Multani (Migration)

Multani (Migration) [2021] AATA 2650 (1 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harpreet Singh Multani
CASE NUMBER:  1932682
HOME AFFAIRS REFERENCE(S):          BCC2019/3284525
MEMBER:Joseph Lindsay
DATE:1 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Statement made on 1 June 2021 at 11:43am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not maintain enrolment in a registered course at required AQF level – breached condition 8202 – failure to approach the Department about his issues – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 November 2019 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant attended a hearing by audio with the Tribunal on 25 May 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
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
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)(b) 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 Qualifications 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 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 – Master’s Degree; 10 – Doctoral Degree.
The Tribunal then put to the applicant that he had provided the delegate’s decision to the Tribunal. In respect to the delegate’s decision, the applicant made admissions that the information in the decision record was correct.
In the hearing, the Tribunal put to the applicant that the information in the decision record indicated that he had not maintained enrolment at required AQF level since 22 October 2018. In response, the applicant indicated that he had not maintained enrolment at required AQF level since 22 October 2018.
Accordingly, 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) of Schedule 8 to the Regulations and the Tribunal accepts that there are grounds to cancel the applicant’s 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 as to why he failed to remain enrolled in his Master’s degree.
The Tribunal referred to the written submissions that the applicant provided prior to the hearing in which he stated:
I, hereby, wish to take the opportunity to present my case in front of AAT for review and explain the reasons that made me change my study courses of lower AQF level which led into my student visa cancellation due to breach of student visa condition.
I came to Australia in 2016 on student visa with high hopes of completing Master of Information Technology from Flinders University, I started my course on 29/02/2016 and very soon realized that study system, assignment types and assessment criteria all were completely different than India. In addition, I was also new to the country, culture having no friends and family around. I found very hard to cope and failed all the 4 units in the first semester. But I was under immense pressure from my family who has not only invested their hard-earned money into my education but also their hopes that their son would perform well in his studies in Australia. So, I kept going and started working even harder in second semester and somehow cleared two units. I was still struggling and then family problems back home with very sick and ailing grandmother, tensed mother and brother added to my failure of all units third and fourth semester. By then I was giving up and wanted to go back home.
I started talking to my housemates about my problems in understanding course contents. I was suggested to change the course to Master of Business Administration. I went to few colleges to explore that option and compared the course contents. I was struggling enough in my present course and I have also wasted so much time and money I was desperate to give it go and hence I joined MBA (Advanced) from Torrens University on 19/02/2018.
I started the course and started working hard. But I also started realizing that I was not ready academically to take on master’s level studies with skills both in understanding the contents and in producing high standard assignments of the expected Master’s degree level. I was not doing well and therefore I again failed in the first semester.
It was the turning point for me. I just could not bear the pressure. My morale went down to ground zero and I felt like a complete failure. This time it was paramount for me to explain the situation to my family and become very open with them about my academic skills level and how I just could not do masters level course. It was simply too hard for me to do the course.
I asked for their permission to come back home. They were not happy with my decision. They just did not want me to come back empty handed. They asked me to explore more and search for other options. Then I came in contact with one of my Chinese classmate who advise me not to give up rather start from somewhat easier study level that I can cope up with and slowly building skills for the language and the Australian study system. He told me that he went through the same situation and as Rome was not build in a day likewise, I would also not be able to pass degree level in few days or months.
I struggled so much and was under such stress that at one time I started drinking too much to cope with the stress. It did not help and made the situation even worse. My bad results, pressure of paying heavy fees to repeat the subject, around $3,300, not getting anywhere with my studies, wasted two years of life and not completed the degree for which I came to Australia, I was kind of lost my mind thinking that what I have done to myself and to my family.
I hereby wish to admit that by now I knew my limits and my inner strengths, my English language skills, my academic capabilities and academic standard of higher degree and I would not be able to do degree level studies until I start slow and build up with time. I also admit that it was a big mistake choosing master’s degree level course at first place from India but believe me there the picture is completely different. Back in India, we have no resources to give us the idea of level of studies and expectations from students and the atmosphere the students live and the hardship they face in the beginning. What we are told and what we see on the websites studying abroad is quite lucrative to come. However, the benefits surely are immense studying in Australia because today’s job market welcomes and prefer oversea trained candidates and offer handsome salaries as compared to candidates who are locally trained in India.
I also request you to please consider the fact that I neither have enough time nor enough money to pay every time to resist in the assignment on failing because I have huge responsibilities back in India to look after my family financially and morally as well. When I decided to go back and explained the difficult situation here in Australia, my parents also suggested not to give up but do the course which I can finish in time and choose the subjects I have flair with and which I find bit easier to understand.
So, to give my academic journey a new direction, I went to Durban International College to enquire about their courses and finding solutions to my plight. I was advised that if take up Certificate III and IV in commercial cookery it will lead to Diploma in Hospitality and then Bachelors of Tourism and Hospitality Management with Academics Australasia Polytechnic.
I had no clue that going for lower-level courses would breach my visa condition as I was under the impression that the courses, I would take will eventually lead to Bachelors level. And hopefully by then I would be prepared and would have gained substantial academic skills to do Master’s degree.
Respected member, I would like you to consider the facts that I like to do study, but I am bit slow as compared to other normal students. With my hard work I would improve with time, but the present situation is like jumping from ground to the roof having no stairs and every time I try but fail. The penalty is precious time and huge amount of money.
My visa got cancelled because I chose to do lower-level course as it was extremely hard for me to do the Degree course. First, I was shocked to see visa cancellation letter from the department, and I was only given 7 days to respond. I was not advised properly that my visa would be cancelled if I would enroll in lower courses other than master’s degree. But here I would like to say that even if I knew I would still have chosen to do chosen lower-level courses because I know that I would be able to pass and complete the courses thereby improving my academic skills to do Degree courses in future. However, I would have applied for proper student visa application for doing lower AQF level courses well in time.
I kept on studying even after the visa cancellation (as I still had study rights) thinking that the skills I am gaining are important for my future academics and I might be able to complete the course during decision process. I have already completed Certificate III in Commercial Cookery and currently studying Certificate IV in Commercial Cookery. I am also working part time, 20 hours per week, with Australia Post as delivery driver.
I also request you to consider the fact that due to some family issues, I have been given only few more years to study abroad. My brother and his family are living in Italy and are Italian citizen. Therefore, I wish to go back to be with my widow mother. I lost my father when I was very young, but my grandparents helped my mother to raise us. Unfortunately, we lost them too few years ago. So, my mother is all-alone in India. She just wants me to finish my studies and show her my completion certificates from Australia and make her proud.
Therefore, considering my above stated situation, I request you to please giving chance the students like me who are not that smart but have strong zest to study and make my family proud back home. I request you to please do not take away my chance to show my capability with time and effort and show improvements.
In the hearing, the applicant gave evidence that there had been deaths in the family, but these family deaths occurred years ago.
In the hearing, the Tribunal asked the applicant if he believed that it was his responsibility as the visa holder to abide by the conditions of his visa, and in response he said “yes.” The Tribunal asked the applicant if he had approached the Department about his problems, and in response he said “no.” The applicant said that he had trouble with his Master’s course but the difficulties continued. The applicant made admissions that he had not sought professional advice when he changed from the Master’s course to the Certificate III in Commercial Cookery, and in hindsight he had made a mistake. The applicant indicated that despite the difficulties he has just wanted to finish his cookery courses and then go back to India. He said he had plans to go to his brother in Italy.
In respect of the above, the Tribunal makes the following findings. The Tribunal accepts that the applicant experienced difficulties with his Master’s course and that he felt pressure from his family in respect to his studies, including an ailing grandmother, and tensed mother and brother. With respect to these matters, the Tribunal gives the applicant some weight in his favour. The Tribunal places low weight on the deaths of the applicant’s family members because they happened many years ago and do not appear to have had an overly significant influence on the reasons why the applicant encountered difficulties with his studies in Australia.
However, the Tribunal places heavier weight against the applicant in respect to his failure to seek professional advice when he changed from the Master’s course to the Certificate III in Commercial Cookery, and his failure to approach the Department about his issues. As he admitted to the Tribunal, the visa holder’s responsibility is to abide by the conditions of his visa.
The applicant’s personal circumstances are regretful. Nevertheless, as the holder of a student visa, the applicant is required to maintain compliance with his visa conditions, and the Tribunal places high weight on this matter against the applicant.
In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances. Accordingly, the Tribunal places high weight on this information against the applicant.
The purpose of the visa holder’s travel and stay in Australia
The applicant said that his purpose in coming to Australia was to study. The Tribunal accepts that the applicant’s purpose in coming to Australia was to study and gives this consideration some weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant appears to have abided by his other visa conditions. Accordingly, the Tribunal gives some 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 spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. In response, the applicant indicated that he would be very emotionally disappointed and was concerned that he would have nothing to show for his time in Australia.
The Tribunal accepts that the applicant would be very emotionally disappointed and that there may be some disappointment caused to the applicant if his visa was cancelled and gives this matter some weight in the applicant’s favour.
Past and present behaviour of the applicant towards the Department
There is no evidence that the applicant has been uncooperative with the Department in the past. 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 in the applicant’s favour.
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 said 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 in the applicant’s favour.
Any other relevant matters
In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated that there are no other matters he wished to discuss.
Conclusion
In balancing the overall circumstances above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 500) 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.

[2021] AATA 2650

1 June 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice