1510542 (Migration)

1510542 (Migration) [2016] AATA 4851 (27 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ranbir Choudhary
CASE NUMBER:  1510542
DIBP REFERENCE(S):  BCC2014/3107353
MEMBER:Christopher Smolicz
DATE:27 June 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 27 June 2016 at 10:07am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in registered course – Applicant not enrolled in registered course – Significant period of non-enrolment – Medical conditions – Lack of evidence of medical conditions – Hardship caused by cancellation – Hardship does not outweigh grounds for dismissal
LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 July 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with visa condition 8202(2)(a) because he 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.
The applicant appeared before the Tribunal on 10 June 2016 to give evidence and present arguments.
An interpreter in the Hindi and English languages was present at the hearing however the applicant was able to conduct the hearing in the English language.
The applicant provided the Tribunal with a copy of the delegate’s decision, submissions and various documents in support of the application.
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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
The applicant is a 25 year old single male. He is a citizen of India. He arrived in Australia on 2 February 2014 as the holder of a Subclass 573 Higher Education Sector Visa. The visa was granted on 9 January 2014. At time of grant the applicant was enrolled to study the following package course at The University of Western Sydney (UWS):
·     English Language Program (10 February 2014 to 20 June 2014)
·     Diploma in Business and Commerce Fast Track (22 June 2014 to 30 January 2015)
·     Bachelor of Business and Commerce (22 February 2015 to 31 January 2017)
In May 2015 the Department accessed the Provider Registration and International Student Management System (PRISMS) which indicated the applicant had ceased enrolment at UWS.
On 25 June 2015 the Department issued the applicant with a Notice of intention to consider cancellation of his student visa (NOICC) because he had not enrolled in a registered course of study since 15 April 2015 and was in breach of condition 8202(2)(a).
The applicant provided the following submissions in response to the NOICC:
·     He did not know anyone in Sydney when he arrived in Australia and was feeling homesick. He spoke to a friend who suggested that he move to Perth. He was depressed and it took him a few weeks to get normal. He approached a migration agent and attempted to get a letter of release from UWS so that he could continue his studies in Perth.
·     His agent obtained an offer letter from Stanley College in Perth but he was not given a Certificate of Enrolment (CoE).
·     He approached another agent and obtained an offer letter from Empyrean College but was also not given a CoE. The applicant provided copies of the offer letters in support of his claims.
·     He was advised that he needed to get a release letter from UWS before he could get a CoE.
·     The applicant said that based on incorrect advice of his agent he applied to the Migration Review Tribunal when he received the NOICC. He was subsequently advised that the department had not yet made a decision to cancel his visa.[1] The applicant said that all his agents misguided him.
·     He wants to continue with his studies in Australia.

Tribunal Hearing

[1] See MRT Decision ref 1508791

The applicant said that he only attended UWS for approximately 7 days and submitted one assignment and relocated to Perth. He did not complete his English language programme and did not commence any other study. His last day of study was 19 February 2014.
The applicant said he tried to enrol at Stanley College, Western Australia in a Certificate III and IV in Commercial Cookery and Diploma of Hospitality. He provided the Tribunal with copies of correspondence from Stanley College dated 10 March 2015 confirming his enquiries.
The applicant said he also tried to enrol at Empyrean Education Institution (EII), Western Australia, in a Certificate IV in Commercial Cookery and Diploma of Hospitality. He provided the Tribunal with copies of correspondence from EII which confirm he attempted to enrol in the college on 25 March 2015.
Information located on the Department’s file confirms that the applicant never enrolled at EII or Stanley College.
The Tribunal told the applicant that he was granted a subclass 573 Higher Education Sector visa and that he travelled to Australia to study a Bachelor degree. The Tribunal noted that the letters of offer issued by EII and Stanley College were for courses at the lower Vocational Education and Training Sector level. The Tribunal told the applicant that it appeared he had no intention of studying in the Higher Education Sector when he arrived in Australia.
The applicant said his agent in India told him that he would only be able to get a visa if he studied a bachelor degree in Sydney and he followed the advice of his agent at the time. The applicant said that he could study a Bachelor degree after he finished his Diploma of Hospitality. The Tribunal noted that there was no evidence before the Tribunal to support this claim that he intends to study at the Bachelor level.
The applicant provided copies of his email communication with the UWS. The Tribunal notes that emails from UWS sent in March 2014 suggest that the applicant did not inform the college that he moved to Perth. The college noted that he had been absent from class since 19 February 2014. The UWS advised the applicant that if they did not hear any response they would advise the Department of Immigration and his CoE would be cancelled which would affect his visa and stay in Australia.
The applicant said he subsequently contacted UWS and sought the help of many different migration agents but they gave him conflicting advice and were of little assitance.
The Tribunal noted that the UWS College has an Overseas Student Transfer Policy which is located on the internet and details the procedures relevant to transferring courses. [2]
[2]>
The applicant said he was suffering from depression and began to have suicidal thoughts due to being alone in Sydney. He had no moral support. When he was in Sydney he visited a general practitioner (Dr Fouad Zaki) to discuss his health problems and was told to move to a place where he had friends and family support.
The Tribunal noted that he had only provided a one page medical invoice dated 19 February 2014 which states that he attended a standard consultation with Dr Fouad Zaki.
The applicant conceded that he only attended at the doctor on one occasion. He said he was prescribed medication but did not take it because he could not find a pharmacy. He could not name the medication. He did not attend any counselling sessions or seek help from the university because he could not find the counsellors.
In the last week of April 2014 he flew to Perth where he has friends and relatives. His friend helped him with his depression. He said that he did not travel to Perth for work but was able to obtain employment soon after he arrived in Perth as a security guard.
The applicant said he comes from a village in India, his family are uneducated and he belongs to a minority caste and had limited information about what he should study in Australia. His family have little money and spent most of their savings on his studies.
The Tribunal questioned the applicant about his education in India. The applicant said that he completed 12 years of schooling and completed a two year Business Management Course in Haryana, India.
The Tribunal questioned the applicant about his study plans in Australia. The applicant confirmed that he has not completed any course of study since he arrived in Australia. He has no current offer letter or CoE. He now wants to study hospitality and remain with his friends in Perth who are from his home area in India.
The Tribunal told the applicant that it was concerned that he ceased studying very soon after he arrived in Australia and did not attempt to complete the English Language course before he relocated to Perth.
The applicant maintained that he was depressed and had relatives in Perth who could help him. His evidence about his relatives in Perth was vague and lacking in detail.
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 registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. This was not disputed by the applicant at the hearing.
The Tribunal has had regard to the submissions and evidence and finds that on 19 February 2014 the applicant ceased attending his English Language course and advised UWS on 19 May 2014 that he would not be continuing with his studies and his CoE was cancelled on 17 June 2014. The applicant never commenced his studies in a Bachelor of Business and Commerce or his Diploma of Commerce course and his CoE with UWS were subsequently all cancelled.
Based on the PRISM report which is referred to in the delegate’s decision the applicant has not been enrolled in a registered course since 15 April 2015. Accordingly, the applicant has not complied with condition 8202(2).
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 to exercise its discretion to cancel the visa.
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
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
The applicant was granted a subclass 573 visa on 9 January 2014 to enable him to study at the Higher Education Sector level in Australia. He made no attempt to complete his bachelor course and soon after arriving in Sydney he relocated to Perth and tried to change his enrolment to the Vocational Education and Training Sector level which was not the purpose for which his visa was granted. The Tribunal finds that the applicant never intended to study at the Higher Education Sector level in Australia. He is not currently enrolled in any course of study. The applicant did not give any compelling reasons why he should remain in Australia.
the extent of compliance with visa conditions
As stated above, the applicant only attended his English language class for about 7 days and his last day of study was on 19 February 2014. He ceased attending classes and did not advise his education provider or the department. He only made contact with UWS when he was warned that his enrolment would be cancelled.
He claims he made attempts to obtain a letter of release from UWS and transfer to Vocational Education and Training Sector level course. It is unclear on the information before the Tribunal whether the UWS provided the applicant with a release letter. As discussed at the hearing with the applicant the UWS has a detailed transfer policy for overseas students. The policy details the circumstances when a release letter will not be issued to a student. For example where course fees have not been paid or where the student is seeking to transfer less than four weeks after the student commenced a course or where the course to which the student wishes to transfer is not at the same or higher standard as that offered by the UWS. The policy notes that if a release letter is refused the UWS will provide the student with reasons for the refusal and students have a right to appeal the decision. The Tribunal accepts the applicant’s evidence that he may have experienced difficulty obtaining a release letter from the UWS which made it more difficult for him to secure enrolment with another education provider.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant said he paid $21,432 in course fees to UWS. He claims that his parents are poor and if the visa is cancelled it will cause his parents financial hardship. He claims the UWS did not give him a refund and he has wasted his parent’s money. He provided the Tribunal with a “Request for Fee Refund” which he submitted to the UWS on 18 February 2015. The Tribunal accepts that the applicant will encounter some financial and emotional hardship if his visa is cancelled. The Tribunal accepts that the cancellation of the visa may cause some hardship to the applicant because he will not be able to continue his studies in Australia however this is an inevitable consequence faced by many students who must return home when their visa is cancelled.
circumstances in which ground of cancellation arose.
The Tribunal accepts that the applicant may have felt homesick, as do many overseas students. The applicant also claims that he was depressed when he arrived in Sydney. The Tribunal finds the applicant’s claims that he was depressed and contemplated suicide not supported by any medical evidence. The Tribunal was also not provided with any evidence of support from his friends and/or relatives in Perth who he claims assisted him at the time.
past and present conduct of the visa holder towards the department
The applicant responded to the NOICC and has been in all respects compliant as far as the evidence provides with the requirements of the Department in the cancellation process.
any other relevant matters
The applicant claims he comes from a small village, has uneducated parents and had limited experience and was given poor migration advice before he arrived in Australia. The Tribunal finds that the applicant was 22 years old when he arrived in Australia. He is an educated person who was able to complete a two year Business Management course in India. The Tribunal finds he was in a position to make informed choices about his migration options and the appropriate study pathway in Australia.
There is nothing to suggest that Australia’s obligations under international agreements would or may be breached as a result of cancellation.
There is no evidence before the Tribunal that there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation).
There is no evidence that the cancellation would lead to removal in breach of Australia’s non-refoulement obligations.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal finds the circumstances of the breach are serious. The Tribunal finds that the applicant never had any intention of studying at the Higher Education Sector Level. The applicant has not enrolled in a registered course of study since April 2015. The Tribunal finds it significant that since arriving in Australia in February 2014 he has not completed any course of study.
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 Class TU visa.
Christopher Smolicz
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

[2016] AATA 4851

27 June 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction