AMARANAINI (Migration)

[2021] AATA 1550

AMARANAINI (Migration) [2021] AATA 1550 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BHARGAV AMARANAINI

CASE NUMBER:  2000707

HOME AFFAIRS REFERENCE(S):          BCC2019/5832856

MEMBER:Meredith Jackson

DATE:18 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 18 March 2021 at 2:19pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course ceased – applicant changed to vocational courses – limited academic progress – plans to start a business – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.    The delegate cancelled the visa on the basis that, contrary to the requirements of condition 8202(2)(b) of the visa, the applicant had not maintained enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) 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 on the basis that the grounds for cancellation outweigh the reasons not to cancel the visa. 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 on 18 March 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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.

Case summary

6.    The applicant is Bhargav Amaranaini, an Indian national. He came to Australia in July 2016 on a higher education student visa to study a Master of Engineering. He did not complete the course. He was granted the visa under review in October 2018 to continue his studies in a different course at the same level, a Master of Information Technology (Enterprise Management) at the University of South Australia. The university estimates that he ceased studying the course in November 2018. This was less than a month after the visa grant. In March 2019, he enrolled in a package of vocational diploma courses in business. Doing so led to the cancellation for the reason he was studying below the level for which the visa was granted. The applicant claims he did not understand his visa conditions.

Did the applicant comply with Condition 8202?

7.    Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, in this case, the condition states in part that:

(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 […]

(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 […]

8.    The applicant is not a defence student, foreign affairs student or secondary exchange student. Therefore, Condition 8202(2)(b) applies in his case.

Did the applicant maintain enrolment at the level required?

9.    The applicant does not dispute that he did not maintain enrolment at the level required by the conditions of his visa. His claim is that he changed courses to a lower level because he did not know he could not do so, and he was studying the wrong courses. After that the visa grant, he claims developed a different plan for his future, which was to work in the family business and develop an agricultural business of his own in India. Prior to the hearing, he submitted through his representative the following statement about his decision to change his course and his AQF level of study:

On one hand he was learning business administration related skills from employment and on other hand he was learning IT skills through his Master studies. During month of November 2018, he decided to study something he really want to use run his own business rather than being an employee for someone. So he started to looking for course until he found Diploma and Advance Diploma in Business course available in Salford college with relevant units where he need to develop his knowledge to be a successful entrepreneur. Salford College is one of the best colleges in Adelaide providing quality education for affordable price. I have completed my Diploma in Business successfully by Mar 2020. Unfortunately, applicant didn’t complete his Advance Diploma with Salford College. However, he would like to enrol Masters in Business Administration as soon as he receives positive review outcome.

1. In order to confirm any variation in the applicant’s level of study, prior to the hearing the Tribunal sent the applicant a copy of his record in the Provider Registration and International Student Management System (PRISMS). In the hearing, adopting the procedure in s.359AA of the Act, the Tribunal referred the applicant to the information about him held in PRISMS, and explained its relevance to his case. The Tribunal stated that the information might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information in the database, which is a chronological record of the applicant’s academic history in Australia: information about his enrolments, commencements, cancellations and course finish dates. The Tribunal said it had not made up its mind about the information. The applicant said he had received and reviewed the information. The Tribunal asked if he wished to seek further time to consider it. The applicant stated that he had studied the record, understood it and its relevance, and chose to comment on the information immediately. The applicant stated that the PRISMS record appeared to be correct, with the exception that he believed he had completed the requirements of the Diploma of Business in 2020. He said he would pursue that with the relevant provider.

2. The Tribunal raised that PRISMS appeared to show he had made the decision to change courses in November 2018, shortly after the grant of the visa on 12 October 2018. The Tribunal stated that his former university had estimated to the department that he had ceased studying the Master of Information Technology on 25 November 2018. The Tribunal said that as the visa was granted on 12 October 2018, it might be concerned that he was aware that if he declared that he planned to study several course levels below a Masters, he might not be granted the visa. His diploma was five AQF levels below that for which he had been granted the visa, only a matter of weeks before. The Tribunal said it had not made up its mind about this, and invited the applicant to comment. The applicant said he had been discussing the pending expiry of his first student visa with his parents, talking about what to do, and prioritised getting a new student visa and then making a decision about his courses. After the grant, he did not discuss his options with his university, he said, he just went with the diploma idea. It was partly, but not all about finances, as things were getting bad in India, which had put a strain on the family and also on him as the only son. He thought it wise not to take on too much at that time.

3. The Tribunal having taken the applicant’s evidence in this regard into account, is satisfied that at the time of the visa application, and at the time of the visa grant, the applicant was enrolled to study an AQF level 9 Master of Information Technology course from 26 February 2018 to 31 December 2019 and this was the basis on which the visa was granted. The Tribunal notes the applicant’s enrolment in the course was cancelled by the university on 26 March 2019 for unsatisfactory course progress soon after the applicant became enrolled in an AQF Level 5 Diploma of Business commencing on 18 March 2019 and ending 29 March 2020, to be followed by a level 6 Advanced Diploma of Business from 4 May 2020 to 2 May 2021. The university recorded an estimate that the applicant last studied in the Masters on 25 November 2018.

4. For completeness, the Tribunal notes the PRISMS record shows that the diploma courses were also cancelled and the applicant has not provided satisfactory evidence that he has successfully completed any course in Australia; and that he is not currently enrolled.

5. On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course at the level required by the conditions of his visa. Accordingly, the Tribunal is satisfied the applicant has not complied with condition 8202(2)(b).

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

Documentary evidence provided to the Tribunal

1. With his application for review, the applicant provided the Tribunal a copy of the delegate’s decision. On the day prior to the hearing he provided a written statement regarding his circumstances, addressing why he ceased studying at level; his family circumstances; his financial circumstances and those of his parents including evidence of land assets; affidavits (untranslated) from his parents; a business plan for an agricultural bio-fertiliser production venture and identity documents.

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

1. The applicant’s two student visas were issued on the basis of him undertaking Masters study. There is no evidence before the Tribunal that the purpose of the visa holder’s travel and stay in Australia for the visa under review was for anything other than study. The applicant has a desire to stay in Australia to complete an MBA, he claims, to deliver on his father’s ambitions for him to hold a Masters degree. He claims this will make his life a success and make both his parents immensely proud. He will be able to employ people in a business and provide for his family. The Tribunal has considered this but finds this amounts to a desire, rather than a compelling need, to remain in Australia. The Tribunal affords this consideration no weight in the applicant’s favour.

The extent of compliance with visa conditions

1. The applicant claims he has abided by the conditions of visas he has held and that his only departure from those conditions was an unintended breach. The Tribunal has no evidence before it that while he held the visa, or any other visa, that the applicant used the visa for purposes other than the basis on which it was granted, notwithstanding the change in study levels. There is no evidence before the Tribunal that he has breached other visa conditions while holding the visa or any previous visa. The Tribunal affords this some weight in the applicant’s favour.

2. The applicant has no dependants and there would be no consequential cancellations under s.140.

The degree of hardship that may be caused (financial, psychological, emotional or other hardship) if the visa is cancelled.

1. The applicant appears genuinely concerned about wasting his father’s investment in his studies and states that if the visa is cancelled, he will hugely disappoint his family, who really wanted him to get a Master degree. He claims there will be a lot of emotional pain and hardship if he fails to do so after all this time in Australia, and he will go back to India with his reputation damaged. He said his father has only ever asked him to study well and has given him every support. Until he came to Australia, he never worked a day. He claims he just needs this one chance to support his father; otherwise it will mean a lifetime of disappointment to his father and him. While he has a Bachelor degree from a good college in India, if he completes a Masters in Australia he can go home and run a business where he could employ people, support his family. The consequences of failure will be terrible, he claims. If he has to say he went to Australia to do a Masters and did not complete anything, it will not look good. He will not get good job offers. He has applied to several universities, Kaplan Business School, Holmes College in Melbourne and International College of Management in Sydney, in the hope that the visa will be granted and he can study an MBA. The Tribunal accepts that emotional difficulty, and potentially financial difficulty, will flow from the failure to complete a Masters degree in Australia after long residency here. He may not be in a position to get good job offers in India, as he states, but the Tribunal notes that his plan is to start his own business. The Tribunal also notes his observation that he has a Bachelor of Engineering from a good university in India, therefore he is qualified at tertiary level and has completed the best part of a Diploma of Business in Australia which he believes will be certified if he talks to his former education provider. The Tribunal considers his existing attainment, in combination with some study in Australia is not without value for an entrepreneurial venture such as he proposes. The Tribunal nonetheless the applicant, and probably his parents, are likely to suffer serious disappointment if the visa is cancelled and the Tribunal weighs this in his favour.

