Kumar (Migration)

Kumar (Migration) [2020] AATA 2785 (1 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Naveen Kumar
CASE NUMBER:  2002692
HOME AFFAIRS REFERENCE(S):          BCC2019/5022329
MEMBER:Elizabeth Tueno
DATE:1 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 June 2020 at 4:58pm
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 visa not fulfilled – extent of non-compliance – back injury – ability to work – 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

This is an application for review of a decision dated 4 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).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) in that he was not enrolled in a registered course of study. The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 29 May 2020 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The Tribunal has had regard to the applicant’s evidence given at the hearing, documents in the Department’s file as well as documents provided to the Tribunal by the applicant including written submissions by the applicant’s migration agent, a statutory declaration by the application dated 23 January 2020, various confirmations of enrolment, a letter from Robina Hospital emergency department dated 30 September 2017, a pathology request dated 5 July 2018 and a prescription for Somac dated 5 July 2018.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant accepted that he had breached condition 8202(2)(a) as he is not currently enrolled in a course. In his statutory declaration, the application confirmed that he was granted a student visa on 13 February 2017 to study a Bachelor of Business (Marketing) at Torrens University. At the hearing, he accepted that his enrolment in this course was cancelled on 14 August 2018. He stated that he had obtained enrolment in a Certificate IV in Commercial Cookery and a Diploma of Hospitality at New York College, however this enrolment was also cancelled. These courses were due to commence on 10 July 2017 and 10 September 2018 respectively. He admitted that he was now aware that he was also breaching a condition of his visa by not maintaining enrolment in a course at the same level or higher than the Bachelor degree for which he was granted the student visa in the first place. He stated he is not currently enrolled in a course because he believes that the bridging visa E that he is currently on does not permit him to study.
On the evidence before the Tribunal, the applicant was not and is currently 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
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
The applicant is a 23-year-old man from India. He was granted a student visa on 13 February 2017 to student a Bachelor of Business (Marketing) course at Torrens University, which he commenced on 20 February 2017. His migration agent submitted that the applicant found this course difficult and that it was no longer his passion or ambition to work in the field of business and marketing. The agent explained that he then changed his enrolment in June 2017 to the Certificate IV in Commercial Cookery and Diploma of Hospitality Management.
The applicant’s agent submitted that he commenced the Certificate IV course on 10 July 2017 and that prior to his enrolment being cancelled in this course, he had intended on going on to complete the Diploma course.
At the hearing, the applicant said that he came to Australia to study the Bachelor degree, however he was never interested in business or marketing. He said his agent in India had forced him into this course because the agent would get commission for student’s undertaking this course. He was told that he could change courses after he arrived in Australia.
He explained that his agent (a previous agent, not the registered migration agent acting on his behalf in this application) told him to enrol in the Certificate IV in Commercial Cookery and Diploma of Hospitality so that he could stay in Australia and not breach his visa. He said what he was really interested in was aviation studies. He said that he wants to enrol in an aviation course to become a pilot. He said there are aviation courses available but there is a lot of competition and the courses are not as good as in Australia.
The Tribunal accepts that the applicant came to Australia for the purpose of undertaking study. However, it is not persuaded that the applicant has a compelling need to remain in Australia. Despite enrolling in the Bachelor of Business course, the Certificate III in Commercial Cookery and the Diploma of Hospitality, he interested in completing these studies. He states that he is interested in studying aviation but has there is no evidence that he has made any attempt at enrolling in such a course.
Accordingly, the Tribunal gives this some weight in favour of cancelling the visa.
The circumstances in which ground of cancellation arose
It was submitted by the migration agent that the circumstances in which the ground for cancellation arose were circumstances beyond their client’s control. On 30 September 2017, after his enrolment in the Bachelor course was cancelled, the applicant sustained an injury to his back and he attended the emergency department at the Robina Hospital. It was submitted that this injury persisted and prevented the applicant from attending class and fulfilling daily tasks such as travel to and from school. It also prevented him from sitting for prolonged periods such as sitting in class.
The agent stated that the applicant informed the education provider about his back injury, but his enrolment was cancelled. The applicant’s health was not improving and in July 2018, the applicant developed severe abdominal pain and stress. The agent stated that the applicant’s health has improved, and he now feels able to return to his studies. The applicant advised his agent that he wants to complete his courses as it has always been his intention from the start to undertake his studies and complete them.
