Sharma (Migration)

[2020] AATA 4765

Sharma (Migration) [2020] AATA 4765 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hetanshu Sharma

CASE NUMBER:  1933510

HOME AFFAIRS REFERENCE(S):          BCC2019/3284582

MEMBER:Noelle Hossen

DATE:2 September 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 September 2020 at 3:30pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course ceased – limited academic progress – applicant changed to diploma courses – potential financial hardship – applicant re-enrolled in course – decision under review set aside 

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 November 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  has not complied with subclause 2 (b) of condition 8202 as he did not maintain enrolment in a registered course at the same level as, or higher than ,the registered course in relation to which the visa was granted. 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 the 30 July 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 (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?

7. 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)

   ·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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course in accordance with Condition 8202 subclause (2) (b) as he did not 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.

9. The applicant said that he had come to Australia around July 2018.He had completed his secondary education and then studied for a Diploma in Computer Engineering in India. He applied for a student visa to study for a Bachelor of Information Technology at Southern Cross University in Queensland. He was enrolled to commence on the 25 June 2018 and to complete the course on the 11 June 2020.

10. He had hoped to improve his employment prospects to study at a higher level.

11. He said that he found that migrating to a new country was difficult for him. He could not adapt to the different teaching methods.

12. He said that he did not fit in and felt isolated. He said that his accent made him feel insecure. He found it difficult to converse with his classmates.

13. He stated that he felt lonely and did not have any emotional support and did not have the confidence to speak to anyone about it.

14. He said that he did raise the issue with the faculty staff but that no one took him seriously and they gave the impression that they could not help him.

15. He said that he failed 2 units during his first semester at the University resulted in a negative impact on his mental health and gave him anxiety and he planned to leave Australia.

16. He said that he felt under pressure as it had been his decision to travel and study in Australia as his parents had wanted him to travel to the United States to study with his sister.

17. The applicant received Notification (NOICC) from the Department on the 9 October 2019 that the Department was considering cancelling his visa as he had breached Condition 8202 subclass 2(b).

18. The Department had checked his PRISMS record and noticed that he had cancelled his studies at Sothern Cross University on the 13 November 2018 as it was noted that the student requested to withdraw as he wanted to return to his home country.

19. The Department cancelled his Visa on the 21 November 2019 as he was not enrolled at the time in a Course at AQF level 9 (Masters Degree or equivalent.)

20. The applicant had enrolled in a Certificate III in Commercial Cookery leading to a Diploma in Hospitality at the Australian Tertiary Institute.

21. The reality of the situation is that the applicant was in breach of condition 8202 subclause 2 (b) at the time that the Department.

22. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course in accordance with his visa conditions. Accordingly, the applicant has not complied with condition 8202(2)(b).

    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’.

24. The applicant submitted that he had travelled to Australia with the sole purpose of furthering his education. He said that he was successful in his home country as he had completed his secondary education and did well when he undertook the Diploma of Computer Engineering and he submitted that he had obtained marks averaging to a Distinction.

25. He thought that he had always been a capable student. The applicant submits that he attended his course on a regular basis. However, even with the fact that he attended and worked hard in his courses he could still not manage to pass all of his units in his IT Course.

26. He realised that he could not succeed in the course and that the fact was he was not suited to study IT. He said that he was unaware that he was breaching condition 8202.He has now enrolled in a Graduate Diploma in Management which is at AQF level 8.

27. The Tribunal has carefully considered all of the evidence including the oral evidence at the hearing, submissions filed and the decision of the delegate. Whilst the Tribunal has some concerns that he initially applied and was granted enrolment for a lower level course, the Tribunal is willing to accept that he his intention in coming to Australia was to study and give some weight in the applicant’s favour.

28. The applicant submits that he has never breached the conditions of his visa. He said that he would never taken the risk of having his visa cancelled if he had known that he was breaching the condition as he had been brought up to be a law abiding citizen.

29. There is no evidence before the Tribunal that the applicant has breached any other conditions of his visa other than as stated in this decision. The Tribunal is willing to accept his evidence that he has not breached any other conditions of his visa.

30. The applicant submits that that if the visa is cancelled it will have far reaching consequences to his future. He said that his parents had invested a lot to send him to Australia and to pay for his courses that he could not complete.

31. He said that it will cause stress to him and to his family as they had high hopes for his future. He said that the visa cancellation will impact his mental health and tarnish his travel opportunities as it will potentially affect his travel to other countries including Australia.

32. The Tribunal accepts that there will be some financial hardship to him in the future and to his family if the visa remains cancelled. The Tribunal considers that the cancellation will impact his future career. His family have paid for the courses that he undertook at the University and he failed 2 units. He had not been in Australia for very long and could not adjust to the different lifestyle. The hardship may be significant to his future, if he returns to his home country without a Certificate as he expects that his family will not support him in any future endeavours to study. He will have missed an opportunity, so the Tribunal attaches some weight in favour of the applicant’s case.

33. His sister in studying a Masters in the United States so the difference will be stark between the 2 siblings. He expects that if the visa remains cancelled it will affect his mental health.

34. The Tribunal takes into consideration that the applicant did attend his courses and did try to complete his course at the Southern cross University. The Tribunal finds that the circumstances could have been different if the applicant had contacted the Department and advised them that he wished to study a lower level course as he could not pass his course due to the difficulties experienced by him at the start of his stay in Australia.

35. He said that he attended upon a migration agent who did not point out to him that he may be at risk of having his visa cancelled.

36. The Tribunal is willing to consider that the applicant was ignorant of the system and simply did not know that he was breaching his conditions resulting in a cancellation. He did not have the capacity, at that point in time, to continue on with his course as he did not pass all of his units.

37. He said that he suffered home sickness and was isolated in Australia. He had no emotional support from any family or friends and simply could not cope with the situation. He wanted to go back to his home country and after discussions with an education provider was encouraged to change his career pathway. It was for this reason that he enrolled in the Commercial Cookery Course.

38. The applicant did respond to the NOICC and engaged with the department and the Tribunal give this some weight in favour of the visa not being cancelled.

39. The applicant is presently on a bridging visa. If the visa remains cancelled the applicant will only be able to apply for a limited range of further visas. Given his evidence the Tribunal considers that he will not become unlawful and liable to detention. The Tribunal gives this factor little weight in favour of the visa being cancelled.

40. The Tribunal accepts that there may be some financial hardship to the applicant and his family if the visa is cancelled. The applicant did not indicate any other reason or fear of return to India. The Tribunal finds that there is no information to support that any international obligation would be breached and give this factor no weight.

41. The other relevant matters that the Tribunal takes into account are that the applicant submits that he is now enrolled in a Graduate Diploma in Management which is at AQF level 8 The fact that he has enrolled in the course and has a plan for his future education in Australia is a matter that the Tribunal places a lot of weight on ,in favour of the visa not being cancelled.

42. The applicant came here after being granted a student visa in mid-2018.The applicant has not been in Australia for very long. He tried to fix his problem after failing his studies. The Tribunal has some sympathy for his position as he had never lived away from home and he could not adjust. He was prepared to return to India after he did not pass his studies and it is to his credit that he has remained in Australia to pursue further studies.

43. The Tribunal has weighed all of the information and evidence. The Tribunal is satisfied by his  evidence and the information placed before the Tribunal. The applicant did try to continue to study and did try to fix the reason for the breach after finding out that his visa was going to be cancelled. The applicant appears to be someone who genuinely wishes to study and behave appropriately. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

44. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Noelle Hossen
    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.