Kumar (Migration)

[2024] AATA 3083

Kumar (Migration) [2024] AATA 3083 (2 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parveen Kumar

REPRESENTATIVE:  Mr Shiva Raj Neupane (MARN: 1383508)

CASE NUMBER:  2306851

HOME AFFAIRS REFERENCE(S):          BCC2023/2239844

MEMBER:David McCulloch

DATE:2 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Class TU) (Subclass 500) visa.

Statement made on 02 August 2024 at 7:35am

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant had not been enrolled in a registered course of study – injury and mental health issues – there are extenuating circumstances beyond the applicant’s control that justify or explain his non-enrolment – no compelling need to for the applicant to remain in Australia – decision under review affirmed

LEGISLATION 
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 May 2023 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 applicant is a citizen of India born on 19 December 2002. The visa that was cancelled was granted on 11 January 2022 for a period of stay until 12 April 2024.

3. The applicant was sent a Notice of Intention to Consider Cancellation of the visa (NOICC) on 27 April 2023. The applicant provided a statement in response and supporting documents. This material was also provided by the applicant to the Tribunal.

4. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course, breaching condition 8202(2)(a) of the 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.

5. The applicant appeared before the Tribunal on 30 July 2024 at 9:30am to give evidence and present arguments. The hearing was conducted by video using Microsoft Teams.

6. The applicant was represented in relation to the review. It was advised that the representative would not attend the hearing and they did not do so.

7. 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

8. 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?

9. 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).

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

11. The delegate’s decision indicates that the applicant was enrolled in six different business courses, which were all cancelled, on dates ranging from 1 December 2021 until 31 August 2022. The study records indicate that he was studying in the first half of 2022 a Diploma of Business and it was this course that was cancelled on 31 August 2022 for non-payment of fees.

12. The delegate notes that the applicant is also registered to study a Certificate III in Light Vehicle Mechanical Technology with two different education providers, with the courses starting on 11 April 2023 and 7 June 2023 respectively. The delegate notes that no Confirmations of Enrolment have been issued for these courses as each required release from the other. It is indicated that the applicant was made aware of this by the education providers.

13. The applicant provided, in response to the NOICC, Confirmations of Enrolment in a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis, each enrolled in on 3 May 2023.  There are also enrolments in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.

14. The Tribunal put to the applicant in the hearing that all of this indicates that he has not been enrolled in a registered course from 31 August 2022 until 3 May 2023.

15. The applicant in hearing agreed with this period of non-enrolment.

16. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

18. 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). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations, provisions in the Act which prevent the person making a valid application without the intervention of the Minister, and whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

19. The Tribunal deals with relevant discretionary factors in the order that the Tribunal considers most relevant and important.

    Circumstances in which the ground of cancellation of cancellation arose – whether there are extenuating circumstances beyond the applicant’s control

20. The written response explains that the applicant came to Australia in early 2022 with the desire to undertake business studies. The applicant initially found the course content intimidating and difficult. The applicant had difficulty completing assignments. After a few months, the COVID-19 pandemic was having an impact. There were differences between studying in class and the online modes. The applicant could not complete the assignments. The applicant indicates he was not contacted by his college despite requests. The applicant could not concentrate on the studies because he feared for his parents due to the pandemic. The situation was not in the applicant’s control.

21. The applicant in addition, had a vehicle accident in June 2022 and one of his legs was seriously injured. The applicant consulted a doctor and started treatments. The applicant was depressed but later decided to change his education path to automotive matters. The applicant refers to his current enrolments in a Certificate III in a Light Vehicle Mechanical Technology followed by a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology.  The applicant has also referred to the importance of being a businessman in relation to his automotive studies and thus has enrolled in a Diploma and Advanced Diploma of Leadership and Management.

22. The applicant wishes to return to India after completing his studies and work in the automobile sector. The applicant requests the ability to be allowed to complete his study. He will strictly abide by visa conditions.

23. The applicant provides a medical report from a doctor who appears to be based in India dated 3 May 2023, referring to the applicant indicating a history of anxiety and depression and symptoms of headache and insomnia. It is indicated that the applicant needs medication and rest. Provided also is evidence of a consultation the applicant had at the medical practice in Australia on 15 July 2022. The reason for the consultation is not indicated. A document from a chartered accountant in India is provided dated 29 September 2021 indicating the net worth of the applicant.

24. In the hearing, the applicant indicated that the difficulties began when he had an accident with a scooter causing his leg to be injured. The applicant indicated that the leg was burned. He saw a GP who referred him to hospital. The applicant attended the hospital for day treatment and was sent home but returned the next day and stayed overnight. It was recommended that the applicant have surgery involving a skin graft. The applicant indicated that he determined not to proceed down this path. He discussed the issue with his family in India and consulted a doctor in India who sent medications to the applicant to treat the injury.

25. The applicant indicated that from this point on his mental health deteriorated creating the circumstances leading to the period of non-enrolment.

26. The Tribunal explored with the applicant in the hearing whether he obtained treatment for his mental health issues in Australia. The applicant had provided evidence of a remote medical consultation in India dated 3 May 2023. The Tribunal questioned the applicant as to why he did not seek earlier treatment in Australia. The applicant indicated that he was in constant contact with his family in India who advised him not to get medicine in Australia for mental health problems.

27. The Tribunal asked the applicant why he did not obtain the relevant treatments for his leg injury in Australia rather than consulting a doctor in India and having medication sent. The applicant referred to the advice of his parents in relation to this.

