Randhawa (Migration)

Randhawa (Migration) [2020] AATA 1628 (27 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kuljit Singh Randhawa
CASE NUMBER:  2002471
HOME AFFAIRS REFERENCE(S):          BCC2019/4985198
MEMBER:Michael Biviano
DATE:27 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 27 April 2020 at 1:28pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – non-payment and non-attendance – discretion to cancel visa – study history, issue with teacher and change of course – long period of non-enrolment – applicant’s and father’s health – applicant’s relationship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 3 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 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with subclause (2)(a) of condition 8202 of his visa as he was not enrolled in a registered course of study. 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 appeared before the Tribunal on 20 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·must be enrolled in a full-time registered course: 8202(2)(a)
·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: 8202(2)(b);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis the applicant was in breach of subclause (2)(a) of condition 8202 of his visa in that he was not enrolled in a full- time registered course of study for the period from 29 August 2018 to 3 February 2020.
The decision record of the delegate of the Department of Home Affairs on 3 February 2020, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 4 December 2017 and the reasons for the cancellation of the visa (Decision Record).
The applicant came to Australia on 28 September 2015 pursuant to a student (Subclass TU 572) visa to undertake a suite of courses at Zarah Institute including a Certificate IV in Business, Diploma of Management and an Advanced Diploma of Management (Management Courses). The applicant completed the Certificate IV in Business in March 2016 and the Diploma of Management on 17 April 2017.
The applicant claims that he had an issue with a teacher at Zarah Institute.
He changed education providers and gave evidence that he enrolled at the Australian School of Commerce (ACS) to study an Advanced Diploma of Management and a Graduate Diploma of Management. He undertook studies in the Advanced Diploma of Management. He found that the course was tough. He studied 6 subjects, of which 2 he failed and 4 were incomplete. He gave evidence that he was not enjoying his studies. He approached the school for a release and had two to three discussions with a manager at the college who was rude to him and told the applicant that he would not be released from the course unless he paid to ACS the full amount of his tuition fees for the balance of the courses plus an additional amount for the manager. His evidence on these matters was not supported by corroborating evidence.
He gave evidence that he left ACS after studying there 8 – 9 months which would have resulted in him departing ACS in December 2017 to January 2018.
On 4 December 2017, the applicant was granted a further student visa (Class TU 500) which is the subject of this application.
He gave evidence that he returned home to India between 28 February 2018 and 13 March 2018 and he discussed with his family changing his course of study to automotive studies.
After returning from India, he claims that in July 2018 he enrolled in a suite of automotive courses at Acumen College, for which he obtained Confirmation of Enrolment Certificates (COE) including:
a.Certificate III in Light Vehicle Mechanical Technology;
b.Certificate IV in Automotive Mechanical Diagnosis;
c.Diploma of Automotive Technology.
(Automotive Courses)
He gave evidence that he did not attend the courses and did not pay the tuition fees for the automotive courses after obtaining the CoE for those subjects.
The Decision Record confirms that he was not enrolled in a registered course of study from 28 August 2018, by reason that his CoE was cancelled. When asked whether he agreed that his enrolment was cancelled from 28 August 2018, he claimed he had not been notified by Acumen College that his enrolment was cancelled on that day. However he accepted that as he did not attend classes and he did not pay the tuition fees, that his enrolment in the automotive courses would have been cancelled and he accepted that his course would have been cancelled at that time.
On 6 January 2020, the Department provided the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his visa.
The applicant provided a response to the NOICC which provided as follows:
First of all, I would like to thank the delegate for giving me an opportunity to clarify on my behalf. There were some serious circumstances which was really attached to my life as Parents have a major role in everybody’s life and we can never compromise anything with them because what we are today, we are because of them only.
I would like to introduce myself before writing this submission to the authority.
I am 25 years old and I am from Pandori Musharkati, India. I am from a small town of Punjab. My parents are hard-working people and swore to support the family by earning bread & butter. I am currently living in Melbourne, Australia. I am a very hard-working person and I will never give up till I successfully achieve my goals and passions. My career goal is to involve in the long-term well-being and be able to make some positive impacts in the society and in the livelihood of disadvantaged communities who cannot afford basic living and legal costs.
Life is unpredictable path as the next bend is not known and if not carefully driven through, also there are chances of an accident. Even I am at that junction of life where the path ahead of me is not visible and I have to decide the bend which would take me a safe way ahead. I had lot many choices from which I had to decide my path. The choice hasn't been so easy for me as this choice will be my future, with what I will have to live my entire life. Various factors mattered considering which I had to decide. I had to decide the career path which would give me happiness doing work in the long run of my life, along with the mental satisfaction, worldly pleasures as well as the success label.
I came to Australia to study Certificate IV in Business followed by Diploma of Leadership & Management from Zarah Institute of Education on a student visa (subclass 500) and successfully completed the course on 10.04.2017. I was planning to study Advanced Diploma of Management after completing my diploma, but there were some circumstances in my institute that led to my discontinuation of my study in Zarah Institute. The student services gave me a hard time and were not completely supportive in helping me out with my queries, therefore I decided to change my education provider at that time. I took admission in Advanced diploma of Business leading to Graduate Diploma of Management from Australian school of commerce.
Moreover, In the year 2017, I was in a happy phase of my life. I was living with my girlfriend who was also a student here and she was studying Nursing in one of the institutes. We both were very attached to each other & supported each other in all walks of life. I introduced her to my parents and had plans of getting married soon. We dated for nearly two years and after a while I realised that the relationship was built on a lie. We had a dispute, and this led to some serious circumstances in my life. I was diagnosed with clinical depression in the year 2018. I went to visit my parents in the beginning of year 2018, as they were worried about my wellbeing. I was not able to concentrate on my studies and this was completely unpredicted by my family because in the past I was the most studious child in the family and had an understanding that I have the responsibility of my family on me because my father is a farmer & my mother is a housewife and they both have limited savings for my education.
My medical situation had shattered my parents and had caused them with some serious health problems. My father, who is the only bread earner in the family was diagnosed with a fatal heart condition due to stress. Due to the above-mentioned unforeseen circumstances, I was unable to complete my previous studies. But I am currently motivated to take up a study in the Feb intake for Graduate diploma of Management and I believe that this study will benefit me when I return to my home country.
Considering all the above, I sincerely hope that your views are aligned with mine and thus would like to request you to consider my genuine interest to study and complete my current course of study. My age is as such that in my age bracket students are who are known to frequently change their career goals and decisions. I hope I am not judged too harshly for my decision to change my course of choice. A negative outcome would be disastrous for myself, my family and all the money, time and dedication till date will be in vain. We hope you will make a just finding and hopefully make a positive decision in this case.
I humbly request that you look at this case in totality and make a justifiable decision.
I have for your reference attached all supporting documents for your reference.
Thank you in anticipation.
Kuljit Singh Randhawa
xxxx xxx 944
(Response)
On 14 April 2020, prior to the hearing the applicant filed a further submission dated 9 April 2020, with an extract from his passport and response for the hearing (Submission). The Submission restated many of the matters contained in the Response.
The applicant conceded in evidence that he was not enrolled in a registered course of study from 29 August 2018 until the cancellation of the visa on 3 February 2020, being a period of more than 17 months, which is a very long period of time. By reason of not being enrolled in a registered course for that period of time, he did not meet condition 8202(2)(a) of his visa.
Accordingly, the applicant has not complied with condition 8202(2) of his visa. As this was a condition that was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b) of the Act.
On the evidence before the Tribunal, the applicant was enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
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 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
The applicant gave evidence that he came to Australia to study and undertake the Management Courses at Zarah Institute. He completed the Certificate IV in Business and the Diploma of Management, but in April 2017 he changed his education provider to ACS to undertake further management courses.
The applicant’s evidence was that he ceased undertaking those studies in either December 2017 or January 2018 at ACS, as he did not enjoy his studies and he was struggling. He spoke to his family about undertaking the automotive courses and he changed his enrolment to Acumen College, but he did not commence those studies.
The applicant did not undertake any form of study from January 2018 until the cancellation of the visa in February 2020, which is a period of two years, which is a very long period of time not to be studying and confirms an intention that he did not want to study during this period of time.
Whilst the Tribunal accepts that the applicant may have needed to change education providers and then courses, the applicant was obliged to meet his visa conditions and it was his responsibility to maintain enrolment in the appropriate level of course.
The applicant in evidence confirmed that he knew that he was in breach of his visa.
The Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that he would be in breach of his visa by not enrolling in a registered course of study.
The applicant gave evidence that it was his fault that he could not maintain enrolment in the automotive courses. He claimed that he lost his enrolment in the automotive courses and did not undertake studies because:
a.he was not feeling well;
b.he was fed up with the College;
c.his mind was not there to undertake studies; and
d.he was sick.
As to his claims as to why he lost in enrolment in those courses and he was unable to get enrolled, the applicant gave further evidence that:
a.He was fed up with the College. The applicant’s evidence on this matter was nonsensical. He confirmed that he had no issues with Acumen College, the college he was enrolled in to study the Automotive Courses but he had issues with his previous college, in particular ACS. He claimed that the treatment from the manager there made him feel grey and not wanting to study. He claimed that he felt depressed and that he could not study in those circumstances.
b.His mind was not there to undertake studies in the automotive courses. He claims that he had been under pressure with ACS, in particular, the manager and the difficulty with the courses at ACS. He also claimed that he was homesick and that impacted upon his mind. He also separated with his long term girlfriend and that impacted upon his ability to concentrate. The applicant did not lead any medical or psychological evidence as to those matters or as to why he could not have deferred his studies.
c.He was sick and not feeling well. He claimed that he was suffering from depression. He claimed that he was mentally low and feeling insane, spending a lot of time in his room. He claims that he was very sick for those 15 to 16 months. He claimed that he was unable to study at that time. The applicant in evidence claimed that he is currently seeing a general practitioner about his condition, but at the time of losing his enrolment and thereafter he did not seek medical advice. He was not on medication for his ‘depression’ or low state and he is currently not on medication for his ‘depression’ or low state. He is now on medication to control his blood pressure. There is no medical evidence or psychological evidence before the Tribunal that he was suffering from depression from the time of losing his enrolment in the automotive courses until the cancellation of the visa and that his state was so severe that he could not study, re-enrol in courses or was unable to take steps to defer those studies. Further the applicant gave evidence that whilst he was not studying, during that 17 month period, he was able to continue working as a pizza delivery driver. If his condition was so severe, he would not have been able to continue working.
The Tribunal is not satisfied on the evidence before it that the applicant lost his enrolment in the automotive courses for circumstances beyond his control.
The Tribunal finds that the applicant was not enrolled in a registered course and in breach of the visa for a period of more than 17 months, which is a long period to be in breach of the visa. Despite the reasons claimed for not being enrolled, the Tribunal finds that the applicant was responsible for the period of his non-enrolment and his conduct confirms an intention that he did not wish to study during that period.
The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa.
Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a full-time registered course of study and that they are responsible for ensuring they are enrolled in a registered course of study.
The Tribunal finds that the reasons for not being enrolled in a full-time registered course were the responsibility of the applicant.
The applicant has given evidence that in the future he wants the opportunity to complete the Automotive Courses at Acumen College and he wishes to complete those courses so that he can return home in 2 years’ time or apply for a TR 485 visa to work in Australia for 1½ years to 2 years to gain experience.
While the Tribunal accepts that the applicant came to Australia to study and he intends studying in the future, having regard to the very long period of the breach, the reasons for losing the enrolment in the Automotive Courses, the fact that the applicant could have applied to defer his studies, and that the applicant was responsible for not being enrolled in the automotive courses, the Tribunal gives these matters substantial weight towards the visa being cancelled.
