Luchmun (Migration)

[2021] AATA 2709

Luchmun (Migration) [2021] AATA 2709 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avinash Luchmun

CASE NUMBER:  2003066

HOME AFFAIRS REFERENCE(S):          BCC2019/5316144

MEMBER:Meredith Jackson

DATE:10 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 10 June 2021 at 2:28 pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – unsatisfactory study record – mental health issues – family difficulties – 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

1. This is an application for review of a decision dated 13 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 (Cth) (the Act).

2.    The delegate cancelled the visa on the basis that the applicant, Mr Avinash Luchmun had not maintained enrolment in a registered course of study and therefore had not complied with his visa condition 8202. The delegate was satisfied the grounds for cancelling the visa outweighed the reasons for not cancelling.

3.    The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    The applicant appeared before the Tribunal on 9 June 2021 to give evidence and present arguments. 

5.    The applicant was represented in relation to the review by his registered migration agent.

6.    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

7. 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?

8.    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).

9.    In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full time registered course as required by condition 8202(2)(a); and the grounds to cancel the visa outweighed the reasons not to.

1. The visa under review was granted on the basis of the applicant’s enrolment in two registered courses, a Diploma and Advanced Diploma of Business to be studied between 2 April 2018 and 27 March 2020. He also enrolled in a Certificate III in Spoken and Written English, a preparatory course running from 21 August 2017 to 30 March 2018. On 22 November 2018, the enrolments in the two registered courses above were cancelled for non-payment of fees in the Diploma course and non-commencement of studies in the Advanced Diploma course. The visa was cancelled on 13 February 2020. The relevant period wherein the applicant was not enrolled as required, therefore, is between 22 November 2018 and the cancellation date of 13 February 2020, a period of more than 14 months.

2. The applicant does not dispute that he did not maintain enrolment in a registered course during the period referred to above; he claims that his circumstances were such in the lead-up to the cancellation that they led him to despair and a failure to cope.  

3. The Tribunal is satisfied the applicant was not enrolled in a full time registered course for a period of more than 14 months while he held the visa. Accordingly, the applicant has not complied with condition 8202(2)(a).

Consideration of the discretion to cancel the visa

1. 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.

1. The applicant Avinash Luchman came to Australia in August 2017 for the purpose of study. There was no other purpose besides studying.

2. The applicant has not claimed a compelling need to travel to or remain in Australia but wishes to undertake new studies in a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management between 5 July 2021 and 12 November 2023. The courses are full-time registered courses for which the applicant was issued a letter of offer on 4 June 2021, five days before the hearing. The applicant claimed in a submission that he has paid the first instalment of tuition fees.

The extent of the applicant’s compliance with visa conditions

1. The applicant claims he had always abided by his visa conditions and had informed the department of any changes in his circumstances. The Tribunal has no evidence before it that while he held the visa, until such time as he failed to maintain enrolment as described above, the applicant used the visa for purposes other than the basis on which it was granted. There is no evidence before the Tribunal that he may have breached other visa conditions while holding the visa or any previous or current visa. The Tribunal affords this some weight in his favour.

The circumstances in which ground of cancellation arose.

1. The cancellation arose because the applicant did not maintain enrolment in a registered course as required. In order to confirm the applicant’s enrolments and cancellations from the time the visa was granted on 11 August 2017; to confirm any relevant aspects of his academic history in Australia; and to identify any issues that may arise from other information in the applicant’s record in the Provider Registration and International Student Management System (PRISMS), the Tribunal provided the applicant with a copy of his PRISMS record prior to the hearing.

2. In the hearing, adopting the procedure in section 359AA of the Act, the Tribunal put the PRISMS record to the applicant, stating that it contained information relevant to his case. The relevance of the information was that subject to his comments or response, it would be the reason, or part of the reason, to affirm the decision under review. The Tribunal confirmed that the applicant had received the copy of the PRISMS record sent to him. The Tribunal provided him with time to consider the information. The Tribunal said if he needed more time, he could request it and the Tribunal would consider the request. He did not request more time and said he was ready to comment forthwith.