This last submission is contradicted by the applicant’s own evidence at the hearing when he stated that he only enrolled in the hospitality courses at New York College because a previous agent told him to do so in order to avoid breaching the conditions of his visa. He does not appear interested in completing these hospitality courses, since he advised the Tribunal that he now wants to study aviation to become a pilot. Unfortunately, there is a disconnect between what the applicant told his current migration agent and what he told the Tribunal.
In the applicant’s statutory declaration set out the reasons why he has not been enrolled in a registered course of study:
I was unable to continue with my studies due to a back injury which I sustained on 30 September 2017. I presented at Robina Hospital with my injury. Due to this injury, for the next 8 months (approximately), I was unable to adequately fulfil daily tasks such as travelling to and from university and sitting for long periods of time in class. Therefore, I could no longer physically attend university and continue with my studies. I notified the university that I am no longer able to continue my studies for the time being due to the situation I was in, however, I was still being charged for my classes and they only cancelled my confirmation of enrolment (COE) in May 2018. During this time, I was also suffering from immense stress and abdominal pain, which I also seeked [sic] medical advice for. I was stressed out due to the back injury, I could no longer study and work, whilst I was living away from my family. I had to make ends meet with the funds that I had despite not working, and still having to pay for classes which I could not attend, this had a huge impact on my physically, mentally and emotionally.
By the end of 2018, my back injuries were starting to get better as I was adhering to my medication and mild exercise regime. However, I was unable to continue with my studies as my COE was cancelled by the New York College. They threatened to complain about me to authorities regarding my situation which made me fearful of continuing my studies not only with them, but with other universities and high education facilities. Since then, I have seeked [sic] legal advice and have been told that they have no grounds to complain about me as I had a justified reason for not being able to attend my classes and fulfil my qualifications – due to my back injury. As previously mentioned, I am now in the capacity, mentally, physically and financially to continue with my studies and complete my qualifications as a I endeavoured to do when I left India in February 2017.
At the hearing, the applicant while the letter from the hospital stated he had injured his back when bending over to tie his shoelace, he had in fact injured his back at work collecting trolleys at a supermarket. His employer had told him not to blame his work on his injury. He was worried about his ongoing employment, which is why he lied at the hospital. He said after leaving the hospital, he did not attend any elsewhere for any other medical treatment in relation to his back. He stated that he remained at home for the next 2 months and was feeling very stressed. He said that he did not provide his college with the letter from Robina Hospital because they did not ask him for any medical evidence
He also stated at the hearing that he was unable to work and his expenses were being covered by his family in India. He stated that he never returned to his work pushing trolleys and was unable to work for 2 months after injuring his back. However, since then he has had several jobs. He stated he had various jobs through a contractor from around May 2018, which included 1 month as a cleaner, 1 month as a gardener and also some time washing cars at Suburu. The contractor wanted him to work more than 20 hours per week, which he could not do due to the conditions of his visa. He did not continue work for this contractor.
He then worked as a cook at Red Rooster for 2 months, however his licence was suspended which meant he could not drive to work. He confirmed his licence was suspended for loss of demerit points, which he attributed to a friend borrowing his car and then refusing to take the points for him. When he got his licence back, he worked as a UberEats delivery driver and also as truck driver for around 7 to 8 months. His most recent job was as a cleaner again, which he did for around 3 months until around February or March 2020. He confirmed that he is not working at present.
The applicant claimed that he was a victim of incorrect advice provided by his previous migration agents.
He was able to return to India to visit his grandmother for 3 weeks, which meant sitting on a plan for a several hours.
The applicant stated that he was prescribed Somac in July 2018 for his stomach pain, which was partly caused by stress. He also underwent blood tests around this time. Both the pathology request and prescription were provided to the Tribunal. However, by this stage, the applicant’s enrolment at New York College had been cancelled. He had also been able to continue working so it does not appear that this stomach pain interfered with his ability to work.
The Tribunal notes that the applicant injured his back in September 2017. He then stated that he could not work for 2 months, but then started working in various jobs including as a cleaner, gardener, car washer and delivery driver. All of these tasks, save for the delivery driving, are labour intensive jobs that involve movements that use the back including bending, pushing, pulling, lifting etc. According to his evidence, the applicant would have been able resum work in around November 2017 (being the 2 months after the injury as per his evidence about returning to work). He says he started working as a cleaner in May 2018. This is at odds with his evidence that his enrolment was cancelled in May 2018 because he was unable to travel to work or sit in class. If he was able to work, then there is no reason why he could not attend to his studies. He was also working and earning money, which is also at odds with him stating that he had no way of paying the tuition fees but that his family was covering his expenses for him.
The Tribunal considers that it is the responsibility of a student to provide their education provider to request deferment of their studies if they are unable to attend class for an extended period of time. That involves providing material that supports their request. In the case of the applicant, if the applicant was unable to attend class due to his back injury, the onus was with him to provide his college with medical evidence that explained what his medical condition was, why he was unable to attend class and for how long. It is not up to an education provider to ask for specific material.
As to his explanation about being a victim of incorrect advice from his migration agents, the Tribunal does not accept that this adequately explains his failure to maintain enrolment in a registered course of study. The applicant was the student and he could choose to enrol in a course that interested him. It would be pointless to study a course that he was not interested in, which appears to have been the case for the applicant. If he was not interested in studying either business or hospitality, then he did not have to enrol in those courses.
In light of the above circumstances, the Tribunal gives this significant weight in favour of cancelling the visa.
The extent of compliance with visa conditions
In addition to not complying with condition 8202(2)(a), the applicant has also breached condition 8202(2)(b) by not maintaining enrolment at the same level or higher than the Bachelor course for which he was granted the student visa. Accordingly, some weight is given in favour of cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
It was submitted by the migration agent that the cancellation of the applicant’s student visa would bring significant financial and emotional hardship to him and his family members. The agent stated that the cancellation of his visa would prevent the applicant from completing his studies and pursing his career in hospitality. The applicant had advised his migration agent that his family had invested a great deal for him to pursue his studies in Commercial Cookery and Hospitality Management.
At the hearing, the applicant agreed that he was suffer financial and emotional hardship if he were not permitted to continue studying in Australia. However, he also stated at the hearing that his agent had enrolled in the cooking and hospitality courses so that he could remain in Australia and not breach his visa. He said that he is actually interested in aviation and wants to study to become a pilot.
The Tribunal does not accept that cancelling the visa would mean that the applicant could not complete his hospitality studies because the applicant himself has no interest in this. What he really wants to do is study aviation, which he has never done in Australia or India. The Tribunal also does not accept that the applicant would suffer emotionally if he were unable to complete his studies. The applicant is not appear interested in completing his Bachelor degree or the hospitality courses. He offered a vague interest in studying aviation instead, but the Tribunal’s impression of the applicant in his evidence is that he does not appear to be really invested in any course of study.
However, the Tribunal does accept that the applicant’s family would suffer financially and emotionally if he has to return to his home country without any qualification. Accordingly, the Tribunal gives this a very small amount of weight in favour of not cancelling the visa.
Past and present behaviour of the visa holder towards the department
There is no evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
This is not applicable.
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
The applicant gave no evidence about any legal consequences for him, nor did he make any submissions about this.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa. While the applicant could make another student visa applicant offshore, she would not be permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from being granted a further visa for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.

The Tribunal gives no weight against cancelling the visa under this consideration.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. The applicant has not made an application for a protection visa, or any other type of Australian visa. Nor has the applicant or his representative raised any concern about any barriers that would prevent him from applying for another type of Australian visa. Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
Considering the circumstances as a whole, the Tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa. In reaching this conclusion, the Tribunal has found that the applicant’s purpose for staying in Australia is not for study, that he lacks a compelling need to remain in Australia, and the extent of his non-compliance is poor. Furthermore, the Tribunal does not accept that the injury and illness sustained by the applicant meant that he was unable to study but that he was able to continue working various jobs. Accordingly, the Tribunal finds that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Elizabeth Tueno
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

[2020] AATA 2785

1 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction

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