Kumar (Migration)

[2020] AATA 3491

Kumar (Migration) [2020] AATA 3491 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Kumar

CASE NUMBER:  2000545

HOME AFFAIRS REFERENCE(S):          BCC 2019/ 3388132

MEMBER:Wendy Banfield

DATE:14 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 May 2020 at 3:00pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled in a registered course of study –  changed enrolment to course at a lower level than registered course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), Schedule 4, Public Interest Criterion 4013; Schedule 8, Visa Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 January 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 applicant’s visa had been granted for him to study a Master of Business Administration (MBA), but he did not maintain enrolment at the required level. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 29 years old. He came to Australia on 5 May 2016 to study a Master of Business Administration. The applicant began studying a master’s degree but was unable to pass the course. He later discontinued higher education and changed his enrolment to certificate and diploma level courses which was a breach of visa conditions.

4. The applicant submitted the following evidence in support of his application for review:

   ·     Online printout of the applicant’s progress in a course in auto mechanics;

   ·     Applicant’s written statement dated 11 March 2020;

   ·     Subclass 500 visa grant dated 26 November 2018 in the name of Kadri Kell;

   ·     Applicant’s overseas student health cover;

   ·     Flight boarding passes in the name of the applicant and Ms Kell;

5. The applicant provided a response dated 29 November 2019 to the Department’s Notice of Intention to Consider Cancellation (NOICC) which has also been taken into account.

6. The applicant appeared before the Tribunal on 11 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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 (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, 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: 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 the applicant did not 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.

    The evidence indicates the applicant discontinued his studies in a master’s degree, AQF level 9 which was the purpose of the applicant’s visa grant. He enrolled in vocational courses that do not meet the conditions of his student visa. The applicant’s response to the Department’s NOICC included the statement: “Why I think the ground(s) for cancellation does(do) not exist” but goes on to state “I realised from letter that is NOICC that I have not complied with condition 8202 and I feel sorry from department that I have not complied with condition 8202”. In his written statement of 11 March 2020 and at the Tribunal hearing the applicant acknowledged he had breached visa conditions by not continuing a master’s course and enrolling in vocational courses. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course at the appropriate level. Accordingly, the applicant has not complied with condition 8202(2)(b).

    Consideration of the discretion to cancel the visa

11. 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

12. The applicant arrived in Australia as the holder of a student visa; he was enrolled in a Master of Business Administration and began studying the course. He discontinued studying in the higher education sector in January 2019. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

13. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant submitted he wants to obtain skills in Australia. He said there are a lot of automotive companies in India and he plans to apply for a job or start a business. According to the applicant, similar courses in India would be more theoretical.

14. The Tribunal considered the applicant’s evidence and notes he arrived in Australia to study a master’s degree based on holding a bachelor’s degree from his home country. At the time the applicant was planning to work for a multi-national company. Although the applicant claims he now wants to study and work in the auto industry, he has not demonstrated a powerful or convincing reason for needing to stay in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

15. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

16. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant claimed if his visa is cancelled all his studies in Australia will be lost. He reiterated he now wants to study automotive repairs which requires practical training and a Diploma in order to be qualified. Based on his written submissions, the applicant had claimed both that he plans to return to India to work in the automotive industry and that he will go on to higher education in Australia. The Tribunal considers that while the applicant has settled on a different field of study, he has not identified any significant hardship that would result from visa cancellation. Nevertheless, the Tribunal accepts there will be some degree of hardship due to cancellation of the applicant’s visa and places some weight in his favour on this consideration.

17. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

18. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did maintain enrolment at the required level, in breach of visa conditions. The applicant provided an explanation for his inability to study a master’s degree in Australia. In his written evidence and in-person submissions at the Tribunal hearing the applicant explained he had been in a relationship with a fellow international student, they were living together and planning a future. According to the applicant the couple travelled to India to meet his family in February 2018 and to Estonia in 2019 where the applicant’s partner was from. The applicant advised his partner wanted him to move to Estonia and while there he visited good universities. The applicant said he travelled back to Australia before his partner and later learnt she would not be returning which resulted in the relationship breaking down. He said he was then unable to pay college fees and cancelled his CoE.

19. In the applicant’s response to the NOICC and at the hearing he submitted that while enrolled in a master’s course in 2016, he had failed in his studies and transferred to another education provider. He encountered further difficulties due to not understanding the language and stopped studying in January 2019 after returning from overseas travel. The applicant explained his friends advised him to study a trades course, so he elected to enrol in auto mechanics because it was an interest of his since school and because he could not pay college fees.  The applicant submitted he is progressing in his certificate course with good grades.

20. The Tribunal accepts the applicant has provided some explanation for his circumstances. However, they were not beyond his control. When the applicant encountered difficulties with his post-graduate studies due to the language, or any other reason, he could have applied to change his visa to allow him to begin at a lower level. Regarding his relationship breakdown, it is understandable the applicant would have been upset by this, however, he chose to use his financial resources to travel to India and various locations in Europe with his partner which he admitted left him unable to meet the cost of his studies in Australia. The Tribunal is not satisfied the events outlined are adequate reason for the applicant to stay in Australia while failing to comply with the conditions of his student visa.  

21. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to 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. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

22. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

24. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

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

25. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. The Subclass 500 Student visa is not a permanent visa.

    ·     any other relevant matters

27. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

28. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.