Sharma (Migration)

[2021] AATA 5218

Sharma (Migration) [2021] AATA 5218 (18 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vatan Sharma

CASE NUMBER:  2103893

HOME AFFAIRS REFERENCE(S):          BCC2020/2229185

MEMBER:Wendy Banfield

DATE:18 October 2021

PLACE OF DECISION:  Canberra

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

Statement made on 18 October 2021 at 12:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – homesick – adjustment difficulties – experienced personal problems – responsibility to comply with visa conditions – 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 17 March 2021 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 the visa holder did not comply with subclause 8202(2)(a) of condition 8202 attached to their visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 22 years old. He came to Australia in November 2018 to study a Bachelor of Accounting degree. The applicant began his studies in accounting but discontinued after experiencing personal difficulties. He had also enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management but did not commence the courses and his enrolment was cancelled. He is currently enrolled in a Graduate Diploma of Management.

   Evidence provided to the Department

4. On 5 March 2021 the Department wrote to the applicant and provided a Notice of Intention to Consider Cancellation. The notice contained particulars of the grounds for cancellation as follows:

   On 12 November 2018, you were granted a Student visa to study a Bachelor of Accounting. You commenced this course, however you ceased studying and the confirmation of enrolment (COE) for this course was cancelled by your education provider in April 2019. In May 2019, you enrolled and commenced studying a Bachelor of Professional Accounting. However, your COE for this course was cancelled by your education provider in March 2020, because of ‘unsatisfactory course progress’.

   In May 2020, you enrolled in a Certificate IV in Commercial Cookery and Diploma of Hospitality Management. However, you did not commence the Certificate IV in Commercial Cookery which resulted in your COE for that course and the Diploma of Hospitality Management course being cancelled by your education provider on 29 September 2020 for ‘non-commencement of studies’.

   You have not been enrolled in a registered course of study since 29 September 2020.

5. The applicant was advised his Student (subclass 500) visa was being considered for cancellation under s116 (1)(b) of the Migration Act 1958. He was invited to comment on the information and state reasons why the grounds for cancellation do not exist, or reasons why the visa should not be cancelled.

6. On 12 March 2021 the applicant responded to the invitation to comment: He included the following submission:

   I arrived Australia in the month of November 2018 to study Bachelor of Accounting. I was studying well in the course, however, the feeling of homesickness got to me, and I ended up losing interest in the course. I thought that it was the education provider that I was not comfortable with and therefore, decided to change the education provider. I then enrolled at Holmes Institute in Bachelor of Professional Accounting. I was enjoying and liking my studies at Holmes, however, I ended up losing interest in the field of Accounting. This was the reason that my course progression was not competent and therefore, my COE was cancelled at Holmes. Thereafter I had a conversation with my family about my career and course progress. My mother told me to follow my heart and study where my interest lies. I then spoke to few other friends of mine and they said that I can enrol in Commercial Cookery course. I was excited to start the course, however, things were not meant to be the way I expected them to be. One of my closest friends passed away around that time and that was the end of my aspirations. I was shocked and couldn’t believe this at the start. I lost my sleep at nights and lost my appetite too. I was in an isolation state where I preferred to not speak to anyone at all about my feelings. One day, in August 2020, another incident happened in Australia, where I was being charged by the Police. The matter has now been sorted. However, that incident has left the footprints on my mind. As a result of all this, I have lost my aspirations, my sleep, appetite, I felt anxious and wanted to give up on everybody.

7. In his response, the applicant provided an offer letter for enrolment in a Graduate Certificate and Graduate Diploma in Management and declared he was looking forward to completing the course before returning home. He also included a medical certificate dated 10 March 2021 from a general practitioner stating the applicant had been suffering from depression and anxiety for the previous six months. 

   Evidence submitted to the Tribunal

8. The applicant submitted the following evidence to the Tribunal prior to the hearing:

   ·     Email dated 24 September 2021 from the applicant advising he is about to finish a Graduate Certificate of Management

   ·     Confirmation of enrolment (COE) for a Graduate Certificate of Management (Learning) from 5/04/2021 to 3/10/2021

   ·     COE for a Graduate Diploma of Management (Learning) from 4/10/2021 to 2/10/2022

9. The applicant appeared before the Tribunal on 1 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   Evidence at the Tribunal hearing

10. The applicant confirmed he came to Australia in November 2018 as a student. He said he had difficulty adjusting and was homesick when he began a Bachelor of Accounting at CQU. He said after one semester he changed education provider to Holmes Institute, however, the applicant claimed he could not understand the concepts and was not familiar with the software being used. As a result, the applicant said he decided to change to cookery which a friend said would be easier and would allow him to “learn the basics” of cookery. His career plan was to undertake a Bachelor then a Master of Accounting. He enrolled in commercial cookery and hospitality management courses. According to the applicant, he was intending to go back to accounting after one year.

11. The applicant advised he then suffered depression due to a trauma and was at home for three or four months. He said he was willing to visit his family at the time but was unable to as borders were not open due to COVID. The applicant said a friend of his in India committed suicide, in June or July 2020, and the person had been very close to him. He said as a result he suffered depression, but when his visa was cancelled, he decided to start everything from the beginning.

12. The applicant said he is currently enrolled to study a Graduate Certificate and Graduate Diploma of Management until 2 October 2022. He said he cannot change the past, but he plans to complete the courses and enrol in a Bachelor of Business or IT. The Tribunal asked the applicant why he had been unable to study for such a long period. He said he was depressed and not fit to do anything for six months but now his mind is in the right place. The Tribunal put to the applicant that he must have known that as a student visa holder, he was required to study. The applicant said he had not been aware that if he made this kind of mistake, he would end up where he is.

13. The Tribunal asked the applicant if he had any assistance from his education provider regarding difficulty settling in to study. The applicant referred to an incident where he had missed a class and the teacher had joked about it, and as a result, he did not want to tell anyone he was having problems. He related that he also experienced problems at Holmes Institute. The applicant advised he had been working 20 hours per week, but he stopped when he became depressed.

14. The Tribunal referred to the applicant having been charged with an offence by police while he was in Australia. He agreed that was the case. When asked for details, the applicant said he and some friends had drinks and “made some noise” and he was charged by police. The applicant said he was trying to get his life on track. The applicant said this occurred in October or November 2020. The applicant advised he had been charged with carrying an offensive weapon but claimed he had only picked up a shovel. Regarding the charges, the applicant said he attended court and he plead guilty to one charge but not to having an offensive weapon. He received a fine of $700.

15. The Tribunal advised the applicant it would be considering whether there were grounds to cancel his visa, and if so, whether the visa should be cancelled in his case. He was asked if he believed he had a compelling need to remain in Australia. The applicant said he has done some things wrong but wants to improve himself, complete his degree and not be a disappointment to his family. He said he had completed high school in India then undertook a IELTS test to come to Australia. He indicated studying in India was good, but Australia is better. The applicant agreed he could study in India, but it would be a disappointment to his family. 

16. The applicant said he believed he had complied with all other visa conditions. However, the Tribunal put to him that he had engaged in criminal behaviour. The applicant acknowledged that was the case but said he had learned from it and does not look back. Regarding any hardship that would result from his visa being cancelled, the applicant said he has returned to study and if his visa is cancelled, he will lose all hope. The Tribunal put to him that he had arrived in November 2018 meaning he had spent nearly three years in Australia but will not be starting a bachelor’s degree until after next year. The applicant said if he has a degree, he will return to India and find a job which will allow him to have a good life. The applicant submitted he has not had work rights for six months and it has been hard financially. It was claimed his family are paying for his study fees, while his accommodation and daily expenses are paid through a loan from a family member. The applicant said the trouble he caused was a big problem as he had to pay a lawyer, and he thinks about it every day.

17. The applicant confirmed no other visa will be cancelled if his visa is cancelled. The Tribunal asked if he wanted to comment on the legal consequences of cancellation and the applicant said he would lose the chance to improve himself. In addition, the applicant said in India, the government does not support farmers and he would be of no use if he returned. According to the applicant, he is currently studying at Richmond School of Business in Paramatta. He claimed after he completed a degree in either business or information technology, he will return to his home country and try getting a job. He referred to the fact that a labourer in India is paid very little. When asked about his medical certificate, the applicant said he had been seeing a doctor and later took medication. He requested he be given a chance to do better and put his mistakes behind him.

18. 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

19. 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.

    Did the applicant comply with Condition 8202?

20. 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).

21. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.

22. According to the evidence the applicant failed to maintain enrolment in a full-time registered course of study from 29 September 2020 to 5 March 2021 when the Department issued a NOICC, a period of five months. In addition, the applicant had not studied since at least May 2020 because he did not commence the Certificate IV in Commercial Cookery and Diploma of Hospitality Management that he was enrolled in. In his evidence, the applicant gave reasons why he had not continued with his courses but did not dispute that he had failed to study and that there had been grounds to cancel his visa. Therefore, on the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course and had not complied with visa condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

23. 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

24. The applicant arrived in Australia to study a Bachelor of Accounting and was enrolled in the course. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. In his response, the applicant acknowledged he had made mistakes and done the wrong thing but claimed he wants to improve himself, complete his degree and not be a disappointment to his family.  The Tribunal considered the applicant’s submission but is not satisfied he has demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

25. There is evidence before the Tribunal that the applicant has not complied with other visa conditions, specifically, that he does not engage in criminal behaviour. However, the Tribunal has taken not placed weight on this as there is no independent evidence before it.

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

26. During the hearing the applicant claimed he would have difficulty studying in India if he is required to depart from Australia without completing a degree and the education opportunities in Australia are preferable. He also stressed his family will be disappointed in him and he wants to be able to improve his life. The applicant referred to his family being of a farming background and that labourers are low paid in his home country. Most of the applicant’s submissions in writing and in person at the Tribunal hearing relate to hardships he experienced prior to his visa being cancelled while his submissions about the degree of hardship that may be caused as a result of visa cancellation were brief. Nevertheless, the Tribunal accepts the applicant will not be able to continue studying or residing in Australia if his visa is cancelled and he will suffer some degree of hardship. The Tribunal gives some weight in the applicant’s favour when assessing this criterion.

27. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if his visa is cancelled, however, the intended consequences of the legislation do not outweigh the other considerations in this case.

    ·     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

28. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a period of at least five months. The applicant gave a number of reasons for why this occurred: he was homesick and had trouble adjusting to the study environment in Australia; he was not satisfied with his first education provider and changed to another college; he lost interest in studying accounting; he was intending to study cookery but a close friend in India passed away; he suffered from depression and anxiety and did not leave the house for six months; and finally, he was charged with criminal offences after drinking with friends and engaging in conduct that came to the attention of police.

29. The Tribunal acknowledges the applicant may have faced some adjustment difficulties when he came to Australia to study. When asked if he had sought any assistance settling into his studies, the applicant indicated he was not comfortable doing so. As a student visa holder, it is the applicant’s responsibility to ensure he complies with visa conditions and educational institutions usually provide help to international students when needed. It is not acceptable for a student visa holder to cease studying without arranging appropriate leave from the institution. The Tribunal did not receive any independent evidence of the applicant’s friend in India having passed away but is prepared to accept it occurred. However, the applicant’s medical evidence that refers to his mental health is dated 10 March 2021. The applicant did not seek help at the time he claims to have been adversely impacted by personal problems. It was only after he was contacted by the Department that he took any action. The applicant enrolled in a Graduate Certificate and Graduate Diploma of Management but once again, only did so following contact from the Department indicating his visa was being considered for cancellation. The Tribunal notes the applicant claimed his friend in India passed away in either June or July 2020 leaving him unable to study or leave the house for six months, yet he submitted that later in 2020[1], he engaged in anti-social behaviour with friends that led to him being charged with offences and being required to attend court. This occurred during the five-month period when he was no longer enrolled to study. The Tribunal is concerned firstly that the applicant engaged in drinking and anti-social behaviour when he claimed to be unable to leave the house due to his mental health, and second, that he gave varying accounts of the dates when these important events that were said to leave a lasting impact on him occurred.

    [1] The incident occurred in August 2020 according to his written submission to the Department but October or November of 2020 in his evidence to the Tribunal.

1. The Tribunal understands the applicant may have experienced personal problems while holding a Student visa and residing in Australia. Nevertheless, the applicant’s response to these matters was within his control. The issues the applicant encountered are life events that many people deal with. Although they can be stressful, they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa and failing to study or maintain enrolment. The applicant did not study or seek appropriate leave from his studies while holding a student visa in breach of visa conditions. The conditions of the applicant’s student visa required him to maintain enrolment which is a strict requirement and was his responsibility as the visa holder. Therefore, the Tribunal finds the circumstances in which the grounds for cancellation occurred weigh against the applicant in considering whether to exercise the discretion to cancel his visa.

   ·     past and present behaviour of the visa holder towards the department

2. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given some weight in the applicant’s favour in this regard.

   ·     whether there would be consequential cancellations under s.140

3. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

   ·     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

4. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.

   ·     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

5. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

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

6. The Subclass 500 Student Visa is not a permanent visa.

   ·     any other relevant matters

7. There are no other relevant matters to be considered in the applicant’s case.

   Conclusion

8. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that most considerations weigh against the applicant. The Tribunal is not satisfied the issues encountered by the applicant outweigh the grounds for the visa to be cancelled.

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

   DECISION

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

    Wendy Banfield
    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.