1513974 (Migration)

[2016] AATA 3849

1513974 (Migration) [2016] AATA 3849 (18 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sachit Bartaula

CASE NUMBER:  1513974

DIBP REFERENCE(S):  BCC2015/1704203

MEMBER:David McCulloch

DATE:18 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s 573 Higher Education Sector visa.

Statement made on 18 May 2016 at 9:08am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 October 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).

2. The applicant is a national of Nepal born on 4 April 1991. The visa subject to cancellation was granted on 23 November 2012.  That visa was subject to condition 8202.

3. On 14 August 2015, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 10 October 2014. The applicant provided a written response to the NOICC.  On 7 October 2015, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 12 May 2016 to give evidence and present arguments. The Tribunal also heard evidence from Mr Max Auroa. The applicant was represented by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   THE CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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 been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 10 October 2014 (the course that ended on this day was an Intensive IELTS course that had started on 15 September 2014).

11. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

12. In the hearing, the applicant agreed that he had not been enrolled in a registered course from 10 October 2014 until 20 August 2015 (which was the date of the Confirmation of Enrolment in a Certificate IV in Commercial Cookery due to commence on 24 August 2015).

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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.

15. 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). These matters include: the purpose of the visa holder's travel to and stay 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 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); 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.

16. The Tribunal deals the applicant’s claimed reasons for the breach and whether the circumstances were extenuating and beyond his control.

17. In the written response to the NOICC, the applicant indicated that he did not enrol in his last Bachelors course at King’s Own Institute. (Records show that the applicant was due to commence a Bachelor of Business (Management and Finance) on 14 July 2014 but this was cancelled for non-commencement of studies).

18. The failure to enrol was because the applicant was thinking of changing his career to hospitality. The applicant worked in hospitality and his employer showed an interest in sponsoring him on a work visa. The applicant was confused and missed a few enrolment intakes. The applicant has finally decided to enrol in a Certificate IV in Commercial Cookery and then a Diploma of Hospitality, leading to a Bachelor of Business at Holmes College.  The cookery course was to start on 24 August 2014. Confirmation of Enrolments are provided for the three courses enrolled in. The applicant admits to non-compliance and apologises. He indicates that he has been a good student complying until July 2014. The applicant referred to information sent concerning previous courses completed. The applicant hopes to be given the opportunity to rectify his mistake and keep the visa so he can complete his courses and return to Nepal.

19. In the Tribunal hearing, the applicant indicated that his failure to enrol was due to him having applied for a 457 visa and his agent telling him that he did not need to study. The applicant’s adviser clarified that the applicant had himself not applied for the 457 visa but there had been the sponsor approval for nomination. Provided to the Tribunal at hearing was the Department notification of a nomination refusal in respect of the sponsor, Mazyan Enterprises Pty Ltd, Maxyan Trust, listing the applicant has the nominated person. The date of application is 7 May 2015 and the date of refusal decision is 23 June 2015.

20. Mr Max Auroa gave evidence to the Tribunal.  He had been the applicant’s employer. He gave evidence to the Tribunal seeking to confirm that the migration agent had told the applicant he did not need to study due to the progression of the 457 application.

21. The Tribunal has credibility difficulties with the applicant’s, and Mr Auroa’s, claim that the applicant was told by the migration agent that he did not have to study because of the sponsor approval application.

22. Firstly, this was not an explanation that the applicant gave in response to the NOICC.  If it were true that the applicant had been told by his agent that he did not need to study while the application was on foot, the Tribunal considers that the applicant would have specifically indicated this in response to the NOICC.

23. Secondly, the timing of the nomination application and refusal is not consistent with the claims. The nomination application was not lodged until May 2015. It was, however, from 10 October 2014 that the applicant failed to be enrolled. It does not make sense that the nomination application would be a cause for the applicant believing that he did not need to be enrolled, at least from October 2014 until May 2015.

24. Thirdly, the applicant equivocated in the hearing as to whether the agent told him he should study, and, it is not clear, given the evidence by the applicant in the hearing, why he thought he did not need to study after the IELTS course ended.

25. The applicant told the Tribunal that the agent said that he did not need to study, but the applicant then said that his agent did say that he should do some study which is why he undertook the IELTS preparation course (from 15 September 2014 to 10 October 2014). The applicant was not thereafter able to explain what changed when the IELTS course ended on 10 October 2014 such that the applicant thought that he did not need to be enrolled or study beyond that point. Again, the timing of the nomination application is not consistent with the claims.

26. Fourthly, the Tribunal finds it is unlikely that a migration agent would advise the applicant that he had no obligation to study whilst holding a Student visa due to either a 457 application or a nomination application. Such advice would be plainly wrong. Whilst the Tribunal accepts it is possible that a migration agent may provide negligent advice, the Tribunal finds it more likely, particularly noting the other credibility concerns, that no such advice was given.

27. Considering all these issues, the Tribunal does not accept that the applicant was told by his migration agent that he did not need to study from 10 October 2014 due to any application associated with a 457 visa or for any other reason.

28. The Tribunal does not consider that there are extenuating circumstances out of the applicant’s control for the failure to be enrolled on this account.

29. While the Tribunal is prepared to accept that, when the applicant finished the IELTS course,  he may have been confused and uncertain as to what he would do next, and that he wished to pursue employment related visa options, the Tribunal is not satisfied that these issues would constitute extenuating circumstances beyond the applicant’s control for the breach. It should have been clear to the applicant that he had an obligation to be enrolled and studying in terms of courses required for the purpose of his 573 visa. The Tribunal does not consider that some degree of uncertainty or confusion is extenuating and out of the applicant’s control for the failure to take action to meet his visa requirements for a period of ten months.

30. The Tribunal is not otherwise satisfied that there is evidence which establishes extenuating circumstances beyond the applicant’s control for the breach.

31. The breach is not a transitory or temporary. It is a breach of considerable duration, ten months. The Tribunal considers that the breach is significant.

32. The Tribunal considers the purpose of the applicant’s travel to and stay in Australia, and his history of study. The applicant, in the hearing, acknowledged that whilst in Australia since early 2009 he has been here to study. The first Student visa the applicant held was a TU-572 Vocational Education and Training Sector visa.

33. The applicant provided to the Tribunal documents concerning completion of the following courses:

    ·Certificate IV in Financial Services (Accounting), 23 October 2009 at Cornell Institute of Business and Technology;

    ·Diploma of Accounting, 21 April 2010 at Cornell Institute of Business and Technology;

    • Advanced Diploma of Accounting, 20 October 2010 at Cornell Institute of Business and Technology; and
    • Diploma of Management, 22 September 2013 at Australian Pacific College.

34. The Provider Registration International Student Registration System (PRISMS), to which the Tribunal has access, shows a Certificate IV in Marketing was completed on 16 December 2012, which had commenced on 30 April 2012. It also shows the applicant as having finished an Advanced Diploma of Management on 26 June 2014.

35. In the hearing, the applicant agreed, based on information before the Tribunal, that he had been granted a TU-573 Higher Education Sector visa on 6 January 2011.

36. It was apparent from the discussion with the applicant in the hearing of the PRISMS record that the applicant commenced a Bachelor of Professional Accounting in November 2010. He indicated that he struggled with this course which he studied for six months and then left. Similarly, the applicant struggled with a Bachelor of Business (Accounting) which commenced on 25 July 2011. The PRISMS record shows the applicant ceased his studies in July 2012, which the applicant agreed in the hearing that he had done.

37. The Tribunal is prepared to accept that the applicant was fulfilling the purpose of his stay in Australia as a student, broadly speaking, up until 10 October 2014. A different question for the Tribunal is whether the applicant has been making appropriate progress in terms of the study specifically required by the TU 573 visa. This is dealt with further below.

38. The Tribunal is not satisfied that the applicant was fulfilling the purpose of his stay in Australia as a student during the period in which he was not enrolled or studying from October 2014 until August 2015.

