Kumar (Migration)

[2019] AATA 2731

Kumar (Migration) [2019] AATA 2731 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Kumar

CASE NUMBER:  1718107

HOME AFFAIRS REFERENCE(S):           BCC2017/2187634

MEMBER:Stephen Conwell

DATE:3 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 April 2019 at 5:57pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolled in Bachelor of Engineering Technology (Civil) – changed to hospitality course for migration and visa considerations – enrolment in bachelor degree cancelled due to non-enrolment – work in uncle’s restaurant – application for Temporary Work (Skilled) and partner visas – no compelling circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 (Cth), Schedule 8, condition 8202, r 2.43(1)(la)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education 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 had not been enrolled in a registered course since 16 November 2016. The delegate went on to consider whether the visa should be cancelled and weighed the factors for and against before deciding to cancel the visa. 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 2 April 2019 to give evidence and present arguments. The applicant’s wife, Ms Rattanpreet Goyal also attended and gave evidence. Although an interpreter in the Punjabi and English languages attended the Tribunal hearing, at the applicant’s request, the hearing was conducted in English.

4. The applicant provided a copy of the delegate’s decision with his application for review.

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. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. 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.

9. The Tribunal notes that the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 18 July 2017 because it appeared that the applicant was not enrolled in a registered course of study since 16 November 2016. The applicant responded to the Department on 25 July 2017.  The delegate’s decision indicates that in his response to the NOICC the applicant did not state whether he agreed or disagreed with the grounds of calculation, however it seeks to explain the circumstances of the breach. The applicant claims that he believed that he was no longer the holder of a Student visa, having recently been granted a Bridging visa associated with another visa application. No other reasons for non-compliance were provided.

10. The applicant confirmed to the Tribunal at hearing that he had not been enrolled in a registered course of study since 16 November 2016 ­­­– a period of some nine months before the delegate’s decision to cancel his visa. The applicant said that he had arrived in Australia on 10 May 2014 on a Subclass 573 Higher Education Sector visa to study towards a Bachelor of Engineering Technology (Civil). Upon arriving in Australia he changed his enrolment to the hospitality stream, leading to a Bachelor of Hospitality Management. He stated that he completed the Diploma of Hospitality in September 2016, however on 16 November his enrolment in his bachelor studies was cancelled due to non-commencement of studies. The applicant confirmed that he has not been enrolled in a registered course since that date, however he requested that weight be given to his circumstances and that the Tribunal use its discretion and not cancel his visa.

11. Given that the applicant confirmed that he was not enrolled in a registered course of study from 16 November 2016, the Tribunal is satisfied that the applicant has not complied with condition 8202(2) and the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of the discretion to cancel the visa

    12.   Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

    13.   There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has 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’.

    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

    14.   The Tribunal received a submission from the applicant’s dated 23 March 2019 providing reasons why the applicant’s visa should not be cancelled. The submission is summarised as follows:

    ·The applicant confirmed that he came to Australia for the purpose of study;

    ·He started work at his uncle’s restaurant in August 2016 and completed his Diploma of Hospitality a month later in September 2016;

    ·He had received no warning or communication from his college alerting him to his non-enrolment. He was not aware that his Student visa was still current and had relied solely on the advice of his uncle and his migration agent;

    ·Due to his reliance on others to manage his migration affairs, the applicant’s enrolment in a bachelor course was cancelled on 16 November 2016, resulting in the applicant not being enrolled in a registered course of study from that date;

    ·In May 2017 he applied for a Temporary Work (Skilled) visa, with his uncle as sponsor;

    ·His response of 25 July 2017 to the NOICC was completed on his behalf by his agent.

12. In his sworn evidence at hearing the applicant stated that:

    ·he worked at his uncle’s restaurant from August 2016 in an unpaid capacity as he was receiving free board from his uncle at that time;

    ·he completed his Diploma of Hospitality in September 2016 but did not commence his bachelor studies as he was unsure whether his Student visa was still applicable since he’d also applied for a Temporary Work (Skilled) 457 visa through sponsorship from his uncle’s restaurant.

    ·he met his (now) wife in May 2016 and they married in a religious ceremony on 25 September 2017. The marriage was registered on 13 November 2017.  he then immediately applied for a Partner visa, with his wife (an Australian citizen) as sponsor;

    ·he acknowledged his responsibility for breaching his visa conditions and he regrets placing his trust and reliance upon his uncle and his migration agent;

    ·he requests that the Tribunal have regard to his honesty and his acceptance of responsibility for the visa breach;

    ·it will be very hard on him and his wife if his visa is cancelled;

    ·he is currently on a Bridging visa E, with no work or study rights, which has placed financial stress on his wife and on their life together.

13. The applicant’s wife, Ms Rattanpreet Goyal submitted a statutory declaration date 23 March 2019 to the Tribunal, stating that:

    ·the applicant’s breach of his visa condition was unintentional;

    ·if the applicant is required to depart Australia, that would have mental, emotional and financial consequences for the couple. This would be particularly hard on her as she is an Australian citizen and is employed in a part-time position. She is likely to lose her employment should she be required to travel overseas to be with her husband.

14. The applicant submitted no evidence of his studies in Australia, nor of his marriage, however the Tribunal is prepared to accept his sworn evidence that he completed a Diploma of Hospitality onshore in September 2016 and that he married Ms Rattanpreet Goyal in September 2017.

15. While the Tribunal acknowledges the applicant’s evidence regarding his intended purpose of travel to Australia, it was not persuaded by his explanation as to why, having come to Australia to study towards a Bachelor of Engineering Technology (Civil) he soon changed his mind and enrolled in cookery/hospitality studies. The Tribunal acknowledges that students may change their study fields for genuine reasons although it found the applicant’s evidence regarding his interest in cookery to be vague and generalised. The Tribunal finds it is more likely that the applicant changed courses from engineering to cookery/hospitality studies for migration and visa considerations.

16. The applicant claims that he relied entirely upon his migration agent and his uncle with respect to migration matters and believed that his sponsorship for a Temporary Work (Skilled) 457 visa would mean that he was not required to maintain a Student visa.  The delegate notes that there was a period of almost six months between the cancellation of his enrolment in a bachelor course and the date of application for a UC 457 visa.  Given the time lapse between cancellation of his enrolment and the application for a UC 457 visa, the Tribunal does not accept that the applicant was unaware that he was still the holder of a Student visa and subject to the conditions attaching to it.

17. The Tribunal finds that the applicant was not enrolled in a registered course of study for approximately nine months in breach of visa condition 8202; further that cancellation of his bachelor course enrolment on 16 November 2016 meant that he was no longer enrolled at the higher education sector level which visa condition 8516 requires him to maintain enrolment in. The Tribunal considers the applicant’s period of non-enrolment from 16 November 2016 to be a serious breach of visa conditions over a substantial period of time. 

18. The applicant told the Tribunal that he would like to return to studies and he has also applied for a Partner visa as his wife is an Australian citizen. He said that he wants to remain in Australia with his wife. 

19. The Tribunal notes with concern that having been granted a visa to Australia to study for a higher education engineering degree, the applicant’s actions, upon arrival onshore, appear to be motivated by migration and visa considerations; he promptly changed his course of study to cookery/hospitality. Upon commencing employment at his uncle’s restaurant in August 2016, he completed the Diploma of Hospitality a month later, in September 2016. However in November 2016 he did not commence his studies in the Bachelor of Hospitality, resulting in cancellation of his enrolment on 16 November 2016.  In May 2017 the applicant applied for a UC 457 visa with his uncle as sponsor.

20. Given these concerns, the Tribunal gives only minimal weight to the applicant’s claimed purpose for traveling to, and remaining in, Australia.

21. The applicant stated that he married Ms Goyal, an Australian citizen by religious ceremony in September 2017, and by registration in November 2017.  Immediately after his marriage, he applied for a Partner visa in order to remain in Australia with his wife. The applicant said that his uncle withdrew his sponsorship of the UC 457 visa upon learning of the applicant applying for a Partner visa.

22. The Tribunal finds that the applicant has a compelling need to remain in Australia in order to remain with his wife, an Australian citizen. However, this need is unrelated to the purpose of the applicant’s Student visa.

    The extent of compliance with visa conditions

23. The Tribunal finds that the period of his breach of condition 8202 and condition 8516 to be a considerable period of time, namely nine months. The applicant explained is that he was naïve and trusting of his uncle and migration agent who both assured him that his application for a temporary work (UC 457) visa was underway around the time of the cancellation of his bachelor enrolment. He further explained that he held an honest but mistaken belief that his application for the UC 457 visa ‘meant that there was no need for him to maintain his Student visa.

24. The Tribunal views this breach of condition to be serious, because one of the primary reasons for holding a Student visa is to be enrolled and to study, and he had admitted to doing neither for an extended period of time.  The Tribunal therefore gives this factor some weight towards the visa being cancelled.

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

25. The Tribunal asked the applicant if he or others would suffer hardship if the visa were cancelled. The applicant said that he did not want the visa cancelled as his wife would suffer emotionally and financially if cancellation was affirmed. The Tribunal notes that that the applicant is not working due to the visa restrictions of his current Bridging visa E and that his wife is employed in a part-time capacity and this work may be at risk if she sought leave in order to visit the applicant upon his departure from Australia.

26. The applicant’s wife said they have been together for almost three years and married for approximately 18 months. She said that cancellation of the applicant’s visa will cause hardship and strain on the relationship.

    30.  The Tribunal accepts that:

    ·if the visa is cancelled the applicant is placed at a disadvantage when applying for a Partner visa;

    ·a cancellation would limit the options for the applicant to remain onshore for three years;

    ·this would be a stressful period for the applicant and his wife and that they would experience some hardship.

27. The Tribunal finds that the hardship that would be caused to the applicant and his wife as a result of their separation if his visa were cancelled is a factor that weighs against cancellation of the applicant’s visa. However, the Tribunal finds that this is mitigated by the fact that shortly after their marriage the applicant applied for a Partner visa sponsored by his wife.

28. The applicant’s written NOICC response and his submission to the Tribunal does not address this criterion of hardship, however his wife’s statutory declaration states that cancellation of his visa would “have an impact on our relationship mentally and emotionally.” Aside from the hardship already considered above, the Tribunal accepts that the cancellation of the applicant’s visa will be upsetting for the applicant and his wife but, in the absence of further detailed evidence with respect to the hardship that cancellation would cause him or his family and noting that the applicant has already applied for a Partner visa, the Tribunal gives this ‘hardship’ criterion only limited weight.

    Circumstances in which ground of cancellation arose

29. The applicant’s response to the NOICC dated 25 July 2017 in which he claims to have been unaware that having applied for a UC 457 visa, he remained the holder of a Student visa and subject to its conditions. He states that he has been ‘duped’ by his uncle and by his migration agent who exploited his voluntary labour at his uncle’s restaurant.

30. The Tribunal has regard to the applicant’s explanations and responses at the hearing; it notes that the applicant applied for the UC 457 visa some five and half months after his bachelor studies were cancelled for non-commencement of studies. The Tribunal finds it reasonable to expect that the applicant would have been aware that by simply applying for a different visa does not of itself change his immigration status; at that time of applying for the UC 457 visa he was still the holder of a Student visa and subject to its visa conditions. The Tribunal notes that it is the responsibility of a Student visa holder to be acquainted with, and continue to satisfy, the Student visa criteria.

31. On balance the Tribunal does not accept that circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time; the Tribunal gives this factor significant weight towards the visa being cancelled.

    past and present behaviour of the visa holder towards the department

32. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal give this some little weight in his favour.

    if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

33. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

34. The Tribunal acknowledges that cancellation of the applicant’s visa would result in his being prevented from being granted a range of temporary visas, including Student or Visitor visas, for a period of three years by operation of condition 4013. It further notes that the applicant would be prevented from applying for many visas onshore apart from a limited range of visas, pursuant to s.48 of the Act. However the applicant is not prevented from applying for a Partner visa whilst onshore, and as noted earlier, he has already done so. Therefore the Tribunal gives this factor no weight.

    whether there would be consequential cancellations under s.140

35. Not relevant.

    whether any international obligations would be breached as a result of the cancellation

36. In this case it does not appear that this consideration is relevant and the applicant has not made any claims which would relate to this consideration.

    Summary

37. The Tribunal is mindful of the nine month period of non-compliance and having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to not cancel the visa.

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

    DECISION

39. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Conwell
    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.