Nagi (Migration)

[2019] AATA 2416

Nagi (Migration) [2019] AATA 2416 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. Avtar Singh Nagi

CASE NUMBER:  1823455

HOME AFFAIRS REFERENCE(S):           BCC2018/2307262

MEMBER:P. Adami

DATE:2 July 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 02 July 2019 at 1:26pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – mother’s ill health – failure to seek deferral – significant period of non-compliance – 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 8 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course in breach of condition 8202(2) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The delegate considered that the factors against cancellation did not outweigh those factors in favour and cancelled the visa. A copy of the delegate’s decision was provided to the Tribunal.

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 is a 21 year old Indian national who arrived in Australia on 2 March 2017 to study a short English course, and then to study a Bachelor of Business at La Trobe University. The applicant transferred to Stott’s College to complete the Bachelor of Business, given the cheaper tuition fees.

5. The applicant appeared before the Tribunal on 28 June 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The Tribunal has had regard to the oral evidence of the applicant and all the information and documents submitted by the applicant.

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 (the Regulations). If the applicant has breached that condition, under s116(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 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).

9. The applicant was sent a Notification of Intention to Consider Cancellation (NOICC) letter on 31 July 2018. The Tribunal has not received a response to this letter from the applicant.

10. As set out in the delegate’s decision, the Provider Registration and International Student Management System (PRISMS) indicated that the applicant was not enrolled in a registered course from 2 November 2017. The applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from 2 November 2017 until the date of cancellation on 8 August 2018. At the hearing the applicant conceded that he had not been enrolled in a registered course for this period.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for this period. Accordingly, the applicant has not complied with condition 8202(2) and the visa is liable to cancellation under s116(1).

    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. 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’.

    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

13. The applicant confirmed with the Tribunal that the purpose of his travel and stay in Australia was to study a Bachelor of Business. The applicant initially completed a 14 week ELICOS course in about June 2017, before enrolling in a Bachelor of Business at La Trobe University. The applicant then decided to transfer to Stott’s College’s Bachelor of Business course due to financial constraints.

14. The applicant explained to the Tribunal that in August 2017, his mother became unwell, and as a result of hearing this he felt like returning home. The applicant filed a medical certificate dated 20 June 2019 from Dr. Sudhir Mourya, physician and cardiologist in Indore, India in support of his claim about his mother’s ill health. The Tribunal accepts Dr. Mourya’s diagnosis that the applicant’s mother suffers from “hypertension with anxiety disordered and mind depression” “since [the last] two years.” The applicant also filed a haematology profile and serology report for his mother, both from June 2019.

15. In September 2017, the applicant returned home to visit his mother for approximately 1 month, returning to Australia in October 2017. The applicant paid the course fees required, but having returned for a couple of days, the applicant was informed his mother was again not well. The applicant explained to the Tribunal that it was his mother’s ill health that was on his mind. As a result of his ill mother, the applicant “felt down” and he was “not able to be social with friends”.

16. The applicant was speaking regularly to his mother, and in December 2017 booked a return flight to India, with a return date in January 2018. The applicant told the Tribunal that he cancelled his flights and as a result lost the purchase price of the tickets as they were non-refundable tickets. The applicant explained that it was as a result of his unwell mother and possible visa cancellation that may have resulted, that made him “feel down”.

17. The Tribunal is sympathetic to the applicant feeling concern at his mother’s ill health. The Tribunal does not consider that the applicant’s desire to complete a Bachelor of Business to be a compelling need for him to remain in Australia. The applicant arrived in Australia in March 2017 and completed ELICOS study. From 2 November 2017 when he became unenrolled to 8 August 2018 when the delegate made their decision, whilst the applicant was concerned about his mother whose ill health was outside his control, it is his failure to be enrolled that resulted in the cancellation of his visa. The applicant did not declare to the Tribunal that he had taken any steps to defer his studies or that he sought a deferral from studies on compassionate grounds.

18. The Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.

    The extent of compliance with visa conditions

19. The delegate considered the whole of the applicant’s study history. The delegate noted there had been some study undertaken, however the applicant’s period of non-enrolment was 9 months and consider this a significant period. This resulted in the delegate giving minimal weight to this factor in the applicant’s favour.

20. The Tribunal accepts that the applicant has not engaged in any other conduct breaching other visa conditions, and the Tribunal finds that the applicant has only breached condition 8202. The period of non-enrolment is significant and the Tribunal considers that although the breach of visa conditions is limited to condition 8202, condition 8202 is intended to reinforce the intention of the student visa, so that holders are able to enter and remain in Australia for the purposes of study.

21. The Tribunal gives this factor minimal weight in favour of the applicant’s visa being cancelled.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

22. The Tribunal asked the applicant about any hardship that may be caused if he is unable to complete his studies and the cancellation was to remain. The applicant stated that emotional hardship and financial hardship have resulted from the cancellation of his visa. The applicant explained to the Tribunal that financially, he lost his work rights, study rights and travel rights since his visa was cancelled. The applicant state that he worked approximately 32 hours a fortnight earning approximately $19 per hour. This allowed him to pays he rent out of his own money. The applicant stated that he now relies on his father, who has a transport business, to fund his living arrangements in Australia.

23. The applicant explained to the Tribunal that the emotional hardship he feels has in part been caused by the lack of travel rights, as he had been unable to travel to visit his mother. The applicant is desirous to complete his studies.

24. The Tribunal accepts that the applicant and his family may suffer some hardship if the applicant’s visa remains cancelled. However, the hardships are ameliorated by the applicant’s failure to proactively and positively manage his affairs in Australia. Had the applicant contacted his education provider or the Department about the hardship he felt he was under, as the Tribunal can reasonably expect given the applicant’s keenness to study in Australia, then such actions may have avoided the visa cancelation in the first place.

25. On the evidence before the Tribunal, the Tribunal finds that the emotional and financial hardships are not significant or onerous, and the Tribunal gives minimal weight to them in favour of not cancelling the applicant’s visa. The Tribunal considers that the weight attached to this factor in the exercise of discretion against cancelling the applicant’s visa is to be tempered given the applicant’s inaction in seeking a deferral of his study.

    The circumstances in which the ground of cancellation arose- whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

26. The applicant emphasised his mother’s ill health when he was asked to comment on this factor. It was the applicant’s mother’s ill health, as referred to above, which was the central reason advanced by the applicant as to him becoming non-enrolled, and which also explained some of the hardship he felt as a result of the delegate’s decision to cancel his visa. As noted above, the Tribunal is sympathetic that the applicant’s mother is unwell and that this has had some impact upon him, but it was the applicant who was obligated to ensure that his enrolment was current.

27. The Tribunal considers that the effect of his mother’s ill health and why the applicant allowed himself to become non-enrolled has not been adequately explained. The applicant did not provide the Tribunal any medical evidence, or other evidence other than his own oral evidence, demonstrating a causal link between his mother’s ill health and its impact on his own thinking or behaviour that caused him to become non-enrolled.

28. The Tribunal accepts that the applicant was and is concerned about his mother’s health. However, the Tribunal expects that a genuine student in the applicant’s circumstances would have been more proactive about maintaining the correct status as an international student in Australia. The applicant did not provide the Tribunal with evidence as to steps he took in resolving with his education provider about generally deferring his study, or discussions about relying on compassionate grounds. The applicant did not provide the Tribunal with evidence that he was incapacitated from taking the actions the Tribunal expects a genuine student to have made.

29. The Tribunal gives this factor significant weight towards the applicant’s visa being cancelled.

    Past and present behaviour of the visa holder towards the department

30. The applicant has not responded to the NOICC. The applicant however did attend the hearing. The delegate found that there was no evidence that the applicant had been uncooperative with the Department. The Tribunal asked the applicant if he had any response to this factor, and the applicant stated that there was no issue with the Department up to this point. The Tribunal accepts this.

31. The Tribunal gives this factor minimal weight against the applicant’s visa being cancelled.

    Whether there would be consequential cancellations under s140

32. There are no other persons whose visa would or may be cancelled under s140 of the Act. The Tribunal considers this factor is not relevant in determining applicant’s application.

    Whether there are mandatory legal consequences of a cancellation; whether cancellation would result in the visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Minister’s intervention

33. The Tribunal asked the applicant whether he had any comment on this factor. The applicant did not propose any consequences and the Tribunal considers that, like the delegate, the ordinary results may follow. The delegate noted that the cancellation of the applicant’s visa may result in the applicant becoming an unlawful non-citizen and may therefore be liable to detention and removal under the Act should he not voluntarily depart Australia.

34. The delegate also found that if the applicant’s visa was cancelled under s116 of the Act, the applicant will become subject to s48 of the Act which will result in the applicant having limited options to apply for further visas in Australia. The applicant would also be subject to the Public Interest Criterion 4013 with the effect that he may not be granted a temporary visa for a period of 3 years from the date of the cancellation.

35. The Tribunal finds that there are mandatory legal consequences, as set out in the delegate’s decision, which would impact the applicant should he not voluntarily return to his home country. The Tribunal considers that this factor weighs against the exercise of discretion in the applicant’s favour not to cancel his visa, as these consequences are the intended outcome of a finding that a breach of a visa should result in the cancellation of that visa. The Tribunal gives this factor no weight towards the visa not being cancelled.

    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

36. There is no information before the Tribunal that any international obligations would be breached as a result of visa cancellation. As a result, the Tribunal considers this factor not to be relevant in determining the applicant’s application.

    Any other relevant matters

37. When asked about whether there were other relevant matters he wished to raise with the Tribunal, the applicant emphasised that his mother’s ill health impacted on his study life, work life and social life. This aspect of the applicant’s application has already been set out and considered above. There were no other relevant matters raised by the applicant that required consideration by the Tribunal. As a result, the Tribunal considers this factor not to be relevant in determining the applicant’s application.

38. Having carefully considered the circumstances of the applicant and weighing them with reference to the above considerations, as a whole the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    P. Adami
    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.