Yadav (Migration) - [2024] AATA 3644

Yadav (Migration) [2024] AATA 3644 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Prabhat Yadav
REPRESENTATIVE:  Mr Vipul Goyal (MARN: 2418571)
CASE NUMBER:  2314607
HOME AFFAIRS REFERENCE(S):          BCC2023/2238774
MEMBER:T. Quinn
DATE:4 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 September 2024 at 6:31pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – discretion to cancel visa – online study, study difficulty, mental health and father’s physical health – working for at least some of the time – new enrolment made after receiving department’s notice of consideration cancelled when visa cancelled – vague, evasive and uncorroborated evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, condition 8202(2)(a)
CASES
Chand v MIEA (unreported, FCA, 7 November 1997)
MIMA v Rajalingham (1999) 93 FCR 220
Nejad v MIMA [1999] FCA 1827; [2000] FCA 741
Sein v MIMA (2001) 114 FCR 370
Selvadurai v MIEA (1994) 34 ALR 347
T v MIMA [2000] FCA 467
Wang v MIMA [2000] FCA 963
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant was granted a Subclass 500 (Student) visa (‘the visa’) on 24 March 2022 on the basis of an enrolment in a Bachelor of Information Technology with course dates from February 2022-December 2022. The applicant had his course deferred on the basis of compassionate/compelling circumstances and did not arrive in Australia until 3 April 2022 with a view to starting his course in July 2022.
The expiry date of the applicant’s student visa was December 2024, providing for more than two years during which the applicant would be permitted to reside in Australia for the purposes of full-time study.[1]
[1] See delegate’s decision.
On 11 September 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s visa the basis that the applicant had failed to comply with a condition of their visa.[2] In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full-time registered course.[3] The applicant did not comply with this condition of his visa from 21 August 2022-21 August 2023.[4]
[2]under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
[3] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
[4]See delegate’s decision.
On 17 September 2023, the applicant applied to this Tribunal for a review of the delegate’s decision to cancel the visa.[5]
[5]Pursuant to sections 338(2) and 347 of the Act. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
The applicant was listed to appear before the Tribunal via video hearing on 3 September 2024 to give evidence and present arguments. However, at the commencement of hearing the applicant requested that this hearing be converted to a telephone hearing and this request was accommodated. The applicant was represented in relation to the review and his representative also attended the hearing of 3 September 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference and to modify this hearing to a telephone hearing to accommodate the applicant’s needs. The Tribunal determined it was reasonable to hold a hearing by video or telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, economical and quick and the delay that would occur if the hearing were not be conducted by video or telephone in exercising its discretion.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be affirmed. My reasons follow.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.
Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:
a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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
c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course of study or training.
The applicant was enrolled in a Bachelor of Information Technology (‘IT’). The applicant’s enrolment was cancelled on 21 August 2021 for non-commencement of studies and the applicant was not enrolled in a full-time registered course of study from that date until August 2023, after he received a notice of intention to consider cancellation (‘NOICC’) on 24 July 2023.
At no stage has the applicant contested the fact that he was not enrolled for this period. Therefore, there are grounds for cancellation.
For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.
Timeline of study and enrolment history
The applicant was granted a student visa on 24 March 2022 on the basis of an enrolment in a Bachelor of IT with course dates from February 2022-December 2022. The applicant had his course deferred on the basis of compassionate/compelling circumstances and did not arrive in Australia until 3 April 2022 with a view to starting his course on 18 July 2022.
On 21 August 2022, the applicant’s enrolment was cancelled for non-commencement of studies. The applicant remained unenrolled until after receiving the NOICC in July 2023.
On 14 July 2023, the applicant was sent the NOICC. This was sent via registered post to his registered address in India.
On 21 August 2023, the applicant enrolled in a Bachelor of Business with course dates from August 2023-January 2026. These enrolments were cancelled when his student visa was cancelled, and he does not presently have study rights on the bridging visa he has held since that time.
There is no evidence before me that the applicant has completed any units or certificates in any area of study in Australia.
Consideration of discretion to cancel the visa
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. I have had regard to the circumstances of this case, including matters raised by the applicant and her representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘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
I refer to and repeat paragraphs 16-20 above.