3. The information put to the applicant in the hearing is that PRISMS indicates he was last enrolled on 22 November 2018 in a Diploma of Business due to run between 2 April 2018 and 29 March 2019. On 22 November 2018 the applicant’s education provider cancelled the Diploma course for non-payment of fees. His second enrolment, an Advanced Diploma of Business to run from 1 April 2019 to 27 March 2020, was cancelled at the same time, in what appeared to be a consequential cancellation. The Tribunal asked whether he had attempted and part of the courses.

4. The applicant commented that he had commenced studying the Diploma of Business and completed two modules before he began struggling with personal issues. He said he could not attend class because he was homesick; then he was running short of funds and then the school would not let him study because he had not paid fees. That is where everything changed, he claims. Several things happened in succession, in that the company he had worked for in Mauritius changed leadership after his former boss died and they had a role in supporting him; his father was ill and needed to divert funds to his health costs. These events and others led to the applicant having a mental breakdown. Financially, he needed to ask for money or by June 2018, he could not pay his fees. His father’s health was bad, he had a hole in his kidney, so all the expenses became his. Then COVID hit and made everything more difficult. The college made everyone study online but he had only a broken laptop and no phone. He tried to sell his car but then it was stolen and the person who stole it threatened to kill him. Shortly thereafter, the visa was cancelled, adding to his woes. The applicant has not provided evidence to the Tribunal of his father’s illness, the alleged theft of his car, the alleged threats made to his life or any intervention by his education provider.

5. The Tribunal noted that after arriving in Australia on 11 August 2017, he was initially enrolled in an English course that ran between 21 August 2017 and 30 March 2018. The Tribunal asked if he completed the English course. He responded that he did complete it but he had experienced issues with the instruction; the provider told him they would send him his certification but he had never received it.

6. The Tribunal noted that PRISMS also showed that in an earlier period, between July 2007 and November 2009, he was enrolled in an Advanced Diploma of Electronics Engineering course ending on 30 November 2009. The Tribunal asked whether he completed the engineering course. The applicant said he had not, because he called the school and there was one subject being updated, so he did not complete. He confirmed he returned to Mauritius in 2010 where his father was having an operation to remove his kidney. While there, he claims he turned his mind to business studies after he got a job as a technician and his late boss told him that if he wanted a promotion, he would need management qualifications. This brought him to again try and study in Australia.

7. After his courses were cancelled in 2018, the applicant says he got a job in an Australian restaurant through a friend. That is when he decided to study hospitality, he claims. He said he realised that in Mauritius, the main income is from tourism, and when COVID is over things will go back to normal so he will be able to seek a job.

8. The Tribunal pointed out that his Bridging E visa appeared to allow both work and study, and yet he had procured a conditional letter of offer to study hospitality just five days before his hearing, which raised a question about why he had not attempted to study sooner. The applicant responded that he could not afford to study until now; his father has now retired and has retirement savings, so his father will help him out financially.

9. The Tribunal said that it had noted the delegate’s decision stated he not provided evidence of financial hardship and had not sought assistance from his education provider for a deferral before his enrolment was cancelled. The delegate also observed he did not access the complaints and appeals process offered by his education provider when he lost his enrolments. This also raised a concern for the Tribunal as to whether he had been genuinely trying to remain in a registered course and abide by his visa conditions. The applicant responded that at the time, he was not feeling well, he spent his time in his room, not going out, feeling depressed. So while he wanted to be motivated and go out, he felt he was having a mental breakdown and he would just isolate himself and not go anywhere.

