change.

    Unable to obtain a further enrolment

37. Instead of studying at Federation University in Sydney, the applicant determined after he had completed his English course that he wanted to study in Melbourne because he said that he knew a few people studying there. The Tribunal enquired about where he wished to study and his emails suggest he was seeking to transfer to the Federation University Melbourne campus. He claimed Federation University would not respond to his enquiries. He also claimed that he sought to obtain enrolment with the Holmes Institute, Melbourne Institute of Technology (MIT) and another education provider who he could not remember. According to the applicant these three providers rejected him because he had a five month gap in his studies when he applied. He said that he did not know how to get admission. He did not end up moving to Melbourne as he had not obtained enrolment.

1. The applicant then said his friends had told him to enrol in a diploma course as a pathway to getting into a master’s qualification so he would address his study gap. Initially, however, the applicant said that he did not want to do this because he had come to Australia for the purposes of a master’s qualification. Around the time he received the NOICC from the Department he decided to pursue enrolment at Australian Harbour International College on advice he had received from an education agent. The applicant’s evidence was that an offer of enrolment was issued but despite paying the fees he was unable to get a CoE issued. The Tribunal questioned the timing of this enrolment and why he had waited over a year. The applicant had no satisfactory response other than he did not know what to do. The Tribunal questioned the applicant about obtaining advice from a migration agent and he again claimed he did not know where to get the advice. The Tribunal also questioned why he would seek to enrol in a Business course when he claimed to be interested in Engineering. The applicant responded that he believed he could get into a Master of Engineering through this pathway. The applicant has presented no evidence that he obtained an offer of enrolment at Australian Harbour International College. The Tribunal discussed with the applicant, pursuant to the provisions of s 359AA of the Act, his PRISMS record, details of which were recorded in the delegate’s decision, and a copy of which was before the Tribunal. The applicant was advised that the relevant information in this record was that there was no evidence of any enrolment in his name after his MBA was cancelled by Federation University on 11 December 2018. The applicant was advised that the information was important because if he had paid for a CoE to be issued, then it should have been recorded in his records, even if it was subsequently cancelled by the course provider because he did not hold a visa. As there was no further enrolment recorded, and in the absence of any evidence of even an offer of enrolment, the Tribunal found it difficult to accept his claims that he had proceeded to enrol with the Australian Harbour International College.

2. The applicant also spoke to the Tribunal about monies he had paid for study. He claimed that despite requests he was unable to obtain a refund of the $11,000.00 (AUS) in fees he had paid for his MBA. He needed this money to assist with future enrolment and indicated he still intended to pursue a refund in the future. The Tribunal raised with the applicant concerns as to whether he had the funds available for a further enrolment, and the applicant responded that his family would support him. The Tribunal questioned whether this would be the case if he had not told his father the truth about his circumstances, and the applicant said he believed that his father would support him.   

3. The Tribunal has considered the various reasons offered by the applicant. It does not accept that illness prevented his initial studies, and it has concerns about the reasonableness of his attempts to change his enrolment and how actively and thoroughly he pursued this intention. It does not accept that the cancellation of his initial enrolment was an extenuating circumstance beyond his control. The Tribunal also is not satisfied, in the absence of further evidence to support his claims, that three attempts at enrolment in Melbourne, some five months after his visa was initially cancelled, were reasonable attempts within a reasonable period obtain further enrolment in a registered course of study and comply with his visa condition.

4. The Tribunal gives this discretionary factor little weight in favour of the applicant in exercising the discretion not to cancel the visa.

   Past and present behaviour of the visa holder towards the Department

5. There is no evidence that the applicant has not been cooperative in his dealings with the Department in the past, and he responded to the NOICC within the requested timeframe. The Tribunal gives this consideration some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s 140

6. The applicant claimed to be single with no dependents. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

7. There are mandatory consequences in the case of cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas. 

8. If the visa remains cancelled, the applicant will continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision.  It is acknowledged that there may be COVID-19 related restrictions on travel that may give rise to further delay in the applicant returning to India, however, there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and deportation. However, at the hearing the applicant told the Tribunal that he intended to comply with any lawful direction to depart Australia, therefore the likelihood of the applicant being detained is remote.

9. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act that he may not be granted a further visa for three years from the date of cancellation. It is noted that this date runs from the date of the delegate’s original decision and the applicant has already served a portion of this period.

10. Additionally, the applicant may also be affected by Public Interest Criterion 2013, which would limit the grant of a further temporary visa for a specified period of time. It is accepted that cancellation may also restrict the applicant’s future ability to make a successful visa application. The cancellation of the visa has the consequence that the applicant would have difficulties in obtaining any further visas in Australia, however those are also intended and legitimate consequences of cancellation.

11. The Tribunal gives this consideration neutral weight.

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

12. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

13. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

14. When asked about any concerns or fear of returning to India, the applicant only disclosed his concern that his father would be aware that he had not completed his studies and consequently disappointed. The applicant did not make any claims of any other problems if he returned to India. The Tribunal does not accept that his family concerns give rise to any international obligations.

15. The Tribunal gives this consideration neutral weight.

    Any other relevant matters

16. The applicant’s visa was a temporary visa, intended for the duration of his MBA course, which was to conclude in November 2020.

17. There are no other relevant matters raised by the applicant.

    Conclusion

18. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. It is not satisfied that the applicant has demonstrated that his illness, desire to change enrolment or actions of various education providers left him unable to study and that his failure to maintain enrolment was outside his control. The Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period with studying or maintaining enrolment. Further, it is mindful that the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

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

    DECISION

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

    Penelope Hunter
    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.