The applicant has filed evidence that his father had a road traffic accident and also suffers from hypertension and has had more than one heart attack. There is a medical document on the Department file indicating the applicant’s father required bed rest for many months from July 2022. At hearing, the applicant gave evidence that his father was driving for a long period without a break, went on to the curb and his car turned over. He gave evidence that this resulted in injuries to his father’s back and that the car was written off and that his father was hospitalised for some time due to his back and was in a lot of pain and that this was very stressful combined with his existing hypertension. Submissions have been filed that the applicant found this very challenging and it impacted his ability to study, saying he had anxiety, frustration and homesickness.
The applicant has filed submissions indicating that he started his Bachelor of IT but had trouble comprehending the material and that the online learning environment was very challenging and that this also caused him to suffer from emotional and mental ill health.
When asked at hearing whether the applicant sought any sort of help from a mental health or medical professional, the applicant gave evidence that he was taking medication from India. Submissions on file give a number of reasons why the applicant did not seek help for his mental health including cultural shame and stigma. When I put this to the applicant, I found his answers evasive and do not consider he meaningfully answered my questions about this. There is no corroborating evidence of any medication having been prescribed or being taken from India or otherwise and this evidence has not been raised with the Department or Tribunal at any stage prior to hearing. I am very troubled by this.
The applicant claims that he wishes to complete his studies in Australia and to return to India to start his own business. He claims that in India they do not award recognition of prior learning (‘RPL’) and any study he undertook would not be credited and that his parents have invested considerable funds in sending him over to Australia to study and it would be a waste and disappointing not to complete a course in Australia. I note the applicant has not completed any units in any courses and gave evidence to that effect at hearing. I do not consider the submissions in relation to India’s RPL policy relevant in these circumstances given there is no credit to be granted in any case.
The applicant gave evidence of the work he has engaged in since his arrival onshore, but this was confused, vague and inconsistent. Initially, the applicant said it took five or six months to obtain work onshore and then he worked for a car wash for two months. He gave evidence that he later worked as a construction labourer but when I asked about when he started and finished that job, he became evasive and started talking about his father’s accident. When I came back later in the hearing to this issue asking when he stopped working in labouring, the applicant said he was not doing it regularly and there was not a lot of work. When I again asked when he stopped this work, he said he left that workplace in August because he came to know of his father’s accident. When I clarified whether he was referring to August 2023, the applicant said he stopped working in August 2022. When I put to him that he had earlier given evidence of it taking five or six months to get work which would mean he did not get work until September or October 2022, the applicant simply said he worked for up to six to eight months doing car washing some days and doing construction labouring, alternating and both of them he did for a maximum of six or eight months at both places. I found this evidence very evasive and difficult to follow. I consider the evidence suggests the applicant was working onshore for at least some of the time during which he was onshore on a student visa in breach of his student visa conditions by not being enrolled in a registered course of study.
In relation to the applicant’s submissions as set out in paragraph 24 above, I note the delegate’s decision which indicates that the applicant’s enrolment was cancelled for non-commencement of studies and that the applicant’s course provider released a media statement indicating that there would be a phased return to face to face class from early 2022 with ‘COVID normal’ being achieved by February 2022. At hearing, the applicant initially gave evidence that for the first six months of his course everything was online, and he could not understand and did not have a contact to check or clarify and could not understand anything. when I asked directly whether he had actually attended any classes, the applicant conceded that he had not attended any classes in his Bachelor of IT. When I put to him the delegate’s statement about his course provider’s media release about return to face to face classes and indicated that this appeared to be inconsistent with the applicant’s evidence, the applicant again became evasive and began talking about deferment of his course and then gave evidence that he had an agent in India who was not providing him with any information about how or when or where to attend his classes. At no stage prior to hearing has the applicant raised any issue or complaint about his agent in India. When I put this to him, he said he had enrolled from March but took deferment which did not address the concern raised with him in any way. I am very troubled by the applicant’s new evidence at hearing regarding his agent in India and his complaints about this person. When I asked whether the applicant had made a formal complaint about his agent in India, the applicant gave evidence that his father had tried reaching out but could not get in touch with him.