10. He claimed that earlier this year, in January 2021 he attempted to end his life.  “I was feeling unable to go on with my studies and I am 37 years old this year, and I thought about everything that had happened to me, and I could not get back to normal because of setbacks such as COVID, I could not study, I had no laptop, I was homesick but I could not travel home, and, taking everything into consideration, how would I say this – it did not work for me. All I wanted was to change my environment, go out, meet people, study. (The day I tried to end my life) I tried to drink a lot of beer to commit suicide but I kicked a pole and hurt my leg. I was planning to drive fast and die. My friend called Police and they came to my house and called the ambulance and took me to hospital. The hospital helped me through all this, they kept calling me every day after I was discharged and that made me think.” The applicant provided an Ambulance account and an invoice from the Department of Health for emergency treatment on a “foot, ankle, leg or femur” in January 2021. A Police report of the incident has not been provided to the Tribunal.

Analysis

1. The delegate’s decision records that on 29 January 2020 a Notice of Intention to Consider Cancellation (NOICC) had been sent to the applicant about his visa, and while he had responded, he did not provide any updated information regarding his circumstances or intentions. The delegate observed that after he was made aware of the potential for cancellation, he had not attempted to correct the non-compliance by enrolling with any other education provider. The Tribunal asked why he had not taken action to try and avert the cancellation. The applicant stated that at the time, he was already depressed, he was spending a lot of time in bed, he was trying to sell his car to pay fees and it got really hard for him as he was financially in trouble.

2. The Tribunal has considered the applicant’s claims about the circumstances leading to the cancellation, with a view to whether they were beyond his control and therefore the Tribunal’s discretion should be exercised in his case. The Tribunal concludes his circumstances as described, are hazy and unsupported by evidence and they do not amount to a clear picture of what happened to him. The circumstances as he describes them, do not therefore, appear to explain his failures to stick at study and do not appear to have been out of his control. Rather, they tend to suggest that the applicant has not studied because he did not want to or feel the need to, and that he has constructed a narrative around a range of circumstances, most of them unsupported by evidence, to explain this delinquency. Some circumstances are supported, the Tribunal notes. He has paid part of the fees for each of his courses and has invested in his Australian education twice, as is shown by his study record. The Tribunal accepts that the applicant in early 2020 struggled with problems that affected his mental health, because he has provided medical evidence dated 3 February 2020 from treating physician Dr Melanie Wise stating that he had suffered health problems and family difficulties. These issues included, she states, his father’s illness, which had hampered his ability to study over the previous 12 months. The Tribunal noted, however that this dates the start of his health problems and difficulties to February 2019. The Tribunal put to the applicant that this appeared to be inconsistent with his evidence, because his courses were cancelled before that, in November 2018, and this pointed to his troubles unfolding somewhat differently. The applicant said there had been many contributing factors over time, his father had been ill with a hole in his kidney and funds had to be redirected away from his studies to his father’s health costs, and on top of that, he was depressed and homesick.

3. The Tribunal put to the applicant that his study record appeared to consistently reflect a failure to complete his studies, and this appeared to be the case with all the courses in which he was enrolled. The Tribunal said this was an issue, because the Tribunal was considering whether to exercise its discretion concerning the cancellation of his visa, and to do so it would need to rely in part on his new letter of offer and his claim that he is ready to study again and reshape his life. The Tribunal stated it had not made up its mind but was not entirely convinced that having failed to abide by his visa conditions previously, he would now do so if the visa were granted. The applicant responded by re-stating his claim that hospitality was a field in Mauritius where there would be many opportunities once the global pandemic passed, and his parents understood this and were prepared to support him. He stated: “I want a new future. I want to do this course, start afresh, I know I made a mistake but now I am motivated to finish. I am getting old enough to have something in my hand. I want to support my family as they are supporting me. My parents say they will support me, and the restaurant said he will help me to get experience as a sous chef while I am studying and getting my certificate.” The Tribunal has considered this statement but notes that while the applicant has expressed an honourable intention about his future, there is no clear evidence before the Tribunal that completion is probable or even likely. Further, having not studied for what is now two and a half years since his last course was cancelled, when it was open to him to do so, the Tribunal is not convinced that five days before the hearing, he found the will and resources to study again. The Tribunal concludes the offer was procured solely for immigration purposes.

4. The Tribunal having considered the circumstances in which the cancellation arose, and considered the applicant’s claim that he is ready to mend his ways, concludes that a lack of personal responsibility and diligence, rather than the wide-ranging circumstances he describes, were the reasons why, in the end, he failed to abide by his visa conditions. In forming this view, the Tribunal has taken into account the applicant’s difficulties with his health and his father’s health, and noted that he has provided some evidence of having suffered mental health issues and a damaged limb requiring hospitalisation. The Tribunal is not satisfied however that the claim of an attempt at suicide over his troubles is convincingly made out. The vagueness and variety of his claims, which range from damaged limbs to car theft, from a death threat by the thief to a hostile branch of his family spreading falsehoods about him, a claim examined below, tend to undermine his argument that his health and financial difficulties were such that his circumstances got beyond control. Nevertheless it affords his health issues some weight.

5. The Tribunal having carefully considered the issues, and those factors it can weigh in his favour and against him, finds there is insufficient evidence that the applicant’s health and issues within his family prevented him from rectifying his enrolment breach, on balance, the Tribunal weighs the circumstances in which the cancellation arose against him.

The degree of hardship that may be caused by cancellation

1. The applicant claims he will suffer considerably if he goes back to his home country. He claims credibly enough that the impact of the pandemic would mean no work for him: having talked to his parents and friends he is well aware there are not many jobs at home. Further, he believes that soon Mauritius will go into full lockdown, because the numbers are going up. The Tribunal accepts his observations are credible in this regard. The applicant states that instead, if he stays here and his father helps with his studies, when he is finished in two years, he will be able to return and get a good job in hospitality; but he cannot do that now because he would not have any qualifications. The money he would be spending on his Australian education in hospitality would be well spent. He states he is currently working in a restaurant as a kitchen hand, getting experience for his course and his expenses can be met by his earnings; he shares accommodation with friends. He claims that he has no family to rely on in Australia and no reason to remain beyond studying, because while he has cousins here, he does not speak with them. “They have been calling my parents and telling them I am doing drugs and more, talking to my Mum saying I am a bad person out here.” The Tribunal accepts that the applicant, if refused the visa, will find life in his home country without any qualifications difficult, especially in current global conditions, and this will impact upon him financially, emotionally and socially. The Tribunal has taken this into account in considering his case for discretion, however concludes the applicant has had many chances to remedy his situation and has not taken steps to do so until a few days ago. The Tribunal notes that he has been given a letter of offer for new courses in the third field he has attempted and said he believes he will be issued a Confirmation of Enrolment for them in due course. His representative stated he was personally doing all he could to assist him to enrol again with the provider including driving him to the college for an interview. The applicant has not provided, more than 24 hours after that intended visit, evidence of confirmed enrolment. The Tribunal weighs the hardship the applicant will suffer in future if the visa is cancelled, somewhat in his favour.

Other considerations

1. There is no evidence before the Tribunal that the applicant’s past and present behaviour towards the department was less than compliant and cooperative. The Tribunal notes, below, that he responded, albeit sparsely, to the NOICC.

2. The applicant has not claimed, and there is no evidence before the Tribunal that the cancellation was caused by a relationship breakdown as a result of family violence.

Whether there are mandatory legal consequences

1. The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the likely impacts of legal consequences in the case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and, in those circumstances, will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia.

2. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately, he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore.

3. No information is before the Tribunal that a cancellation outcome would breach of any of Australia’s international obligations and the Tribunal affords this consideration no weight.

4. There are no other relevant issues before the Tribunal.

Conclusion

1. The Tribunal has carefully considered all the applicant’s claims and all of the evidence before it, and weighed its considerations in the case accordingly. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.