Lingala (Migration)

Lingala (Migration) [2022] AATA 1651 (17 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sai Swaraj Goud Lingala
REPRESENTATIVE:  Mr Kiran Kumar Ramini (MARN: 1806037)
CASE NUMBER:  2017261
HOME AFFAIRS REFERENCE(S):          BCC2019/2653534
MEMBER:Joseph Lindsay
DATE:17 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 17 February 2022 at 5:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Class TU) – Subclass 500 (Student) – enrolments at lower levels than visa condition – changes of subject area – discretion to cancel visa – stress, anxiety and depression – no diagnosis or treatment – no approach to education providers or department – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 375A
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 November 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 (Cth) (the Act).
The applicant participated in an audio hearing with the Tribunal on 20 December 2021 to give evidence and present arguments. The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PRELIMINARY MATTERS
The Tribunal has considered the certificate issued under s.375A of the Act and signed by the delegate on 4 December 2020. The certificate made reference to a document named ‘Cancellation referral - fraudulent documents’ contained in TRIM reference number CLD2019/30308696 of file number BCC2019/2653534. The Tribunal considered the certificate and finds that the certificate is valid. However, while the Tribunal accepts that the information may be relevant to the review, the Tribunal does not place any weight on the information referred to in the certificate. The applicant indicated that they were comfortable with the Tribunal’s decision in this respect.
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 (Cth) (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)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the 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).
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 Tribunal accepts that the applicant has provided a copy of the delegate’s decision record dated 19 November 2020 to the Tribunal. The applicant stated that the information in the delegate’s decision record dated 19 November 2020 was correct.
The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree.
Accordingly, the Tribunal accepts that the applicant was granted the visa to undertake studies in a Master of Information and Communication Technology course at La Trobe University from 05 October 2018 to 31 October 2020. Accordingly, the Tribunal accepts that, if the applicant had completed the course, this course would have provided him a level 9 (Masters Degree) AQF.
The Tribunal accepts that on 17 April 2019, the applicant’s enrolment in the Masters course was cancelled by the education provider due to a Deferment/Suspension with the comment ‘16-Apr-2019 Leave of Absence: Medical Reasons approved’.
The Tribunal accepts that on 17 April 2019, the applicant obtained a new Confirmation of Enrolment (CoE) for the same Masters course with the same education provider. The Tribunal accepts that this enrolment was cancelled on 17 September 2019 by the education provider with the comment:
‘Student has been Terminated for failing to enrol in a compulsory study period (Semester 2 2019) and has now converted to AWOL on the Student System. Student was advised of the Notification of Intention to report on 15 August 2019’.
The Tribunal accepts that on 19 September 2019, the applicant obtained an enrolment in an Essential English course at The Centre of Excellence, which he finished on 16 December 2019.
The Tribunal accepts that on 13 November 2019, the applicant obtained enrolments in three courses, namely Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis, and Diploma of Automotive Technology through Australian Careers Education. The Tribunal accepts that these enrolments were cancelled on 17 February 2020 due to ‘Non-commencement of studies’.
The Tribunal accepts that on 14 March 2020, the applicant obtained enrolments in three courses, namely Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, and Diploma of Hospitality Management, through Australian Careers Education.
The Tribunal accepts that the highest CoE the applicant held at the time his visa was cancelled on 19 November 2020 was for the Diploma of Hospitality Management, through Australian Careers Education and that, if he had completed the course, this course would have provided him an AQF level 5 (Diploma) qualification.
On the evidence before the Tribunal, the Tribunal finds that the applicant has not maintained 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. Accordingly, the applicant has not complied with condition 8202(2)(b) and that there are grounds for cancellation of his student visa under s.116(1)(b) of the Act.
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 circumstances in which the ground for cancellation arose
In the hearing, the Tribunal discussed the applicant’s circumstances. The applicant explained that he came to Australia in 2018 to undertake the Masters degree. However, the applicant found that he was not keeping up with the demands of the course. He indicated that he felt isolated being away from his family, and he found the adjustment to living in Australia to be challenging. The applicant said that he was 23 years old when he first came to Australia.
When the Tribunal asked the applicant what he did about his situation when he realised he was having difficulties with undertaking his Masters course, he explained that he saw a doctor about his situation because he felt that he was experiencing anxiety and depression issues. The applicant said he went to Mount Waverley Hospital and met with Dr Vijesh Soni on 11 April 2019. The applicant said that he explained his situation to Dr Soni. However, the applicant said that Dr Soni did not prescribe any medication for him. The applicant indicated that he has never taken any medication for any mental health conditions and that he has not been diagnosed with any mental health conditions.
The applicant said he did not approach the Department to speak to them about the problems he was experiencing.
The Tribunal considered the applicant’s response dated 15 November 2020 to the Notice of Intent to Consider Cancellation (NOICC) dated 10 November 2020. The applicant confirmed that the information he had provided to the Department was still accurate.
The Tribunal noted that the applicant had indicated that while his parents wanted him to have a professional career, he ultimately wanted to be a cook. The applicant said that when his father was unwell, he went back to India. He said he explained to his father that he wanted to be a cook and to open a restaurant. He said his father has given his support for the applicant’s decision to become a cook.
The applicant subsequently conceded that it was his responsibility to maintain compliance with his visa conditions, and to inform the Department when he found he was experiencing difficulties with his Masters course.
In respect of the above, the Tribunal makes the following findings.
The Tribunal accepts that the applicant may have experienced some stress due to not keeping up with the demands of the course, as well as feeling isolated and away from his family. The Tribunal accepts that the applicant found the adjustment to living in Australia to be challenging. The Tribunal accepts that while the applicant consulted a medical practitioner, he has never taken any medication for any mental health conditions and that he has not been diagnosed with any mental health conditions.
The Tribunal accepts that the applicant did not want to disappoint his parents and their wish for him to have a professional career. The Tribunal accepts that the applicant has decided to become a cook. However, the Tribunal is not satisfied that the applicant took reasonable steps to remain enrolled in a course at the specified AQF level (level 9) and therefore maintain compliance with his visa conditions. The Tribunal finds that it was reasonable to expect that the applicant to discuss his issues with the Department.
In balancing the evidence, the Tribunal accepts that various instances can impact on a person’s well-being from time to time. However, in balancing all of the circumstances, the Tribunal is not satisfied that the applicant took reasonable steps to abide by the conditions of his visa. The Tribunal is not persuaded that the applicant’s circumstances were beyond his control. Accordingly, the Tribunal places high weight on this information against the applicant.
The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal places no weight on this information.
The extent of compliance with visa conditions
The Tribunal accepts that the applicant appears to have generally complied with his other visa conditions. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that there may be some disappointment caused to the applicant and his family if the applicant’s visa was cancelled and gives this matter some weight in the applicant’s favour.
Past and present behaviour of the applicant towards the Department
The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140 of the Act
The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information.
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 indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.
The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal places some weight on this information in the applicant’s favour.
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
The Tribunal asked the applicant if he feared anything in returning to India. In response he indicated that he had no fears if he went back to India. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information.
Any other relevant matters
In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated there was no further matters to raise.
The applicant’s representative indicated that he wanted to submit financial information to the Tribunal for the purpose of demonstrating the applicant’s financial capacity to pay for his courses and to support himself. However, the Tribunal accepts that the applicant is likely to have the capacity to pay for his courses and to support himself. The Tribunal places some weight on this information in the applicant’s favour.
Conclusion
In balancing the circumstances above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Joseph Lindsay
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.

[2022] AATA 1651

17 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction