1514537 (Migration)

[2016] AATA 4512

1514537 (Migration) [2016] AATA 4512 (13 October 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kapoor Shiv

CASE NUMBER:  1514537

DIBP REFERENCE(S):  BCC2015/2097169

MEMBER:James Jolliffe

DATE:13 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 13 October 2016 at 10:10am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 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 delegate cancelled the visa on the basis that applicant did not appear to have been enrolled in a registered course of study since 31 July 2014. In those circumstances the applicant did not appear to have met the requirements of his student Visa in terms of condition 8202(2)(a). 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 by video link on 29 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. 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

5. 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?

6. 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).

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

8. The Department file contains a notice of intention to consider cancellation of the applicant’s student Visa which was sent to him by the Department by email on 16 October 2015.

9. In summary that notice set out the statutory basis for the consideration of the cancellation of the applicant’s student Visa and referred to the information available to the Department in the Provider Registration and International Student Management System(PRISMS). That information indicated to the Department that the applicant had not been enrolled in a registered course of study since 31 July 2014 and therefore appeared not to meet the requirements of his student Visa. The applicant was invited to respond in writing within five working days after he was taken to have received the notice if he wished to raise any matters that could be taken into account in terms of the consideration of the cancellation of his student Visa. The notice in summary also provided information about the consequences of the cancellation of the applicant’s student Visa.

10. The applicant responded by email on 19 October 2015. In summary in that reply the applicant said he was “extremely sorry for those Visa conditions which couldn’t able to follow” and said that he had reasons for that situation. He referred to having been “happy” when he had enrolled and started his study at the TAFE Queensland Gold Coast. He said that a few teachers did not exhibit a good “behaviour” towards Indian students. He claimed that some teachers tried to show that Indian students were “illiterate and uneducated” and that they had come to Australia to make money and not to study. In summary the applicant claimed that he had been a regular student who had done his best but claimed that he had not been treated well by teachers. He referred to thinking that he had passed his exams in his diploma in certificate 1V but had failed in subjects “like business (management) and HR) but I failed because those teachers behaviour were not good to me and aggressive with me”. He claimed to have felt bad as a result and thought that he should change his study provider. He said that he filled in his release and cancellation form from TAFE and sent them an email. He claimed that he didn’t get his cancellation and claimed that when he approached TAFE he was told to approach a University first to get a release or cancellation but claimed that Griffith University told him to get a release or cancellation from TAFE first. He claimed he was confused and he approached both TAFE and Griffith University by email. He also claimed he approached “another Institute” but said he was told that he needed a cancellation or release letter. He claimed he was “stuck and now I got Visa cancellation email from you”. He claims that he had come to Australia to undertake higher studies which he had been unable to do in the United Kingdom. He claimed that he wanted his college cancellation so that he could apply to another Institute and University and that his future would be affected if he could not continue with his studies.

11. A Department delegate considered the applicant’s student Visa situation but decided to cancel the applicant’s student Visa. A copy of the delegates decision record was provided with the application for a review. The notification of the cancellation of the applicant’s student Visa was sent to him by email on 26 October 2015.

    TRIBUNAL HEARING

12. The applicant appeared before the Tribunal by video link on 29 September 2016 to give evidence and present arguments. The applicant was not represented during the Tribunal hearing. The majority of the Tribunal hearing was conducted in the Hindi language but the applicant occasionally responded in the English language. The applicant confirmed his name and personal particulars to the Tribunal. The applicant told the Tribunal that he was not currently employed and had last worked in around September/October 2015. He told the Tribunal that he had come to Australia to study and that he had previously studied in the United Kingdom.

13. The Tribunal asked the applicant if he agreed with the facts set out in the notice of intention to consider cancellation of his student Visa and the Tribunal had some difficulty in ascertaining the applicant's response but the applicant finally told the Tribunal that he agreed that he had not been enrolled in any other course since 31 July 2014. The applicant told the Tribunal that he did not receive some of the emails from his education provider about his course enrolment.

14. He told the Tribunal that he was aware of the conditions that were attached to his student Visa to undertake studies in Australia.

15. He told the Tribunal that he had undertaken five months of study in the certificate 1V course in business studies at TAFE but that the Gold Coast TAFE had asked him to undertake an English language course but he said he had already completed an English language course and he was allowed to start the business studies course but if he was unsuccessful he would be required to do an English language course. The applicant was to undertake the business studies course as a precondition before commencing a course at Griffith University in a Bachelor of Business Degree. His enrolment in both courses ceased in July 2014. The Tribunal confirmed with the applicant the applicant's student enrolment details that were recorded in the PRISM system.

16. He told the Tribunal that after he ceased studying in July 2014 that he had worked and had not taken any further courses. He told the Tribunal that he had been trying to withdraw from the course at TAFE and wanted to obtain a cancellation of his enrolment so that he could enrol with another education provider. The Tribunal asked him about warning letters that had been provided to the Department by the education provider in relation to the course he was undertaking with TAFE Gold Coast in Queensland. The Tribunal referred him to particular documents in relation to warnings issued by TAFE Gold Coast. The Tribunal referred to a warning letter that had been sent to him in March 2014 in relation to unsatisfactory attendance in his business certificate. The applicant acknowledged that he had received that warning letter and he said that he had approached TAFE and apologised for his poor attendance and said that he would be attending classes as required. He told the Tribunal that his attendance had dropped (88% in semester one) because he was spending time with his girlfriend and not going to classes. He said he had some personal issues in terms of his girlfriend. The Tribunal noted that he had received another warning letter in May 2014 and that letter had warned him that the TAFE Gold Coast Institute was intending to report him to the Department because of unsatisfactory attendance in his course. The notice/letter invited him to appeal the education provider's intention to report him to the Department. He told the Tribunal that he did not do anything in response to that letter in terms of an appeal but claimed that he still attended classes.

17. He told the Tribunal that he had not been attending some classes in the business certificate course because he claimed that the teacher who conducted those classes, in essence, did not like Indian people/Indian students and he claimed that the teacher was aggressive and rude to Indian students. He claimed that he stopped attending the classes conducted by that teacher at around the time he received the first warning letter in March 2014. The Tribunal questioned him about these claims. He told the Tribunal he had not complained to the education provider or reported his concerns about the teacher to the education provider because he was intending to go to another college. The Tribunal also noted that if he had decided to not attend classes conducted by the teacher that he would continue to have unsatisfactory attendance in the course notwithstanding that he had promised the education provider after receipt of the March warning that he would attend classes. In those circumstances the Tribunal  noted that the applicant would continue to have an unsatisfactory attendance pattern in the course.

18. The Tribunal referred to an email forwarded by TAFE Gold Coast Institute on 29 July 2014 informing the applicant that he had been reported to the Department for non-attendance issues in his course and noting that he had not appealed the notice of intention to report him. The email noted that in those circumstances he had been "withdrawn from TAFE Gold Coast and the University has been advised". He said he had not received that email. The applicant gave some confusing evidence(in the Tribunal's view) about what he had done in relation to enquiring about other courses with other education providers. He was asked if he had tried to enrol in any other courses at around that time and he said he had not done so but was trying to get the cancellation of his confirmation of enrolment from TAFE Gold Coast in order to enrolled elsewhere. He also told the Tribunal that between October and November 2014 he had approached two other education providers about undertaking similar business courses with those providers but he had not been able to get the cancellation of his certificate of enrolment with TAFE Gold Coast. He also told the Tribunal that he had not contacted the Department about his claimed difficulties or after his enrolment in the course had been cancelled.

19. He told the Tribunal on a number of occasions during the hearing that he did not know that he needed to contact the Department and that he had been speaking to the TAFE about getting a cancellation of his enrolment in the business certificate course. He told the Tribunal that he was not aware that his enrolment in the business certificate had been withdrawn or cancelled and he claimed he had still been attending classes in July 2014. The Tribunal noted that he had ceased attending classes after July. He claimed that he had approached TAFE Gold Coast to obtain the cancellation between August and October 2014 but he had not received the cancellation of his enrolment. He claimed that he approached Griffith University but was told that he needed to get the cancellation from TAFE Gold Coast. The Tribunal noted that the warning letter of May 2014 clearly indicated that the education provider was intending to report the applicant to the Department and the Tribunal noted in those circumstances that the applicant was on notice that if there was a difficulty about his student Visa that he needed to speak to the Department. The Tribunal also notes that the applicant confirmed that he was aware of the conditions that were attached to his student Visa when he came to study in Australia. The applicant said that TAFE Gold Coast had told him that he would get his cancellation of enrolment but he never got it. He told the Tribunal that he last approached TAFE about obtaining the cancellation in October 2014. As indicated the applicant told the Tribunal that he then worked between around August 2014 to October 2015 and had not undertaken any studies. The applicant subsequently claimed that not notwithstanding he had told the Tribunal that he had not done anything in response to the May 2014 warning letter that he had approached TAFE after receiving that warning a letter and filled in a form to get a release or cancellation of his enrolment.

20. The Tribunal noted that on the applicant's evidence he had only asked for the cancellation of his enrolment at TAFE in August 2014 and after his enrolment in the course had been terminated. The Tribunal noted that aspect in the context that the applicant had claimed that from around March 2014 he had been considering transferring to another education provider. As noted the applicant claimed that he had not received the email from the education provider of 29 July 2014 and also claimed not to have received another email from the education provider, dated 8 September 2014, about the cancellation of his enrolment.

21. The Tribunal noted that the applicant's last enrolment in a registered course of study had been cancelled in July 2014. Despite the claims he made about having difficulties with the teacher he had not complained to the education provider about that issue. The Tribunal also noted that the applicant had not approached the Department about his claimed difficulties in relation to his studies and had only responded to the Department after it had issued a notice of intention to consider cancellation of his student Visa. The Tribunal also noted on the applicant's claims and his evidence his last attempt to obtain a cancellation of his enrolment with TAFE had been in October 2014. The Tribunal noted that the applicant was in Australia on a student Visa and was required to study. The applicant told the Tribunal that he had approached Holmes College about undertaking a course after he received the notice from the Department to consider cancellation of his student Visa. He also claimed to have cooperated with and attended at the Department as he was required to do.

22. He told the Tribunal that education was important to him and he was intending to return to India once he had completed his studies in Australia. He said he had previously completed courses in the United Kingdom. He said that he had gone to TAFE to get the cancellation and had not been given the cancellation letter and claimed that it was the fault of the college. He blamed the education provider on a number of occasions during the hearing for not issuing him with the cancellation of his enrolment and he claimed that he had done everything "properly". He claimed that the Tribunal was blaming him for the difficulties surrounding his studies and that it was the fault of the education provider.

23. He was asked if there was any reason why he could not return to India and he said he was "waiting for the results" in relation to his Visa situation but he told the Tribunal that he had not had any problems with Indian authorities and he did not raise any claims that he could not return to India. He said that there was no one in Australia who would be affected if his student Visa remain cancelled. He said that his girlfriend in Australia was not an Australian citizen or resident and that she was also an overseas student and indicated that she might be emotionally affected if he had to leave Australia. He was asked about any hardship issues if his student Visa remained cancelled and he said that the last three years of his life in Australia would be wasted if he could not undertake his studies. He said that he would lose face with his family if he had to return without having completed his studies. He had not told his family about his Visa difficulties. He said he was not interested in earning money or working in Australia but wanted to undertake studies. He asked the Tribunal to think about the impact on his life if his Visa remained cancelled.

24. 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

25. 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.

26. 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).

27. The Tribunal has considered the applicant's evidence about his study activities in Australia. That evidence has been referred to elsewhere in these reasons. The Tribunal considers that the purpose of a student Visa is to enable the applicant to undertake studies in Australia. The evidence before the Tribunal is that the applicant was issued with warning letters by his education provider in relation to unsatisfactory attendance. The May warning letter invited the applicant to appeal the education provider's intention to consider reporting him to the Department for unsatisfactory attendance. The warning letter is clear in its terms and yet the applicant said that he had not sought to appeal that notice of intention from the education provider but did claim that he filled out a form with the education provider with the intention of cancelling his enrolment and seeking enrolment with another education provider. As indicated he did not approach the education provider about his claims that he was having difficulties with a particular teacher and was not attending classes conducted by that teacher. In those circumstances, the Tribunal believes that it is reasonable for it to assume, that the applicant would have realised that he would continue to have an unsatisfactory attendance pattern with the education provider. He did not approach the Department about his claimed difficulties. He claimed to have made attempts between August and October 2014 after his enrolment in the certificate course was cancelled in order to seek a letter of confirmation about the cancellation of his enrolment. He claimed he was doing that in order to enrolled in another course. On his evidence he made no other attempts after October 2014 to obtain such a letter of confirmation. On his evidence he worked in Australia between around August/September 2014 up until October 2015 and was not enrolled in any other courses during that time. He claimed not to have received some emails from his education provider about the cancellation of his enrolment in the business certificate course. However as indicated in August 2014 the applicant said that he approached the education provider (TAFE Gold Coast) to get a letter confirming the cancellation of his enrolment with that education provider. He told the Tribunal that he sought to enrol in another course after he received the notice from the Department informing him that it was considering cancelling his student Visa. The Tribunal has considered the totality of the evidence and information before the Tribunal in relation to the cancellation of the applicant's Visa.

1. The Tribunal has referred to the applicant's evidence in relation to any hardship issues that might arise in relation to the cancellation of his Visa and the Tribunal is not aware of any additional hardship that may be caused by the cancellation of the applicants Visa beyond the comments that he is already provided to the Department and to the Tribunal and also the issues referred to in the delegate's decision record. There is no evidence before the Tribunal that the cancellation of the applicant's Visa would result in a breach of Australia's international obligations. The applicant's evidence about his girlfriend in Australia does not indicate or suggest to the Tribunal that apart from some emotional impact on the applicant and his girlfriend that there is anyone else in Australia who would be affected if the applicant's student Visa remain cancelled. The applicant's evidence about his desire to continue to study in Australia has been referred to elsewhere in these reasons The Tribunal is not aware of any other relevant factors in relation to the question of the cancellation of the applicant's student Visa.

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

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

   James Jolliffe
   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.