Nakul (Migration)

[2020] AATA 3461

Nakul (Migration) [2020] AATA 3461 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kiran Bhatt Nakul

CASE NUMBER:  1921724

HOME AFFAIRS REFERENCE(S):          BCC2019/1535513

MEMBER:Mark O'Loughlin

DATE:16 July 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 16 July 2020 at 4:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – enrolment cancelled for unsatisfactory course progress – health problems – consideration of discretion – substantial breach – not beyond applicant’s control – 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 26 July 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 that apply to his visa and the grounds for cancelling the visa outweigh the reasons not to cancel it. 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 25 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Jaysheel Bhatt, who is the applicant's brother.

4. 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

   Grounds for Cancellation of the Visa

5. In the present case the applicant as the holder of a student visa agrees that he breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations).

6. 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)

7. In the present case, the applicant agreed that his enrolment was cancelled on 30 April 2018 and that he did not enrol in another course until 18 June 2019.

8. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course between 30 April 2018 and 18 June 2019. Accordingly, the applicant has not complied with condition 8202(2)(a).

9. The Tribunal finds that there is therefore a ground for cancellation of the applicant’s visa under s.116(1)(b).

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa and that a ground for the cancellation of the visa exists, 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’.

11. The Tribunal had regard to extensive documentation submitted by the applicant.

12. In addition to the oral evidence of the applicant and his brother, the Tribunal relied on a copy of the delegate’s decision dated 26^th of July 2019 and a statement made by the applicant dated 16^th of June 2019 and directed to the Department of Home Affairs.

13. The applicant also directed the Tribunal’s attention to several items of email correspondence between himself and various educational institutions including copies of some emails that were provided or re-provided after the hearing was closed.

14. The Tribunal will refer to those emails by date where they are relevant.

15. The applicant gave evidence that he came to Australia in 2012 and first studied a certificate 4 in Business leading to a Bachelor of Business and Commerce at Edith Cowan University in Perth.

16. He said that he did the certificate 4 then moved to Charles Darwin University in Darwin in 2016 or 2017 to do the Bachelor of Business and Commerce there.

17. He gave evidence that he was due to finish that course in 2019 but that he did not start well at Charles Darwin University and that he became ill.  He said that he fell sick in March 2018.

18. Much of the applicant’s evidence was directed to the issues of the reason for the cancellation of his enrolment in the Bachelor of Business and Commerce at Charles Darwin University, and the state of his health from late 2017 to the end of March 2019.

    Cancellation of Enrolment

19. The applicant said in his evidence that he went back to India in mid-March 2018 and had what he described as a complete health check there.

20. He said that he stopped studying in March 2018 when he fell sick, and that his CoE (“Confirmation of Enrolment”) was cancelled.

21. The applicant said that he told Charles Darwin University that he was on medication and that he had gone back to India. The applicant’s evidence was that Charles Darwin University gave him a timeframe to come back.

22. The applicant was asked whether the University gave him time off and he said that they did, although he went on to say that they told him he had to return before the course started in March.

23. He agreed that he did not return in time for the beginning of the course and Charles Darwin University cancelled his enrolment.

24. He was asked whether he had anything from the University stating that but he did not. He said he did have an email from the University saying that he had been too late in returning and that his enrolment would be cancelled.

25. He then said that the University told him that because he couldn’t return to University in time for the beginning of the semester, they would report him as being in breach of his visa.

26. The applicant said that at that stage he had done a year and a half of his course and was about halfway through.

27. He said that his academic performance until then had been fair and that while not very good he was not very bad. He said that he had failed a couple of units but that those failures did not contribute to the reluctance of the University to grant him leave to stay longer in India.

28. The applicant was asked what he did when he was told that the University had cancelled his enrolment. He said that he applied to continue his study at Charles Darwin University but that he was told that he was too late and that he was in breach due to not returning to study in time.

29. The applicant was asked whether he had evidence that the University told him they would not enrol him because he had not returned in time. The applicant asserted that that evidence was in the documents he had provided.

30. He was unable to direct the Tribunal to that evidence.

31. He said that he applied for reinstatement but was refused, although the international officer at Charles Darwin University told him that he may be eligible for enrolment at other Universities.

32. He said that he tried to enrol at Edith Cowan University, Griffith University in Brisbane, Queensland University of Technology and Central Queensland University.

33. The applicant’s evidence was that he attempted to enrol in June intake at all of those universities. The Tribunal notes that there is evidence of efforts made to enrol at these institutions.

34. The tribunal noted that an email from Nova Cadungon, senior admissions and project officer at Charles Darwin University (a copy of which had been provided to the Tribunal by the applicant) suggested that the applicant’s Confirmation of Enrolment had been cancelled due to unsatisfactory progress. The date of that email was not clear but it must postdate the cancellation of the applicant’s enrolment which was on 30 April 2018.

35. It was put to the applicant that being excluded for unsatisfactory progress appears to be a different thing to being excluded for failure to return in time for the start of the semester.

36. The applicant agreed that his academic progress had not been good, but said that he had still been studying although the university was not happy with his progress. The applicant also said that the University had advised him that if he did not start on time that would lead to unsatisfactory progress.

37. The applicant said that there was an email from the University setting that out, being an email dated 3 June 2018.

38. The Tribunal asked if there is a letter or email advising the applicant that his enrolment would be cancelled if he did not return in time for the beginning of the semester in March 2018.

39. The applicant said that there was an email from 4 March 2018, a copy of which he could provide.

40. The applicant was asked to describe what that email said and he indicated that it was from a person called Jarl who was the compliance officer at Charles Darwin University indicating that she had sent his email and supporting documents to the complaints manager, advising that his last day to lodge an appeal was on 1 February 2018, and indicating that there is nothing in the documentation he provided that was sufficiently compelling to warrant the acceptance of his appeal.

41. The applicant indicated that he would send a copy of that email after the hearing.

42. The applicant sent two sets of emails to the Tribunal on the evening of the day of hearing. Neither set of emails appear to include an email from Charles Darwin University of 4 March 2018 although there is one from 4 May 2018 which appears to be the email to which the applicant referred.

43. It does not support the applicant’s assertion that the University told him that he would be excluded if he did not return to study at the beginning of the semester in March 2018.

44. The Tribunal does not accept the applicant’s assertion that the University told him that his failure to start in March 2018 was the reason for the cancellation of his enrolment.

45. The email of 4 May 2018 clearly states “your exclusion status in CDU will still be upheld for a period of 12 months from the date of the exclusion notice and your CoE will remain cancelled for unsatisfactory course progress.”

46. The applicant’s evidence to the Tribunal was that he was told that if he didn’t start on time that would reflect on his academic performance. He does not support that evidence with any corroborative evidence despite his clear statement that he could.

47. The Tribunal finds that the applicant’s enrolment was cancelled for unsatisfactory course progress and is not satisfied that this was related to his failure to return from India.

    The Applicant’s Health Problems

48. The Tribunal asked the applicant about the health problems from which he said he was suffering at about the time of the cancellation of his enrolment.

49. He said he started feeling ill in about December 2017 and that in January 2018 he went to see a doctor in Darwin.

50. He said that he had an issue with his skin and that he also had the flu and he was told that they could be related.

51. He pointed out that in the documents he had provided a prescription which was for his skin. The Tribunal asked if he had anything from the doctor he saw in Darwin.  He said he had the prescription for antibiotics.  He did not have anything in the nature of a report from the Darwin doctor.

52. The applicant agreed that he was suffering from two conditions, a skin condition and a chest infection. He said that he was feeling uneasy which the tribunal understood to mean uneasy in his breathing.

53. He also said that he had a boil which he had been told could affect his immune system and that he should get a whole-body checkup. He said he stayed on medication for a week or two but was told to get a whole-body checkup.

54. He said that he returned to India to do that because his student health insurance cover did not extend to it.

55. He also said that he understood that the antibiotic that he had been given could help both the skin and the breathing condition.

56. He was asked when the breathing condition started and he said that it was at the end of 2017 not long before he returned to India.

57. He was asked if the doctors in Darwin found any evidence of a chest problem. He said that they did not.

58. He was asked whether it was the doctors in Darwin who told him that the antibiotics might be effective both for his skin condition and his chest problem. He said that it was.

59. His evidence was that the doctors in Darwin told him that the breathing problem could be a complication of the skin condition.

60. He said that he believed that they considered that if the skin condition was dealt with the breathing condition may ease.

61. The Tribunal put to the applicant the delegate’s observation in the third paragraph under the heading “the circumstances in which the ground for cancellation arose” that there is no reference to a chest infection and that the medication to which the prescription refers is not a chest infection treatment.

62. The applicant was asked whether the medication was related to his chest infection and said that he remembered that the Darwin doctor had said that it could be.

63. The applicant was asked why he didn’t get some corroborative evidence from that doctor in the circumstances. The applicant said that he should have.

64. The Tribunal is not satisfied that the antibiotics that were prescribed for the applicant related in any way to a chest infection.

65. The applicant was asked about the checkup he underwent in India. He said that it revealed the skin condition but nothing about his chest. He said that the skin condition could cause trouble if the wound had an opening it but that there was no medical evidence of a chest infection at all.

66. He said that his medical condition was the skin condition and a feeling of uneasiness which again, the tribunal took to mean uneasiness in breathing.

67. The applicant gave further evidence about the skin condition and said that he develops boils and for example currently has about four on his inner thigh and the back of his neck which are about the size of a strawberry. He said they are extremely painful and can stop him from sitting down.

68. The applicant was asked about his statement of 16 June 2019. He said that it was prepared in response to a notice received from the Department. The Tribunal takes this to be a Notice of Intention to Consder Cancellation of the applicant’s visa and note that such a notice was provided to the applicant, under section 116 of the Act, on 12 June 2019.

69. The Tribunal noted that in the sixth paragraph of that statement the applicant said that he was stuck with severe chest infection.

70. Tribunal put to him that in fact he was suffering from boils and a feeling of unease. The applicant agreed that he was a bit uneasy with his chest and he thought it could be a chest infection.

71. He agreed that he was examined by doctors in Darwin and complained to them of a chest infection they could find no evidence of one. He asserted that they told him that they noted his difficulty breathing and said that it could be the boil and it could be the immune system.

72. The applicant did not have any evidence of a doctor making such statements.

73. The applicant said that he complained of chest problems when he had his checkup in India.

74. He said that they did not find a chest infection.

75. He was asked if he had ever been diagnosed with a chest infection and he said he had not.

76. He was asked why, in his submission of 16 June, he had claimed to have been struck with a severe chest infection. He said that when he went out he felt heavy and could not breathe as easily as he normally could.  He said that he thought it could be a chest infection.

77. He said that he took antibiotics for about a month and a half and the chest condition gradually resolved.

78. The Tribunal finds that there is no reliable evidence of a chest infection and notes that on the applicant’s own evidence, two sets of medical practitioners who had been asked to investigate chest problems amongst other things were unable to find any evidence of a chest infection.

79. The Tribunal finds that the applicant’s statement that he was struck by a severe chest infection and that he was bedridden at home is not supported and is not true.

80. The Tribunal accepts that the applicant suffers from an ongoing skin condition that has, at times, made it difficult to sit.  The applicant’s evidence, which the Tribunal accepts, was that this condition did not interfere with his work except for about 3 or 4 weeks after he returned from India.

81. The Tribunal does not accept that the applicant’s health had a significant contribution to him failing to maintain satisfactory course progress.

    Other Evidence

82. The applicant gave some evidence about work he had done while in Australia. He said that while in Brisbane he had worked at BP petrol station.

83. He said that since he had been in Darwin he had worked at H Hotel, a hotel in the Darwin CBD.

84. He said that he started there is a kitchen hand but because he was doing the Bachelor of Commerce he applied for and obtained a position as night auditor. He said he started doing that work in about 2017.

85. He said that his health did not affect his ability to do that work very much, although he did take between four and six weeks off at about the time he went to India. He said that his work was less affected than his study because he was generally alone at night when he was working.

86. The applicant said that he is now studying a Certificate Four in Hospitality leading to an Advanced Diploma in Hospitality Management.

87. He said that although he started off wanting to be an accountant, he now realises that he wants to work in the hospitality industry and that the accounting aspect is only part of what he wants to do.

88. He said he realised that he wanted to do hospitality somewhere between the end of 2017 and the end of 2018. He said at that stage he was at Charles Darwin University and that there was no hospitality specific course available for him to do.

89. In relation to his efforts to obtain an enrolment at another University these were unsuccessful.

90. The applicant said that Griffiths University was happy to enrol him although they required an academic standing letter from Charles Darwin University. The applicant said that Charles Darwin University would not provide him with an academic standing letter, but they did give him a transcript. That this was not sufficient for Griffiths University.

91. The applicant says he understands that on completion of his Advanced Diploma at the International College of Advanced Education, Griffiths University will enroll him in a Bachelor Degree.

92. The tribunal observed that the delegate’s decision suggested that the applicant appeared to have enrolled at the International College of Advanced Education in response to the Notice of Intention to Consider Cancellation.

93. The applicant agreed that his enrolment came within six days of his receipt of the Notice of Intention but said that that was because he had believed that he was excluded from all universities for 12 months from the time of his exclusion from Charles Darwin. He said that he had been waiting for an academic standing letter from Charles Darwin University that post dated his 12 month exclusion, in the belief that he could then apply for enrolment at other universities.

94. There is no evidence that an academic standing letter was ever issued by Charles Darwin University. The applicant said that the International College of Advanced Education asked for an academic standing letter but as one was not available, they accepted an academic transcript from Charles Darwin University.

95. The Tribunal also heard evidence from the applicant’s brother, Jaysheel Bhatt.  He gave evidence that he believed his brother had been affected mentally by some problems with his course meaning that it had taken him longer to complete his studies than would otherwise have been the case.

96. He was unable to give evidence about problems with the applicant’s enrolment at Charles Darwin University as he did not know what the problems were.  He thought they may have been related to their uncle’s death which was towards the end of 2016 or in 2017.

1. He also understood that the applicant had suffered from a health problem due to the heat in Darwin and also understood that the applicant had suffered from a relationship breakdown in 2019 which had caused him to start taking medication.

2. There was nothing in the evidence given by Mr. Bhatt that assisted the Tribunal in considering this application.

   Consideration of Factors

3. The applicant was asked if it was necessary for him to undertake his study in Australia and whether he could pursue it in India instead.  He said that he has now been here for 6 or 7 years and has so much knowledge of the industry here and is getting more confidence. He said that on that basis he wants to pursue his study here in Australia.  The Tribunal finds that this is not a compelling need to remain in Australia.

100.   The Tribunal accepts that the applicant came to Australia to study but he cannot establish a compelling need to remain in Australia in order to pursue that study.  The Tribunal accords this consideration no weight in favour of the applicant.

101.   The applicant was in breach of the requirement that he be enrolled in a relevant registered course for over a year. The Tribunal finds that this is a substantial breach.

102.   The applicant asserts that he attempted to re-enrol at Charles Darwin University and later, in June 2018, at four other educational institutions. The Tribunal accepts that there is some evidence of these attempts. On the other hand the applicant was not successful in his efforts to re-enrol and ultimately has not succeeded in re-enrolling in a course at Australian Qualifications Framework level VII.

103.   The Tribunal acknowledges that the applicant has expressed the intention to seek enrolment in a Bachelor level course when he has completed his current Advanced Diploma. He does not claim to have secured an enrolment in a Bachelor level course at this stage.

104.   The Tribunal notes that the applicant’s breach of the requirement that he be enrolled, lasting from 30 April 2018 to 18 June 2019 was a substantial breach and accords it significant weight in assessing the grounds for cancellation of the applicant’s visa.

105.   The applicant said that if his visa is cancelled, he will suffer hardship because he will have wasted much time and he would be sad and that would be an emotional hardship.

106.   In relation to financial hardship, the applicant said that he had paid about $16,000.00 for his current enrolments. The Tribunal notes that the proposed courses are not at the Bachelor level for which his visa was granted.  If the applicant’s visa is not cancelled, he will presumably need to change courses anyway.  The Tribunal accords the alleged financial hardship no weight.

107.   The applicant further said that his parents would be affected mentally and suggested that his mother would suffer a breakdown. There is nothing to corroborate these assertions and the Tribunal is not satisfied that the applicant has established that his family would suffer psychological hardship.

108.   The Tribunal accepts that the applicant’s parents may suffer emotional hardship in that they would be upset if their son returns with the very limited qualifications he has achieved in his years in Australia and accords this consideration limited weight.

109.   The applicant did not give evidence that visa cancellation would cause him other hardship.

110.   The Tribunal has found that the applicant’s enrolment was not cancelled because of health problems or his need to stay in India beyond the start of the academic term.  The Tribunal has found that the applicant’s enrolment was cancelled for unsatisfactory course progress.  The Tribunal is not satisfied that factors outside of the applicant’s control contributed to his failure to maintain satisfactory course progress.

111.   There is no evidence of past or present behaviour of the visa holder towards the department that suggests that his visa should be cancelled and the Tribunal does not accord this consideration any weight in favour of cancelling the applicant’s visa.

112.   If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

113. He will need to apply for a bridging visa or a permanent visa to remain in Australia. If he is not granted a visa he and does not leave voluntarily he will become liable to detention under section 189 and to removal under section 198.

114.   Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be ineligible for the grant of another visa to Australia for 3 years after the cancellation of the Student visa.

115.   There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

116.   The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

117.   The Tribunal has weighed the considerations set out above together and made the findings that are also set out above.  The Tribunal accords significant weight to the finding that the grounds for cancellation of the applicant’s visa did not arise from circumstances outside of the applicant’s control.  The Tribunal also accords significant weight to the finding that the applicant’s breach was a substantial breach.

118.   The Tribunal finds that the reasons not to cancel the applicant’s visa do not outweigh the grounds for cancellation.

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

DECISION

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

Mark O'Loughlin
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.