Kumar (Migration)

[2019] AATA 6639

Kumar (Migration) [2019] AATA 6639 (5 December 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankush Kumar

CASE NUMBER:  1809087

DIBP REFERENCE(S):  BCC2017/3916943

MEMBER:Jason Pennell

DATE OF DECISION:  5 December 2019

DATE CORRIGENDUM

SIGNED:19 March 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The words “Statement made on 5 December 2012 at 12.58 pm” on covering page one should be replaced by the words “Statement made on 5 December 2019 at 12.58 pm”

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankush Kumar

CASE NUMBER:  1809087

HOME AFFAIRS REFERENCE(S):          BCC2017/3916943

MEMBER:Jason Pennell

DATE:5 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 5 December 2012 at 12.58 pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – genuine student – poor attendance record – non-payment of fees – unsatisfactory course progress – consideration of discretion – purpose of travel and stay – enrolment history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

application for review

1.This is an application for review of a decision dated 27 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa under s.116(1)(fa) of the Act on the basis that the applicant is not or is likely not to be a genuine student. 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 4 December 2019 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.Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the grounds set out in s.116(1)(fa) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

s.116(1)(fa) - not a genuine student

6.A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7.In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student.’[1]

8.For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists.[2] The prescribed matters are set out in the attachment to this decision.

9.The applicant was notified of the department’s intention to consider cancelation (NOICC) of his visa on 7 March 2018. The Notice invited the applicant to respond to the notice in writing. The applicant responded to the notice on 21 March 2018.

[1] MIMA v Hou [2002] FCA 574 per Conti J at [32].

[2] s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations)

1. At the hearing the applicant confirmed his response to the NOICC. He stated that he arrived in Australia to study Bachelor of Accounting commencing in November 2013. However, he stated that accounting was his weakest subject as such he enrolled in a Diploma of Business with Apex Institute of Education, Sydney (Apex) commencing 16 June 2014.The applicant claimed that he finished the Diploma of Business. However, a ‘Transcript of Grades Achieved’ from Apex[3] dated 13 February 2018 indicted that the applicant had not satisfactorily completed the Diploma of Business course. The transcript was put to the applicant during the course of the hearing in response to which he stated that he had subsequently completed the course. No evidence was provided that indicated that the applicant had in fact the course as claimed. However, ‘Transcript of Grades Achieved’ from Apex dated 13 February 2018 in relation to an Advanced Diploma of Management course commencing 18 May 2015 indicated that the applicant did satisfactorily completed that course.

   [3] Department file BCC2017/3916943@ f.5

2. The applicant’s evidence was that he then enrolled in a Certificate IV in Accounting leading to a Diploma of Accounting with Australian Harbor International College, Sydney (AHIC) commencing on 18 July 2016. The ‘Record of Results’ dated 18 July 2016 from AHIC show that the applicant failed to complete the course.  The applicant confirmed to the Tribunal that he had received several warning letters in 2016 and 2017 in relation to his failure to attend the course.  Finally, the applicant confirmed to the Tribunal that on 18 April 2017 the education provider cancelled his enrolment in the Certificate IV Accounting due to his failure to pay the courses tuition fees.  

3. The applicant then confirmed to the Tribunal that on 22 October 2017 he enrolled in Diploma of Human Resources at Apex commencing 13 November 2017. However, a ‘Transcript of Grades Achieved’ from Apex[4] dated 13 February 2018 indicates that the applicant did not satisfactorily complete the course. When the Tribunal put the Transcript of grades to the applicant he confirmed that he had not completed the course and that his enrolment had been cancelled as a result of his poor performance. In addition the applicant confirmed to the Tribunal that he had received several warning letters relation to his poor course attendance.

   [4] Department file BCC2017/3916943@ f.6

4. As a result the applicant confirmed to the Tribunal that he had not been enrolled in a registered course during the period from 18 April 2017 to 22 October 2017. In addition he confirmed to the Tribunal that as a result of not being enrolled in a registered course during this period he was in breach of his student visa conditions.  

5. The applicant claimed that in or about 2016 his parents had arranged for him marry in India. As a result he returned to India in December 2016 for approximately two months to get married. The applicant claimed in his response to the NOICC that it was hard for him to stay away from his newly married wife. As a result he became distracted and was not able to focus on his studies.

6. In addition in his response to the NOICC the applicant claimed that his wife became pregnant and wanted to live with her parents for support but his parents wanted her to live with them until the baby was born. He claimed that the conflict of views between the families caused him a lot of stress and in the relationship. The applicant’s evidence was that his son was born in September 2018.

7. However, the Tribunal notes that despite not being enrolled in any course the applicant did not return to India for the birth of his son.  Rather, the applicant returned to India for a period of two months in November 2017. That is after the time of having secured his enrolment in the Diploma of Human Resources course.  The applicant did not provide any explanation as to why he did not return to India for the birth of his son or the reason why he returned at the time the Diploma of Human Resources course had commenced.

8. In his repose to the NOICC the applicant claimed that he was worried all the time that his COE at AHIC had been cancelled due to him not performing well he stated that he was not proud of his performance. The applicant offered no response when it was put to him that he had not even attempted to complete the courses on circumstances where he had failed to pay the tuition fees and had not maintained satisfactory attendance at each course.

9. During the hearing he claimed that he was a genuine student and that he wanted another chance to be able to obtain his degree. However, it was put to him by the Tribunal that given his poor attendance record, his failure to pay the tuition fees that, despite the interests of his wife and child, he had not applied himself to the task of obtaining a Degree.

10. When asked if he was able to provide any assurance to the Tribunal that he would apply himself in the future to his studies the applicant did not respond.

11. The applicant did not provide any evidence to the Tribunal to substantiate his claims.

12. The Provider Registration and International Students Management Systems (PRISMS) indicate that the applicant was enrolled in Certificate IV Accounting and commenced the course on 18 July 2016 at AHIC. However, on 18 April 2017his confirmation of enrolment was cancelled by the education provider citing non-payment of fees. The applicant confirmed to the Tribunal that his enrolment in the Certificate IV Accounting was cancelled due to the non-payment of fees.

13. In addition by a letter dated 6 March 2018 AHIC reported that the applicant failed to achieve a satisfactory attendance requirement. The applicant failed to achieve the 70 percent attendance requirement. His overall attendance was 10 percent.  Finally, the applicant failed to achieve a satisfactory  percent course progress in relation to the Certificate IV Account ting Course as he did not meet the 50 percent pass or competent of the subjects in one term.  

14. The ‘Record of Results’ dated 18 July 2016 from AHIC show that the applicant failed to complete the course Certificate IV Accounting course. The results show that the applicant achieved a mark of ‘C’ (Competent) for one unit while he achieved a mark of NYC (Not Yet Competent) for 11 units of the course. Finally the applicants acknowledge to the Tribunal that AHIC provided several warning messages to the applicant for unsatisfactory attendance and for unsatisfactory course progress which were not responded to by the applicant.

15. PRISMS records confirm that the applicant obtained another confirmation of enrolment in a Diploma of Human Resource Management at Apex on 23 October 2017. The ‘Transcript of Grades Achieved’ from Apex[5] dated 13 February 2018 indicates that the course commenced on 13 November 2017.

    [5] Department file BCC2017/3916943@ f.6

16. Therefore, from 18 April 2017 to 22 October 2017 the applicant has not been enrolled in any course. There is no evidence that the applicant departed Australia. As a result the applicant has remained in Australia during this period  without undertaking any study in a registered course as required by the condition of his visa.

17. Therefore, based on the available documentary evidence and the evidence of the applicant it appears that the applicant:

    (a)has failed to follow his study plan as indicated on his student visa.

    (b)did not undertake any study in a registered course during the period 18 April 2017 to 22 October 2017.

    (c)did not have a valid confirmation of enrolment in a registered course during the period 18 April 2017 to 22 October 2017.

    (d)achieved an unsatisfactory attendance and unsatisfactory course progress record in relation to the Certificate IV Accounting course.

