Kumar (Migration)

[2020] AATA 4496

Kumar (Migration) [2020] AATA 4496 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sumit Kumar

CASE NUMBER:  1817329

HOME AFFAIRS REFERENCE(S):          BCC2018/835571

MEMBER:Donna Petrovich

DATE:12 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 12 August 2020 at 11:41am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – limited academic progress – family health issues – applicant changed to lower level course – non-payment of course fees – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector 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 remined un-enrolled from 22 July 2017 until 4 May 2018, a period of 10 months. 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 16 July 2019 to give evidence and present arguments.   

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.

   Background

9. The applicant arrived in Australia in May 2016 with the intent of studying a Business Degree which would enable him to pursue business interests on his return to India. The applicant was 20 years old when he enrolled in a Business course in Sydney.  The applicant told the Tribunal that his Mother, Father and Sister remain in India, and that he speaks to his family each day via telephone.

10. The applicant was granted a Student (subclass 572) visa offshore on 11 May 2016 and arrived in Australia on 14 May 2016 and undertook studies in Business.  He told the Tribunal that he suffered from very low mood and did not know anyone in Sydney. He was enrolled in a Certificate iv in Project Management which was a one-year course, he told the Tribunal that he had completed six months study. The applicant told the Tribunal that his mother was unwell and he returned to India for 14 days and had deferred his studies for this period by arrangement with the College. On his return the college told him that he was able to do make up subjects over the holidays and he would still graduate at the same time.  He was also significantly behind with course work and in the submission of his assignments.  The course required 25 assignments and the applicant told the Tribunal that he had only submitted three. The applicant was also behind in his Student fees and borrowed the money to pay for these.

11. He then enrolled in Certificate iii in Cookery in Melbourne for a period of six months, the applicant told the Tribunal that he did not attend regularly and that his enrolment was cancelled. 

12. The applicant told the Tribunal that he tried to re-enrol, but was unable to do so. He told the Tribunal that he tried both Accor and Holmes unsuccessfully.  

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

    Consideration of the discretion to cancel the visa

14. 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, whether the visa holder has a compelling need to travel to or remain in Australia

15. The applicant arrived in Australia on 14 May 2016. The applicant was granted a Student (subclass 572) visa 11 May 2016 to study a Certificate iv in Project Management. The applicant studied for eight months in Sydney and his enrolment was cancelled due to unpaid fees and because he had not made the required academic progress.  The applicant then enrolled in a Cookery course in Melbourne and was enrolled for six months and told the Tribunal that he did not attend regularly, and his enrolment was cancelled.  The applicant told the Tribunal that he had come to Australia to study and when asked whether he could study Cookery in India but said that he could but “an Australian qualification means more”. In considering this, the Tribunal finds that the applicant had little academic success since his arrival in Australia and could pursue study in India.  The Tribunal finds that the applicant does not have a compelling need to travel or remain in Australia and in this case gives little weight in exercising discretion not to cancel.

    The extent of compliance with visa conditions

16. The applicant has not been enrolled in a registered course since May 2018, and remained un-enrolled for 10 months between 22 July 2017 and 4 May 2018. The applicant did not seek work or study rights as part of bridging visa E.

17. However, the applicant has remained in Australia without having complied with the conditions of his visa.  As such the Tribunal views the applicant’s non-compliance as significant and as such the Tribunal gives no weight in favour of considering exercising discretion not to cancel.   

    The Degree of hardship that may be caused to the applicant

18. The applicant told the Tribunal that if the delegate’s decision were upheld it would affect him badly, and that he really needs a chance to once again do something, and that “his future would vanish” and that his parents would be disappointed in him. The Tribunal accepts that there would be some degree of hardship experienced by the applicant and certainly disappointment by his family. In considering this the Tribunal gives some small weight in favour of the applicant.

19. The applicant also told the Tribunal that he really needed another chance to complete his cooking course, and if he was able to he could then get further experience working as a Chef in Australia, and then he may be able to apply for a permanent visa. If he gets residency then he would like to stay in Australia. The Tribunal in considering this is concerned that the applicant has a view to permanently residing in Australia, and it is possible that he is using his student visa as an opportunity to continue to stay in Australia with a view of obtaining permanent residency in the future. The Tribunal places no weight in favour of the applicant in this regard.   

20. The Tribunal notes that in the event that the applicant’s visa is cancelled under s.48 of the Act he may have limited options available to him if applying for further visas in Australia. In addition, he will be subject to Public Interest Criterion 4013 which means he may not be granted a temporary visa for three years from the date of cancellation.

    Circumstances in which the grounds for Cancellation arose

21. The applicant enrolled in Study at Acumen College in Sydney studying a Certificate iv in Project Management and studied for 6 months.  The applicant told the Tribunal that he was suffering from a low mood, as he felt isolated and did not know anyone. He provided the Tribunal with a copy of a Medical Certificate which he obtained for Acumen College in Sydney which related to his low mood and inability to sleep dated 28 October 2016.  When asked if he had sought assistance from a psychologist, he explained that he did not think this necessary and he would get better himself, The Tribunal asked how he was doing now and he said that he had recovered.

22. The applicant provided a copy of a second letter provided to the College in Sydney which related to taking leave to visit his mother who was ill, and his family in India.  The applicant sought a deferment for the period of his absence which was granted.  The applicant was absent for 14 days and resumed study on his return from India.

23. The applicant told the Tribunal that he had fallen behind, and the College required him to complete a number of assignments as part of his assessment requirements. He explained that there were 25 assignments due and he had only completed two or three.

24. During this time the applicant had also fallen behind in his payment of fees and had to borrow money from his friends to pay these overdue fees.

25. Then Acumen College cancelled his enrolment ultimately because he was behind in his course work and because of poor academic progress.

26. He then sought enrolment in Melbourne after trying Accor and Holmes Colleges because of previous poor academic performance, he found it difficult to enrol. He was able to enrol in Certificate iv in Cookery, he studied six months of the three-year course. This enrolment was cancelled after six months as he did not attend regularly.

27. The Tribunal in considering the circumstances as a whole; takes the view that the applicant was unenrolled for a period of ten months due to poor academic performance, poor attendance and falling behind in his fees. The Tribunal places significant weight against the applicant in this regard.

28. The applicant provided a certificate to the College regarding his low mood, which was diagnosed by a General Practitioner. He did not seek further diagnosis or treatment from a registered mental health practitioner, the Tribunal is unable to consider this as evidence of debilitating mental illness, and places only some small weight in favour of the applicant.

    Past and present behaviour of the visa holder towards the Department

29. The applicant has been courteous and co-operative in all his dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some small weight is given in favour of the applicant in consideration of this factor.

    Person in Australia whose visa would be cancelled under s.140

30. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would or, may be cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to Department records there are no persons in Australia whose visa may be cancelled under s.140 of the Act. Accordingly, the Tribunal places neutral weight on this consideration in the applicant’s favour.

    Any breach of International obligations Australia may have as a result of the applicant’s visa being cancelled 

31. The circumstances of this case are such that they would not engage Australia’s International obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

32. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

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

    DECISION

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

    Donna Petrovich
    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.