39. In his response to the NOICC, the applicant had indicated that he was reconsidering his study and career goals during 2014 and decided he wanted to focus on hospitality. This is consistent with the applicant enrolling in the Certificate IV in Commercial Cookery in August 2015. The applicant indicated in the hearing that he studied this course until the end of 2015 and then stopped studying.  He provided a document dated 9 May 2016 which he indicates was provided to Holmes Institute, the education provider, asking to be re-enrolled in the Certificate IV in Commercial Cookery and explaining the reasons why he did not attend for the first part of 2016. This was because there were family issues in his home country that were having an impact on his married life. The applicant indicated that he could not cope well and temporarily ceased his education. The applicant indicated that he was bedridden. He indicated that the issues have now resolved and he requests re-enrolment.

40. The Tribunal explored with the applicant whether he had sought a deferral of this course if there were difficulties he was facing. Initially, the applicant said that he had a discussion with the Dean who refused the deferral but there was no written or formal request. Then a letter was provided to the Tribunal to Holmes Institute dated 23 November 2015 from the applicant requesting time off due to family difficulties in Nepal. The letter indicates that the applicant will be contacting the administrative office to discuss re-enrolment. In the hearing, the applicant indicated that he never proceeded to contact the office to discuss the issue further.

41. The failure of the applicant to make a formal deferral request is consistent with the letter dated 9 May 2016 which seeks to provide a retrospective justification for non-attendance rather than suggesting there was any prior notification of these issues or a request for a deferral.

42. In the circumstances, even if the Tribunal were to accept that issues in Nepal created such difficulty for the applicant that there were compassionate or compelling circumstances that would have justified the deferral, the Tribunal is not satisfied that the applicant took all steps that he needed to seek a deferral, which is what he should have done, if there were family problems.

43. The Tribunal therefore draws some adverse inference from the applicant’s failure to study in the first half of 2016. Even though the applicant did not hold a Student visa at this time, the facts of him studying or not is relevant to whether the applicant is a genuine student, which is the Tribunal considers this is a relevant discretionary factor.

44. The applicant indicated in the hearing that he expects, within days, to have a Confirmation of Enrolment in the Certificate IV in Commercial Cookery to start in the very near future. The Tribunal is prepared to accept this.

45. Of concern to the Tribunal is the extent to which the applicant has demonstrated either an ability or a commitment to a course of study leading to a higher education sector course as required by his 573 visa. The applicant has held 573 visas since January 2011. In that time he has commenced and withdrawn from two Bachelor courses due to their difficulty. The applicant has failed to commence another two Bachelor courses. On material provided to the Tribunal, the applicant is not scheduled to commence a Bachelor course, a Bachelor of Business until March 2018. That means the applicant will have been in Australia on 573 visas for seven years prior to starting a higher education sector course.

46. Further, the Tribunal is not convinced that the applicant has any intention to undertake a Bachelors course in the future, notwithstanding enrolment. In response to the NOICC, the applicant indicated that he was reassessing his goals and was seeking to change them to hospitality, which was consistent with his enrolment in the Certificate IV in Commercial Cookery.  The Tribunal sought to explore with the applicant in the hearing the link to this goal and his future enrolment in a Bachelor of Business. The applicant did not explain this to the Tribunal in a way that satisfied it that the applicant’s hospitality goals require the studying of a Bachelor of Business. The applicant had indicated in response to the NOICC that he was changing his goals from the Bachelor of Business (Management and Finance) to hospitality. In that context it does not make sense to the Tribunal that the applicant would have a genuine goal to progress back to a Business degree.

47. Considering the whole history of the applicant’s study, the Tribunal is not satisfied that the applicant currently has either the ability or the inclination to study a higher education sector course in the future, including the Bachelor of Business, in which he is enrolled. This is a factor which the Tribunal takes as adverse to applicant in the exercise of its discretion.

48. The applicant’s adviser submitted that a key focus of the Tribunal should be on whether the applicant is or is likely to be a genuine student and he indicated that this was the ground on which the delegate should have made his decision (as per s.116(1)(fa)(i) of the Act). The Tribunal noted that this was not the ground of cancellation the delegate based his decision on. The Tribunal indicated that it would look at the question of whether the applicant is a genuine student in the exercise of its discretion.

49. The Tribunal is prepared to accept that, broadly speaking, the applicant was behaving as a student in Australia up until 10 October 2014 and meeting the purpose of his travel to and stay in Australia.  It does not accept that he was doing so from that date until 24 August 2015. It accepts that he was studying for the remainder of 2015 and a genuine student for this period. It does not consider the applicant was acting as a genuine student for the first half of 2016. The Tribunal is prepared to accept that the applicant has the current intention currently to study a Certificate IV in Commercial Cookery and will enrol shortly in such a course.

1. The Tribunal considers that, since October 2014, for a significant proportion of this time. the applicant has not been behaving as a genuine student. Significantly, the Tribunal does not consider that the applicant has the ability or genuine commitment to progress on a pathway of study to a higher education sector course. These facts are adverse to the applicant in the exercise of the Tribunal’s discretion.

2. The Tribunal has no evidence that the applicant has failed to abide by other visa conditions.

3. In terms of compelling reasons for the applicant to remain in Australia or hardship to the applicant and his family if the visa remains cancelled, these issues were explored with the applicant in hearing. The applicant indicated that he wants to remain in Australia to study. He also indicated that he would like to stay further in Australia to work. The applicant indicated that if he does not finish his studies then this will reduce his employment and income prospects. He indicated that if he fails to complete his studies this may exacerbate tensions with his wife back in Nepal. He indicated that he may be ‘mentally tortured’ by his family if he does not finish his studies.

4. The Tribunal has no evidence that the applicant has acted in an adverse way towards the Department.

5. The applicant indicated that there are no persons whose visas would be cancelled consequential upon the cancellation of the applicant’s visa. 

6. The Tribunal acknowledges that if the Student visa remains cancelled the applicant could be an unlawful noncitizen and subject to immigration detention. However, the Tribunal considers the applicant would be in a position to apply for a Bridging visa which would make his status lawful. The applicant currently holds a Bridging visa.

7. The applicant indicated that there are no children in Australia whose interests are affected.

8. When the Tribunal asked the applicant if he feared persecution or significant harm if he returned to Nepal, he referred to ‘mental torture’ from his family. When questioned further about the nature of harm that he feared, the applicant acknowledged that he did not fear persecution or significant harm on this basis. The Tribunal is not satisfied that Australia’s non-refoulement obligations would be enlivened if the visa remains cancelled.

9. In summary, the applicant has failed to be enrolled in a registered course as required pursuant to his visa for a period of 10 months. This is a significant breach. The Tribunal is not satisfied that there are extenuating circumstances out of the applicant’s control in relation to the breach.

10. The Tribunal considers that the applicant has failed to act as a genuine student for a significant portion of the period since October 2014. The Tribunal considers that the applicant does not have the ability or the inclination to progress on a pathway of study to a higher education sector course. The factors are adverse to the applicant in the exercise of the Tribunal’s discretion.

11. The Tribunal accepts that there will be a degree of hardship to the applicant if the Student visa remains cancelled, in terms of not being able to stay in Australia and progress with study of some sort, as well as work, and limiting other immigration options to stay in Australia. Weighing in the applicant’s favour, the Tribunal takes into account that the applicant successfully passed a number of courses from 2009 until 2014 and was a genuine student for this period.

12. Balancing all factors, the Tribunal is not satisfied that such hardship, successful completion of a number of courses, or any other discretionary factors that in the applicant’s favour outweigh the issues adverse to the applicant. The Tribunal considers that the preferable view is that the visa remains cancelled

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

    DECISION

14. The Tribunal affirms the decision to cancel the applicant’s 573 Higher Education Sector visa

    David McCulloch
    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.