I empathise with the applicant in relation to the aforementioned challenges he has faced. However, challenging personal events, illness of family members and other unkind life stressors must be dealt with by everyone at some point in their lives. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they have to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the applicant. There is no psychological evidence, beyond the evidence of the applicant himself, that provides an adequate account of his mental state during his time of breaching his student visa. I am therefore unable to form any view as to whether the applicant was suffering any clinically diagnosable mental health condition that put his suffering into a category that goes beyond the ordinary mental difficulties that people suffer in dealing with life’s stressors, and that this may have been a cause of him remaining unenrolled for a period of twelve months. Further, I find it difficult to accept that the applicant was finding his personal circumstances too challenging to study but that he was still able to work. I note the applicant’s response at hearing in relation to this (set out above) but do not find it persuasive.
Further, if an individual is residing onshore based on an intention to study, such study should take priority over work. There are financial requirements before such visas are granted. It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, in breach of the conditions of a student visa upon which their right to reside is based. The applicant has remained in Australia on a student visa for 12 months and has given evidence he was able to work but not study for at least some of those months. This evidence raises concerns about the true nature of the applicant’s intentions.
I understand that a visa cancellation can be disappointing for visa holders and their families, but I do not consider this constitutes a compelling need to remain in Australia.
I have considered all the evidence before me and do not consider the applicant has a compelling need to remain in Australia. I place some weight in favour of cancelling the applicant’s visa in this regard.
Circumstances in which ground of cancellation arose
I refer to and repeat paragraphs 22-31 above.
I accept that the applicant found his father’s accident and ill health challenging.
I empathise with the applicant in relation to his suffering and accept this was a challenging time for him. However, the option to return to India to avoid breaching his visa conditions was open to the applicant at all times. Instead, he failed to resume any study at all for 12 months, was issued with a NOICC and his visa was subsequently cancelled. This is not the conduct one would expect of a genuine student who takes their responsibilities in residing onshore on the basis of a student visa seriously.
I am also troubled by the evidence that the applicant did not re-enrol until after the date of the NOICC.
I acknowledge the applicant’s father’s accident and health are out of his control and that mental ill health can also feel out of an individual’s control to a significant extent. However, I consider that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same. It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa. I place some weight in favour of cancelling the applicant’s visa in this regard.
Extent of compliance with visa conditions
The applicant has otherwise complied with student visa conditions. However, there is no evidence before me that the applicant many any meaningful academic progress from the time his student visa was granted in March 2022. This is not what one expects of a genuine student who has been onshore on the basis of a student visa. Further, the applicant’s breach of the condition of the visa is significant, being twelve months. I consider the twelve month breach a significant breach and give weight in favour of cancelling the applicant’s visa in this regard.
The degree of hardship that may be caused to the visa holder and any family members
The applicant gave evidence at hearing and submissions were made by his representative at hearing about how disappointing it will be for him and his parents if he has to return to India without any qualifications, especially after the financial investment they have made in him and his study. I empathise with the applicant and his parents.

The applicant wishes to complete his study and start his own business in India.
I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study.
I recognise that the hardship is felt by family members who may also feel let down and disappointed.
I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa. Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and I give these reasons limited weight in my considerations.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department. I give some weight against cancelling the applicant’s visa in this regard.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
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 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 visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration in favour of the applicant because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the visa would breach any international obligations. I place no weight on this in favour of or against the applicant.
Evidence Generally and Credibility
The Tribunal Guidelines in relation to assessing credibility dictate that evidence is to be assessed in its entirety, not just in isolated parts.[6] The guidelines also state that Members should focus on what is objectively or reasonably believable in the circumstances. The Tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.[7] Where evidence is incoherent, vague or lacking the detail or knowledge where greater detail or knowledge might be expected of a person in the applicant’s claimed position, the weight placed on the applicant’s evidence may be limited and the applicant’s credibility may be questioned.[8]
[6]Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, von Doussa, Moore and Sackville JJ, 7 November 1997); Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J, with whom North J agreed, at [50]; Sein v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 370
[7]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at 348.
[8]Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827 per Tamberlin J at [9], upheld on appeal, Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 741; Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 963 per Goldberg J at [20] to [23]; “T” v Minister for Immigration and Multicultural Affairs [2000] FCA 467 per Drummond, Matthews and Mansfield JJ at [27]-[47]
I found the applicant to be evasive and inconsistent in his evidence, particularly in relation to questions on topics where his answers were likely to compromise the strength of his case. I did not find him to be a credible witness.
CONCLUSION
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 Subclass 500 (Student) visa.
T. Quinn
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.