Vineet Kumar (Migration)
[2024] AATA 1649
•29 May 2024
Vineet Kumar (Migration) [2024] AATA 1649 (29 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Vineet Kumar
Mrs Swati WaliaREPRESENTATIVE: Mr Puneet Gupta (MARN: 1681569)
CASE NUMBER: 2218406
HOME AFFAIRS REFERENCE(S): BCC2022/2772413
MEMBER:David McCulloch
DATE:29 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Statement made on 29 May 2024 at 4:09pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 600 (Student) – not enrolled in full-time registered course – discretion to cancel visa – completion of masters degree – enrolments in diploma course in different subject area cancelled – financial difficulties, lack of proper action by agent and online learning during COVID restrictions – new graduate diploma course enrolment made after receiving department’s notice, with no units completed – in home country at time of hearing – member of family unit wife – consequential cancellation of visa with no jurisdiction to review – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
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 6 December 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The visa that has been cancelled was granted on 1 December 2020 for a stay period until 6 December 2022.
The applicant was sent a notice of intention to consider cancellation (NOICC) of the visa on 14 September 2022.
A migration agent wrote to the Department indicating that they were acting for the applicant. It was anticipated there may be a request for an extension of time to respond to the NOICC. The Department wrote to the agent indicating that a form needed to be completed to enable the agent to act or receive communication on behalf of the applicant. The cancellation decision indicates that the forms were provided with certain documents outlined below. However, there was no request for an extension of time to provide a response to the NOICC.
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicant returned to India on 23 March 2024. The applicant appeared before the Tribunal by telephone on 21 May 2024 to give evidence and present arguments. Although an interpreter was present, the applicant elected to communicate in English.
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 (Cth). 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:
·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).
The NOICC indicates that the applicant has not been enrolled in a registered course since 4 March 2021 and therefore has not complied with subclause (2)(a) of condition 8202. The applicant has provided evidence of, after receiving the NOICC, enrolling in a Graduate Diploma of Management (Learning) on 20 September 2022.
In the hearing the applicant agreed that he was not enrolled in a registered course from 4 March 2021 until 20 September 2022.
On the evidence before the Tribunal, 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
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’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
The documents referred to above provided to the Department by the migration agent after the issue of the NOICC were as follows:
·A confirmation of Enrolment for the applicant in a Graduate Diploma of Management (Learning) that was to commence on 26 September 2022. The enrolment was created on 20 September 2022.
·A scanned image of a page of a passport listing the name of father/legal guardian and other. The page also contains an address.
In the hearing, the Tribunal discussed with the applicant his study and other history in Australia. The applicant came to Australia in 2014 commencing studies and successfully completing a Master of Professional Accounting in November 2017. The applicant then indicated he obtained a temporary graduate visa for two years and worked in Australia. In early 2020, the applicant enrolled in a Diploma of Leadership and Management.
The Provider Registration and International Management System (PRISMS) indicates four enrolments in this course over the period February 2020 until March 2021. The first enrolment was cancelled due to a change in student enrolment. The second and third enrolments were cancelled for non-payment of fees. The final enrolment was cancelled on 4 March 2021 for ‘disciplinary reasons’.
The applicant indicated that he did not successfully complete any units as part of this course.
In the hearing the applicant referred to difficulties paying fees after the payment of an initial fee for an upfront two to three month period. The applicant indicated that there were deficiencies and negligence on the part of his agent who indicated the potential for a deferral of the course but did not take this action.
The Tribunal asked the applicant as to what the ‘disciplinary reasons’ were that caused the final cancellation of enrolment of this course on 4 March 2021. The applicant indicated that this was due to non-payment of fees. The Tribunal put to the applicant that it might be thought that there was a different reason given that prior enrolments have been cancelled for the express reason of non-payment of fees which would indicate that ‘disciplinary reasons’ refers to another transgression.
The applicant maintained that the reason for cancellation was the non-payment of fees and lack of proper action by the migration agent.
The Tribunal indicated to the applicant that it might make allowances for some period of non- enrolment for the reasons stated but, as it was, the applicant had not been enrolled in a registered course for a period of approximately 18 months. If the agent was not doing their job properly, the applicant should have taken steps to obtain another agent or further advice.
The applicant acknowledged responsibility and during the course of discussion of this issue in the hearing indicated that he was 80% to blame and his agent 20%.
The Tribunal put to the applicant that this apportioning by him of this level of responsibility makes it question whether it can be said that there are extenuating circumstances beyond the applicant’s control but explain or justify his failure to be enrolled in a registered course for this extensive period of time. The applicant referred problems due to COVID requiring online learning difficulties logging in to the system.
As indicated, the Tribunal in the circumstances would make some allowances for non-enrolment based on financial difficulties, problems with migration agents and difficulties due to COVID-19. However, in the circumstances, the Tribunal is not satisfied that these difficulties explain and justify the applicant not being enrolled in a registered course for the extensive period of approximately 18 months.
This is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.
It is positive for the applicant in the exercise of the Tribunal’s discretion that he successfully completed a Masters of Professional Accounting in Australia in 2017. However, it is adverse to the applicant that he was variously enrolled in different enrolments in a Diploma of Leadership and Management from early 2020 until March 2021 but did not pass any unit in the course.
The applicant indicates that if the visa is reinstated he wishes to return to Australia to continue studying the Diploma of Leadership and Management (with no units being passed to date) then progressing to the Advanced Diploma of Leadership and Management. The applicant then would use these qualifications to obtain employment in either Australia or India.
The applicant indicated that the key hardship to him if the visa remains cancelled would be his inability to progress with these studies and employment ambitions.
The Tribunal accepts a degree of hardship to the applicant in this respect, albeit the fact that the applicant made very poor progress in 2020 and early 2021 in his studies of the Diploma of Leadership and Management, not successfully passing any unit in any course.
The Tribunal accepts there could be hardship to the applicant if the visa remains cancelled in terms of significant limitations on his ability to apply for many other Australian visas for a significant period.
The applicant in the hearing indicated that he does not fear persecution or significant harm on return to India. Thus breaches of Australia’s non-refoulment obligations are not a relevant discretionary factor. The applicant indicated that there are not children whose interests are affected by the cancellation therefore this is not a relevant discretionary factor.
These, in the Tribunal’s view, are relevant discretionary factors which the Tribunal balances.
In summary, the Tribunal is not satisfied that financial issues, problems with the agent or difficulties due to COVID-19 including the need to study remotely, justify or explain the applicant not being enrolled in a registered course for the length of a period of approximately 18 months. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify this period of non-enrolment.
This significantly adverse discretionary factor is not outweighed by the hardship the applicant would face if the visa remains cancelled, particularly due to not being able to undertake his future desired study in Australia, previously completing a Master’s degree in Australia, or any other discretionary factors in the applicant’s favour.
Balancing factors, the Tribunal determines to exercise its discretion to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.
David McCulloch
MemberATTACHMENT
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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Remedies
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