Sandhu (Migration)

[2024] AATA 2962

Sandhu (Migration) [2024] AATA 2962 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanbir Singh Sandhu

REPRESENTATIVE:  Mr Manmir Bawa (MARN: 2117648)

CASE NUMBER:  2215978

HOME AFFAIRS REFERENCE(S):          BCC2022/2219362

MEMBER:Rachel Westaway

DATE:31 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2024 at 4:32pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased studies – education provider failed to notify course cancellation – English requirement – mental health issues – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202

CASES

Wan v MIMA (2001) 107 FCR 133    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 October 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that on the basis that the applicant was not enrolled in a full-time 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.

3. The applicant appeared before the Tribunal 13 December 2023 at 12:30pm to give evidence and present arguments. The hearing was conducted with the assistance of a Punjabi interpreter.  

4. The applicant was represented in relation to the review.

5. 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

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Background

7. The applicant is a 28-year-old male from India

8. The applicant was granted a TU-500 visa on 6 April 2021.

   Tribunal Application

9. The applicant lodged their application for review on 31 October 2022. They provided the Department of Home Affairs decision record and notification letter and Indian passport along with their application for review.

10. On the 13 December 2023, the day of hearing the applicants authorised representative made the following submissions:

• Written statement from the representative.

• CoE for a Bachelor of Social Work.

• CoE for a Bachelor of Community Services.

• Medical certificate dated 11 December to 13 December 2023.

• Email correspondence between applicant and representative dated 6 December 2023.

  ·            Email correspondence between applicant and Victoria University dated 22 July 2022.

• CBHS health cover dated 22 October 2020.

• Front Cooking School, Certificate III and record of Results in Commercial Cookery dated 2 March 2018.

• Front Cooking School, Diploma of Hospitality Management, and record of Results in dated 24 April 2018.

• Front Cooking School, Certificate IV and record of Results in Commercial Cookery dated 24 April 2018.

  Department of Home Affairs Application

1. On 15 August 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.

2. On 29 August 2022, applicant provided a written response via email, along with a CoE for a Bachelor in Community Services dated 19 September 2022 till 31 May 2025.

3. On 26 October 2022 the Department notified the applicant that his visa was being cancelled.

4. The Department noted that PRISMS indicated that the applicant had not been enrolled in a registered course since 04 May 2021 and therefore had not complied with the requirements of subclause (2)(a) of condition 8202.

5. The Department made note that the applicant’s visa was granted subject to condition 8202, which requires the holder to be enrolled in a registered course. PRISMS indicated that the applicant had not been enrolled in a registered course of study from 04 May 2021 to 25 August 2022. As the applicant did not maintain enrolment in a registered course of study, they no longer met the requirements of subclause 8202(2)(a). Therefore, they did not comply with a condition of the visa.

   Post Hearing Submissions

6. Following the hearing, the applicant was granted an extension to provide further submissions by 31 January 2024. On 29 January 2024 the applicant provided the Tribunal with the following:

7. The submission stated that “the education provider failed to notify the student about the COE status during COVID. It stated that the reason for his COE (BE42C989) cancellation was that the student was notified of the cessation of study; whereas the student never requested the University to cancel COE or cessation of study. The education provider never informed the student about his COE status”.

8. The submission stated that the English requirement for a Bachelor of Social Work is seven each or equivalent. However, the University enrolled students and issued a COE although the student did not meet the English requirement. The submission argued that the applicant’s limited English should have been considered and the submission implied that this responsibility should sit with the course provider.

9. The submission outlined and supplied a copy of Standard 8 of the National Code 2007, which argued that the applicant’s education providers failed to identify and offer support to him which it should have for applicants at risk of not meeting course progress or attendance requirements.

10. The submission also identified Standard 9 of the National Code 2007 which states that the registered provider must notify the overseas student in writing of the intention to suspend or cancel their enrolment. It stated that the applicant should have been given an option for an internal review process and tell the overseas student to seek advice from the Department of Home Affairs on the potential impact on their visa if enrolment has been deferred, suspended or cancelled. The submission states that in this case, the education provider failed to inform the student about his COE status or the options available to him. The applicant’s COE was cancelled on 4th May 2021 but he claims he was never informed and an email provided to the Tribunal indicates that on Fri, Jul 22, 2022, at 10:30 PM Victoria University emailed that applicant confirming his fees are paid in full and that Karanbir Singh Sandhu (Student ID: 4651274), was enrolled or studying.

11. The submission outlines that responsibility is taken by the applicant that it was his responsibility to maintain enrolment and communicate with the University however he was suffering from a mental health situation exacerbated by the COVID-19 pandemic lockdown

12. The submission asked the Tribunal to consider s499 direction no. 61, exceptional circumstances beyond a visa holder's control may include circumstances where the education provider has failed to give the student access to a complaint handling and appeals process as required under standard 8 of the National Code 2007.

13. An attachment was provided of the National Code of Practice for Providers of Education and Training to Overseas Students 2018. The submission highlighted the requirements of the course provider when cancelling enrolment.

14. A copy of the English language requirements for entry to social work was also provided.

15. PRISM records for the applicant and an email from the applicants representative asking for confirmation of status.

16. Highlighted policy and examples of exceptional circumstances such as when the education provider has failed to accurately monitor the student's course progress or attendance or the education provider has failed to give the student access to a complaints handling and appeals process as required under standard 8 of the National Code 2007 or there is policy advice from National Office to give due regard to a political upheaval or natural disaster in a particular country, and the delegate finds that this country is the student’s home country and the political upheaval or natural disaster (COVID) has affected the student’s ability to comply with condition 8202.

    Did the applicant comply with Condition 8202?

17. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

    ·be enrolled in a full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

18. According to PRISMS the applicant has completed the following courses during his time in Australia; a Diploma of Business in 2016, Certificate III in Commercial Cookery in 2017, Certificate IV in Commercial Cookery in 2018 and a Diploma of Hospitality Management in 2018.

19. The applicant was enrolled in a Bachelor of Business between 19 November 2018 – 30 June 2021 but was cancelled due to non-commencement of studies.

20. The applicant enrolled in an Advanced Diploma of Hospitality Management between 28 January 2019 – 23 June 2019 but was cancelled due to non-commencement of studies.

21. The applicant was enrolled in a Bachelor of Social Work between 22 February 2021 31 December 2024 but was cancelled due to the student notifying of cessation of studies.

22. The applicant was enrolled in a Bachelor of Community Studies between 19 September 2022 – 31 May 2025 but was cancelled, no reason was listed on PRISMS.

23. On the day of the hearing the applicant’s new representative provided a submission as outlined above stating they had only just been appointed.

24. Attached to the submission was a doctor’s certificate for the applicant stating he had a medical condition and was unfit for work. No request for a postponement was provided. The Tribunal contacted the new migration agent and it was confirmed that the applicant was able to participate in the hearing but had also requested a Punjabi interpreter. As no interpreter had previously been requested, the Tribunal arranged for a telephone interpreter and the hearing commenced late.

25. In all submission to the Department and the Tribunal the applicant has confirmed he was not enrolled in a full time registered course. This issue was not contested.

26. On the evidence before the Tribunal, namely the applicant’s own admission, the applicant was not 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

27. 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

28. The applicant stated he came to Australia in 2015 and was granted a student visa to study a Certificate 3 and 4 in Cookery and he had an objective to apply for a graduate visa with work rights. He claims he was granted a graduate visa however the COVID 19 pandemic occurred and lockdowns and the visa expired and he couldn’t undertake work or obtain experience. His agent suggested a Bachelor degree of Social Work which is what the visa under review was granted for. The applicant claims he was stressed and couldn’t go anywhere, and he couldn’t see what his future held.

29. He claims he had no interest in social work but the agent forced him to enrol. The Tribunal asked the applicant why he remained in Australia if he didn’t want to study this course and wanted work experience in hospitality. He said he wanted to obtain experience in order to work in his own country and open an Indian restaurant but he struggled to obtain a job and he wanted to make his parents proud as he is the only son. His hope is to work in hospitality and complete his studies. He wants to undertake studies in Hospitality and a Bachelor of Tourism and he believes this course will help him open his own restaurant.

30. The applicant stated that it is his dream to get a degree and he wants his parents to be proud him and his mother is depressed. His father is too.

31. The purpose of the student visa is for the applicant to undertake the full time course of study however the applicant was not enrolled in a course for over 15 months. The applicant stated that he only applied for the student visa to study a Bachelor of Social Work as he was unable to obtain work on his graduate visa.

32. From the information before the Tribunal, the Tribunal questions whether the applicant did have a genuine intention to study as he has clearly told the Tribunal that he ideally wanted to obtain work on the graduate visa and was encouraged to apply for the Bachelor or Social Work which he did not want to do.

33. Whilst the Tribunal acknowledges the applicant would like to remain in Australia and notes his interest study and work experience in hospitality and his desire to make his parents proud as the only son, the Tribunal does not see this as a compelling need to remain in Australia.

34. The Tribunal finds that the purpose of the student visa was not originally to study but to remain in Australia for work experience and that the student visa enables the applicant to stay. The Tribunal does not accept that compelling reasons for the applicant to remain in Australia exist. As such the Tribunal gives this consideration significant weight in favour of cancelling the visa.

    the extent of compliance with visa conditions

35. The applicant was not enrolled in a full time registered course from 4 May 2021 to 25 August 2022, and as such he was in breach of 8202.

36. There is not evidence e to suggest he was in breach of other conditions.

37. Maintaining enrolment is inherent in the expectations of the issuing of a student visa.

38. The applicant was not enrolled for a period of more than 15 months and as such in breach of condition 8202. The Tribunal gives this significant weight in favour of cancelling the visa.

39. degree of hardship that may be caused (financial, psychological, emotional or other hardship)

40. The Tribunal acknowledges that the applicant has paid his agent and has provided evidence of course fees being paid yet has not graduated or had the ability to obtain any work experience in the field he would like. He stated at hearing he has not requested a refund of any fees. As such there would be financial loss and hardship caused by the cancellation of the visa if he was unable to go on and study.

41. The applicant stated that it has been 8 years since he has seen his parents and his grandma passed away in this time and two of his maternal uncles have died and this has added to the stress he has faced. He has reiterated that he would be a disappointment if he was unable to graduate and his visa was cancelled and would face depression too. He explained his father is in the police force and if he dies on duty his children can claim the job and he doesn’t want his father to harm himself because of his situation which could be a trigger.

42. The Tribunal acknowledges that a visa cancellation has financial loss associated with it and the applicant and family member would be disappointed and that this could possibly lead to them and the applicant feeling depressed. The Tribunal also acknowledges that the applicant is concerned his father may harm himself. However, this is not something that is predictable or that evidence of mental health documentation has been provided for.

43. In consideration of the issues raised the Tribunal gives this consideration a little weight against cancelling the visa.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

44. The applicant stated that he had originally wanted to obtain work experience in hospitality but couldn’t so he spoke to many people to obtain advice about courses. He said that there were no courses available at the time in hospitality and his agent told him he should enrol in Social Work and then COVID 19 Pandemic occurred, and he experienced depression and was struggling with the course as it requires a high English requirement and his agent said he can’t change the course.

45. The Tribunal stated that Covid occurred in January 2020 and he applied for the visa in 2021 and would have known of the limitation of COVID and he agreed and said he was depressed and so many people gave him so many different pieces of advice and he could not understand what was happening. He was confused and depressed. He blames his former agent and states that Social Work was difficult because of the English language requirements and he was not ready to do the course he was enrolled in.

46. The applicant provided submissions post hearing outlining the course providers responsibilities to support struggling students and inform them of potential cancellations of their COE. It argued that he should not have been permitted to enrol in Social Work when the English language requirement was so high and he was unable to meet it.

47. The Tribunal asked the applicant why Social Work was offered and questioned whether this was the only course he could have enrolled in and he stated because they were in lockdown, he was unable to obtain further advice.

48. He reiterated his feelings of despair being away from family and isolated.

49. The Tribunal acknowledges the affects of COVID 19 and how it made it harder for people to engage professionals such as migration agents and course providers, however in spite of lockdowns there was nothing preventing the applicant from making contact online or over the phone to obtain support and advice from his education provider or migration agent.

50. Whilst the Tribunal acknowledges that the applicant’s course provider has an obligation to support students who are struggling, PRISMS records as provided by the applicant indicate that the applicant’s CoE was cancelled in May 2021, due to him notifying cessation of studies. The visa was only granted on 6 April 2021 so there was minimal the course provider would do if the applicant was only enrolled for such a short period, and he had advised of the cessation of his studies. Given how early on in his studies he was, he as he acknowledged should have reached out for support and did not.

51. Further, he remained unenrolled in any course for fifteen months and could have discussed this with the Department or left the country when the borders opened.

52. There is nothing to suggest that the applicant utilised any support available to him and has tried to pass the responsibility onto the course provider, the Migration Agent and COVID.

53. The Tribunal gives this consideration significant weight in favour of cancelling the visa.

    past and present behaviour of the visa holder towards the department

54. There is no information before the Tribunal to suggest the applicant has no co operated with the Department and he has responded to all requests by the Tribunal and as such the Tribunal gives this consideration a little weight against cancelling the visa.

    whether there would be consequential cancellations under s 140

1. The applicant has confirmed he has no dependant family member whose visas will be cancelled under s140 as a consequence of his visa cancellation. The Tribunal gives this consideration no weight either for or against the cancellation of the visa.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

2. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia. He would also be affected by section 48 of the Act, which would cause him to have limited options when applying for further visas while in Australia, and Public Interest Criterion 4013, which may prevent them from being granted particular temporary visas for a specific period.

3. The Tribunal gives this consideration some weight against cancelling the visa.

   whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

4. The applicant is a citizen of India. He has not raised any concerns pertaining to his safety should he return to his home country.  As such there is nothing before the Tribunal that would engage Australia’s international obligations and therefore, the Tribunal affords no weight either for or against a decision to cancel the visa.

   if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

5. The visa is a temporary visa and as such this consideration is not relevant.

   any other relevant matters

6. There are no other relevant matters raised by the applicant. And as such no weight has been given to this consideration either for or against a decision to cancel the visa.

7. Considering the circumstances individually and as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Rachel Westaway
   Senior 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.