The extent of compliance with visa conditions
The applicant accepted in evidence that he was not enrolled in a course of study from 29 August 2018 until the cancellation of the visa on 3 February 2020, being a period of more than 17 months which is a very long period of time. Therefore, the applicant has not complied with condition 8202(2) for a very long period of time. The non-compliance with condition 8202(2)(a) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or the reasons for the non-enrolment were beyond his control.
The applicant in evidence gave a number of reasons why he lost his enrolment and he was not enrolled for 17 months as set out above, which are not persuasive. The Tribunal finds as discussed above that the reasons for not being enrolled in a full-time registered course were the responsibility of the applicant.

Other than the breach of condition 8202(2) the Decision Record of the delegate does not reveal any other breach of his visa conditions.
The applicant created the breach of his visa in losing the enrolment in the automotive courses, for non-payment of tuition fees, not attending classes and not seeking to get enrolled, which is why enrolment in the Automotive Courses was cancelled.
The applicant in evidence confirmed that he knew that he was in breach of his visa.
While the Tribunal understands the applicant’s reasons for losing his enrolment and not being enrolled in a full-time registered course, they do not excuse the applicant from not being compliant with the visa, where the applicant was aware that he would be in breach of his visa by not being enrolled in a full-time registered course.
Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a full-time registered course of study and they are responsible for ensuring they are enrolled in a registered course of study.
The Tribunal does not accept his reasons for non-enrolment or that the reasons for the non-enrolment were beyond his control.
Having regard to the very long period of the breach, the reasons for losing the enrolment in automotive courses, and that the applicant was responsible for not being enrolled in a full-time registered course, the Tribunal gives these matters substantial weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.
The applicant gave evidence that if his visa was cancelled it would cause him a substantial degree of hardship as it would impact on his opportunities in the future to complete an education in undertaking the Automotive Courses and getting a job in India.
The applicant has obtained some qualifications in Australia including a Diploma of Business and Certificate IV in Business. The applicant did not commence studying any of the subjects in the Automotive Course and he is not leaving a course only partly completed.
The applicant gave evidence that he would be able to return to India and he possibly may be able to undertake automotive studies to become an automotive mechanic back home in India.
The cancellation of the visa would cause some hardship as he would be returning home after 3½ years without concluding his intended studies.
However, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately, the responsibility regarding enrolment rests with the student.
The applicant knew and was aware that by not being enrolled in a registered course of study at the appropriate level he would be in breach of condition 8202 and that his visa may be cancelled.
The primary responsibility of the applicant under the visa is to be enrolled and undertake a registered course on a full-time basis. The applicant was not enrolled in a full-time registered course for a period of 17 months, which is a very long period of time to be in breach of the visa.
The Tribunal has considered the applicant’s explanations for why he was not enrolled in a full-time registered course for a very long period of time and therefore in breach of condition 8202(2)(a). The Tribunal does not accept those circumstances were beyond his control, or circumstances that provided a reasonable explanation for not being enrolled for such a long period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
This matter is not relevant in this application as the Tribunal is not aware of any other person in Australia whose visa would be cancelled under s.140. The Tribunal gives this factor no weight towards the visa not being cancelled.
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
If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa.
Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.
However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.
The applicant gave evidence that if the visa remained cancelled he would seek advice and that he may return to India and undertake his studies there, and therefore there is no indication that he would become unlawful or be subject to detention.
Accordingly, the Tribunal gives this factor marginal 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
This matter does not appear relevant in this application and the Tribunal gives this factor no weight towards the visa being cancelled.
If it’s a permanent visa, whether the visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa being cancelled.
Any other relevant matters
The Tribunal is not aware of any other relevant factors in relation to the decision whether the visa ought be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michael Biviano
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.

[2020] AATA 1628

27 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal