Kumar (Migration)

[2021] AATA 1313

Kumar (Migration) [2021] AATA 1313 (8 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akshy Kumar

CASE NUMBER:  2005469

HOME AFFAIRS REFERENCE(S):          BCC2019/5277895

MEMBER:Meredith Jackson

DATE:8 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 08 March 2021 at 2:36pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was not enrolled for more than six months – failure to study effectively in preparatory courses – no compelling need to stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
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 28 February 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 (the Act).

2.    The delegate cancelled the visa on the basis that the delegate was satisfied after weighing all the information available that the grounds for cancelling the visa outweighed the reasons for not cancelling. 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 8 March 2018 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 (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)

·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).

Case summary

7.    The applicant, Akshy Kumar, a citizen of Pakistan, was granted the visa under review for study in higher education. He was to undertake a package of courses at Griffith University, a preparatory course at Diploma level and a Bachelor of Commerce. The start date was 26 June 2017 and conclusion of the degree course was scheduled for 30 June 2020. The applicant did not complete the courses. In September 2018 they were cancelled by the university.  He does not dispute that he was not enrolled for more than six months. In April 2019 he went back to Pakistan. He returned to Australia in July 2019 but did not complete the courses in which he enrolled before leaving: a Diploma of Automotive Technology, a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. These courses were cancelled by the provider and he has not been enrolled since. The applicant, a Hindu, claims he could not afford to study but cannot go home to Pakistan because his family will not protect him and he is discriminated against by the Muslim majority.

Documents and oral evidence provided to the Tribunal

8.    The applicant provided, on request, a copy of the delegate’s decision. The applicant made no other written submissions. The Tribunal has had the benefit of the applicant’s oral evidence and information in Tribunal and Department files.

Was the applicant enrolled in a registered course as required?

9.    The applicant did not dispute that he was not enrolled in a registered course beyond 11 April 2019, as the delegate had found.

1. The Tribunal, in order to confirm the applicant’s enrolment record, sent him a copy of that record prior to the hearing, indicating that it may be discussed in the hearing.

2. In the hearing, pursuant to section 359AA of the Act, the Tribunal said it had information to put to the applicant that was relevant to his case. It was information that would, subject to his comments of response, be the reason, or part of the reason, to affirm the decision to cancel the visa. The information was in the Department’s Provider Registration and International Student Management System (PRISMS). The applicant said he had the information sent to him, before him. The Tribunal said he was entitled to seek additional time to comment or respond to the information. The applicant did not seek additional time and chose to comment immediately after the information was read out to him.

3. The Tribunal said the record appeared to show that all his courses had been cancelled and further, that he was last enrolled on 11 April 2019.

4. The applicant said the information was correct. He said he did not disagree with the record and stated that he made no written submissions about his case to the Tribunal because he was seeking review and he “just wanted someone to talk to”.

5. The Tribunal has considered the applicant’s PRISMS record. The Tribunal finds that the applicant was not enrolled in a full time registered course between 11 April 2019 and the date of this decision. Accordingly, the Tribunal finds the applicant has not complied with condition 8202(2)(a).

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

1. The applicant was granted his Subclass 500 visa for the purpose of studying a Bachelor degree in Australia. He is currently holding a Bridging (BVE) visa. The Tribunal has no evidence before it that the purpose of the applicant’s travel and stay in Australia was for anything other than study.

Circumstances in which the cancellation arose.

1. There is no dispute that the visa was cancelled because the applicant was not enrolled. The applicant gave evidence at the hearing that it happened because after he completed the first five subjects, he ran out of money for tuition. He claimed that in the past, he had caused his parents a lot of trouble. He was dating a Muslim girl, and he is Hindu, and when they found out he had slept with her, they were very unhappy. He said they spent a lot of money to get him out of the country to Australia to study. But after he failed his first five courses, his parents would not fund him anymore. He wanted to go back to Pakistan because he had to get money to do automotive courses. He had enrolled in them because he wanted to stay in Australia. He departed for Pakistan in April 2019, which was for his brother’s wedding, and did not tell his parents he was coming. Soon after, his parents left for Africa with his sister and her husband, without him. Now his parents live in Africa, and only his mother speaks to him, he claims. He wanted to stay in Pakistan, but his elder brother, who still lives there, did not want him. “He and his wife kicked me out, so I had no-one left in Pakistan,” he stated. He came back to Australia in July 2019, but by then the first automotive course was well advanced. He had not realised all the courses had been cancelled in April 2019, he claims; further, he had no knowledge of Australia’s immigration processes and he could not afford a lawyer. In February 2020, he found out his visa was cancelled.

2. The Tribunal has considered the described circumstances in which the cancellation arose in order to establish whether they are outside the applicant’s control. The applicant claims he experienced difficulties with his family, with his romantic life in Pakistan, and through his failure to pass his first five courses in Australia. These factors caused him to breach his visa conditions, he claims. The Tribunal discussed these circumstances with the applicant at length in the hearing, and found his explanations, while not supported by any form of documentary evidence, to be at times, reasonably credible. The Tribunal accepts that in his home country, having had intimate relations with a woman from a different faith, the applicant may have caused himself, and his family, considerable grief. The Tribunal accepts his claim that he caused his parents “a lot of trouble” and that his brother, in turn, kicked him out of his house.The Tribunal also accepts that the applicant’s parents may have moved to Africa in part to avoid the kind of trouble their son wrought with his affair and that they may have sent their son away to study to divert him from Pakistan. The Tribunal accepts that the applicant’s failures at study in Australia, may have played a major role in his father’s estrangement from him, and does so without  supporting evidence such as independent witness testimony, to that effect. The Tribunal accepts that the applicant ran out of money in Australia and could not pay his fees.

3. The Tribunal has no conclusive evidence before it, however, that the applicant has no-one to turn to either in Pakistan or Australia; or that his parents don’t want him in Africa. His evidence features too many contradictions. The applicant has variously claimed in oral evidence that he wants to live in Pakistan; and he might “go for” protection in Australia because he would suffer violence or be killed if he returned home; that he wants to stay in Australia to study a few courses he can afford; and that Australia has caused him a lot of trouble.

4. Taking into account all of the above, on balance, the Tribunal concludes that the applicant’s failure to study effectively in preparatory courses was the key factor that led to the cancellation of all his courses and ultimately, that of his visa. The rest amounts to life circumstances common to many people. The applicant has not claimed he sought intervention from his education provider to help him complete his preparatory courses. The Tribunal notes his first preparatory course was cancelled for the reason of non-commencement of studies. At the second attempt at the course, the applicant is stated to have notified cessation of studies. The Tribunal finds the failure to study effectively was not beyond the applicant’s control and the Tribunal weighs this consideration against him.

The extent of compliance with visa conditions; behaviour towards the department

1. As detailed above, the Tribunal has found the applicant did not comply with a condition of his visa to remain enrolled. The delegate’s decision, supplied to the Tribunal by the applicant, states that on 4 February 2020, the Department sent him a Notification of Intention to Consider Cancellation (NOICC) of his visa. He received it; he responded the same day. He did not dispute that he had was not enrolled as required and sought an extension to provide a further response. There is no evidence before the Tribunal that he did so.

2. The Tribunal is not aware of any other failures to substantially comply with his visa conditions. The Tribunal affords this consideration some weight in his favour.

The degree of hardship that may be caused by the cancellation to the applicant and his family

1. The applicant claims a visa cancellation will mean that when he returns to Pakistan, he will suffer hardship: he will be alone, with “nothing there” and will not be able to support himself. He will not find employment, he claims, because he is Hindu and the Muslim majority in Pakistan will pursue him. He states that his relationship with his Muslim girlfriend is continuing; and that she is a victim of family violence which may affect him also.

2. He claims that while there is no compelling need to remain in Australia, “I would like to go for a protection visa, because I had troubles back in Pakistan, I would hire a lawyer,” he stated at the hearing. “I am minority in Pakistan, I am Hindu; I was dating a Muslim girl, she lives in Pakistan and she is a victim of domestic violence. You don’t have any freedom of speech in Pakistan, the Muslim majority comes looking for you. People were looking for me, when my parents found out I slept with that girl, they did not like it. My dad took my sister and got her married in India and is now in Africa with them. I have been gone seven years; I cannot marry my girlfriend in Pakistan, they will shoot me there. She wanted to come here but she can’t, she’s a victim of domestic violence from her father.”

3. He stated that in Australia, he is “mentally ruined”; Australia has given him a lot of stress, it took him a long time to get on his feet after he came back. He got unfair dismissal from his employer but just recently, he started working at a Thai restaurant for an Indian employer, but still, he is being underpaid. “They take advantage of you, all these people,” he stated. If he were granted the visa, however, he would be able to study some courses; he would be able to save $1000 a month from his pay for fees and scrape by, despite the high living expenses.

4. The Tribunal accepts that the applicant will suffer relative economic hardship without any Australian qualifications or any welfare payments if he returns Pakistan and may experience religious discrimination if he pursues his relationship with his girlfriend. However the Tribunal is mindful of the applicant’s statement in the hearing that when he returned to his home country in 2019, he wanted to stay there. This appears at odds with his claim that he will not find a way to live in his home country. The Tribunal has considered this part of his evidence carefully, and is not satisfied that the claim is made out.

5. The Tribunal nevertheless accepts a degree of hardship will be faced by the applicant if he returns to Pakistan and affords the consideration some weight.

Whether there would be consequential cancellations under s.140

1. The applicant has no dependants and no consequential cancellations arise in this matter.

Whether there are mandatory legal consequences

1. The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the likely impacts of legal consequences in the case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and, in those circumstances, 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.

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 all the applicant’s claims and evidence and weighed its considerations in the case 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.