    (e)had not completed any registered course of study at the time he was granted his subclass TU 500 student visa on 2 November 2016.

18. Student visas are granted to applicants for the purposes of studying towards and achieving an educational qualification in Australia within a certain period of time. Despite claiming to have a wife and child in India, the applicant has failed to progress his study for the purposes of obtaining a qualification to care for his family. Therefore given the applicant’s lack of study, lack of attendance and lack of progress towards obtaining his stated qualification over a substantial period of time, in circumstances where he has remained in Australia on a visa solely for the purposes of undertaking study, indicates to the Tribunal that he is not a genuine student.  

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

Applicants purpose of traveling and staying in Australia.

1. During the course of the hearing the applicant stated that the purpose of him traveling and staying in Australia was to study. However, based on the evidence available to the Tribunal it appears that the applicant’s primary purpose for holding a student visa was not for the purpose of studying. Rather it appears that the applicant is not or is likely not to be a genuine student.

2. The applicant’s evidence was that he has been working for a number of years, on a part time basis, for a company renting bouncy children’s bouncy castles. The Tribunal put to the applicant that, given his lack of attendance and his general lack of progress in completing his studies it appeared that his primary purpose of being in Australia was not to study as claimed but to remain in the country on a permeant basis. The applicant did not respond. 

3. Therefore, in the absence of any reasonable explanation by the applicant for his poor course attendance record and his failure to satisfactorily complete his study plan as detailed in his student visa application, the Tribunal does not accept that the reason the applicant travelled to Australia was not to stay on a temporary basis for the purposes of study.  As such, the Tribunal gives no weight to in relation to this consideration in favour of the applicant.

Compliance with visa conditions

1. Based on the PRISMS records and based on the applicants own evidence, he was not enrolled in a registered course for the period from 18 April 2017 to 22 October 2017 in breach of the conditions of his student visa. In addition for the evidence available to the Tribunal it appears that the applicant is not or is not likely to be a genuine student. . As such the tribunal considers the applicant’s non-compliance with his student visa conditions to be significant. Accordingly, the tribunal give little weight in relation to this matter in favour of the applicant. 

The degree of hardship that may be caused to the Applicant. 

1. The applicant’s provided a response to the NOICC in which he claimed that his visa not be cancelled as he will not be able to face his parent’s and will be a disgrace to them and his wife.  The tribunal accepts that the applicant would suffer a degree of embarrassment as a result of having failed to complete his course of study.

2. However, when asked by the Tribunal why he did not want to have his student visa cancelled the applicant stated that he could not return home because he would be laughed at by his family and friends because he had short hair. The applicant did not offer any reason why he would be laughed at as a result of having short hair. 

3. In any event accepting that he would be laughed at as claimed and that he would be considered a disgrace by his parents and wife the Tribunal finds that he would not suffer a degree of hardship that would constitute a reason not to cancel his visa. As such the Tribunal does not give much weight in favour of the applicant in relation to this consideration.    

The circumstances in which the grounds for cancellation arose

1. The circumstances in which the grounds for cancellation of the applicant’s visa arose are detailed above. Based on the evidence available to the Tribunal and the applicant’s oral testimony, it appears that the applicant primary purpose for holding a student visa is not for the purpose of study and that he is not or is likely not to be a genuine student.   

2. Accordingly, the Tribunal gives no weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

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

1. 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 the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no 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.

1. The circumstances of this case are such that they would not engage Australia’s international obligations under the Convention of the rights of the Child (CROC). The applicant’s wife and child remain in India and as such he would be able to be reunited with them on his returns to India.

2. Accordingly, the Tribunal places no weight on this consideration in the applicants favour. 

Mandatory legal Consequences.

1. If the visa is cancelled the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.

2. In addition the applicant will be subject to ss.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 as a result of cancellation. However, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.

3. The Tribunal gives some weight to this consideration in the applicants favour.

Other relevant factors

1. 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. 

2. Therefore having considered the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

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

Jason Pennell
Senior Member

ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

…

(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

(a)because of the conduct of the holder; or

(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.