28. The Tribunal asked the applicant if he contacted his education provider to inform them of his injury and mental health issues to seek to make appropriate arrangements. The Tribunal noted that the applicant would have been able to request a deferral of his course based on his medical situation. This would have enabled the applicant to be treated for the conditions but to have maintained enrolment in a registered course.

29. The applicant indicated that things were very difficult for him and he did not have the presence of mind to do this. The Tribunal noted to the applicant that it was hard to accept that there were extenuating circumstances beyond the applicant’s control that would explain and justify the approximately eight-month period of non-enrolment when the applicant had not made any contact with the education provider.

30. The Tribunal put to the applicant that it was hardly surprising that his enrolment would be at risk of cancellation if he were not attending classes and did not pay the required fees. The applicant indicated there was no contact from the education provider in relation to the cancellation of his enrolment. The Tribunal put the applicant that even if this was the case the applicant must have known that his enrolment was at risk.

31. In the hearing, the Tribunal asked the applicant on at least two different occasions if everything was satisfactory in terms of his study of the Diploma of Business up until the accident in June or July 2022. The applicant indicated that study up until this point was going satisfactorily.

32. The Tribunal noted to the applicant that this is different evidence to the applicant’s written response to the NOICC. In that response the applicant indicated that he was having problems studying online. He indicated it was difficult for him to complete assignments. He indicated that the college never responded to him contacting them. He indicated that he could not concentrate because of worry about his family due to COVID-19.

33. The Tribunal asked this question of the applicant on two occasions and on each occasion the applicant said that the difficulties with study occurred after the accident. At the end of the hearing, the Tribunal put to the applicant that this did not make sense as on his evidence in the hearing he undertook no further study and had no contact with the education provider. The applicant in response did not address the concern in any meaningful way.

34. This significant inconsistency between the written response to the NOICC and evidence in the hearing creates credibility issues for the Tribunal in relation to the applicant’s explanations for non-enrolment.

35. However, the central issue, unrelated to this inconsistency is, even if the Tribunal were to accept that significant medical and mental health issues were suffered by the applicant after his accident in June or July 2022, would this constitute extenuating circumstances beyond the applicant’s control justifying or explaining the lack of enrolment for the not insignificant period of approximately eight months.

36. This is in the context of the applicant’s evidence that he simply stopped his study without any contact at all with the education provider. The applicant can hardly be surprised that his enrolment was at risk if he did not attend classes or pay fees.

37. The obvious action the applicant should have taken if there were significant medical and mental health issues as a result of the injury would have been to have sought a deferral from the course on medical grounds.

38. While the Tribunal might make allowances for some period of non-enrolment for the reasons indicated, in all of the circumstances the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify or explain his non-enrolment for the not period of approximately eight months.

    Purpose of travel to and stay in Australia

39. In the hearing, the applicant agreed that the purpose of him coming to Australia on the student visa was to study.

40. The Tribunal requested the applicant in advance of the hearing to provide evidence of any courses successfully completed in Australia and, in relation to courses commenced but not completed, evidence of units in those courses passed.  No relevant material was provided in response.

41. The Tribunal asked the applicant in the hearing if he had passed any units in the Diploma of Business between commencing studies in February 2022 and the cancellation in August 2022. The applicant indicated that he passed no units because he did not take exams before he stopped his study.

42. The Tribunal is prepared to accept the applicant was genuinely studying the Diploma of Business between February 2022 and the time of his accident in June or July 2022. However, he has made no progress in terms of completing any course in Australia or passing any unit in any course during his time here.

43. This is adverse to the applicant to a limited degree only in the exercise of the Tribunal’s discretion.

    Hardship or compelling reasons to remain in Australia

44. The applicant at the hearing indicated that his desired change of direction in his studies from business to automotive studies was because of the advice of friends.  He indicated that his desire now is to undertake automotive studies in Australia to return to India and start a business in this area. The applicant indicates that he is particularly interested in pursuing work related to the burgeoning area of electric vehicles.

45. The applicant indicated that the hardship he faces if the visa remains cancelled is to limit his ability to pursue study in Australian and a related career in India.

46. The Tribunal accepts a degree of hardship to the applicant for the reason claimed.

47. The Tribunal accepts that if the visa remains cancelled, a hardship arises in relation to limitations on the applicant’s ability to obtain visas to remain in or enter Australia for a significant period.

    Other matters

48. The applicant indicates that he does not fear persecution or significant harm on return to India. Thus, Australia’s non-refoulment obligations are not enlivened.

49. The applicant indicated that there are no children in Australia whose interests are impacted by continued cancellation of the visa.

    Weighing discretionary factors

50. The Tribunal has above outlined what it considers to be the relevant discretionary factors in this matter.

51. The key significant factor in this matter is that the Tribunal does not consider that there are extenuating circumstances beyond the applicant’s control that justify or explain his non-enrolment in a registered course for the not insignificant period of approximately eight months. The Tribunal draws only a limited adverse inference from the lack of the applicant’s study progress during his time in Australia on the student visa.

52. The Tribunal is not satisfied that matters adverse to the applicant are outweighed by the hardship the Tribunal accepts he will face if he is not able to progress with automotive studies in Australia to provide a foundation for pursuing work interests in that area in India, or any other discretionary factors in his favour.

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

    DECISION

54. The Tribunal affirms the decision to cancel the applicant’s Student (Class TU) (Subclass 500) visa.

    David McCulloch
    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.