The circumstances in which ground of cancellation arose.

1. Departmental guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. The applicant claims that the circumstances in which the ground arose were that he did not know how the student visa program works, and this led him to a major error. He claims he had no idea that a student in his situation could not change levels. His course choices were to a large extent, driven by his academic capacity and his evolving interests. Study in Australia, he states, is very different from that in India.

2. The Tribunal has considered the circumstances above, but notes the applicant understood enough about education pathways when he switched initially from a Master of Engineering to a Master of Information Technology, to seek the university’s help to do so. This was not his approach when, as he claims, he realised that his Master of IT was also a wrong course for him. That particular insight, he states, came after he had been working at Caltex for a while, learning basic business functions. He consulted his parents, he claims, but did not go to his university for more advice or ask anyone else with knowledge of the visa program about his study options. He claims he recognised an opportunity existed to learn from his family’s business interests in India, and start his own venture on his own footing, and that meant he needed formal training in business. So as the holder of a Bachelor degree, and a Master degree student, he chose to enrol in vocational courses for that reason. He believed that with business training, he could work both in the family business in agriculture and develop his own organic farming venture for the production of bio-fertiliser, which is in demand in India. At the time, he claims, his first student visa was expiring, and he prioritised getting a new one before addressing what to study. He claims he considered enrolling in an MBA, but it was too big a leap to go straight to that, particularly because he might not fit in again or fail. Taking on low-level diploma level courses, he considered, was the better step. His parents agreed, he claims, and they acknowledged that an MBA could come later. This was his mistake, he states, and it will follow him for life unless his visa is granted.

   I did not contact the department, I did not contact the college, I thought I could do this but I was wrong. It was a bad decision and will not happen again. I wanted to learn about business. It is right that I started from the bottom level and now I feel I could handle an MBA.

3. The Tribunal was a forthright witness in the hearing, and the Tribunal acknowledges that he prioritised getting his second visa before he made a decision on his next, best education pathway in the light of revised ambitions. However the closeness in timing of the grant of the visa and his decision to drop study levels, coming within weeks of the grant, tends to suggest the applicant may have been aware of what he was doing when he applied. In the end, the applicant did not maintain enrolment in the course, or any other level 9 course for very long after he was granted the visa, and that was not his declared intent when he applied for it. This weakens his case for the application of the discretion.

4. The Tribunal has considered the circumstances that led to the cancellation, and finds that however regrettable, they were entirely of the applicant’s own making. He did not familiarise himself adequately with the conditions of his visa and that was his responsibility within the program. If he had done, his error of judgment could have been avoided. If he had followed the path he took when changing courses for the first time and sought available advice on his options, he may be closing in on a Masters degree by now. The Tribunal accepts that mistakes happen and that the applicant seems genuinely remorseful about his actions, however the Tribunal on the evidence, is not satisfied the circumstances leading to the cancellation are capable, of themselves, of outweighing his non-compliance with the visa conditions. The Tribunal weighs these considerations against the applicant.

Past and present behaviour of the visa holder towards the department

1. The applicant responded fulsomely to the Notice of Intention to Consider Cancellation. There is no evidence before the Tribunal of anything other than substantial cooperation with the department. The Tribunal notes that the delegate’s decision records that on 21 February 2019 the applicant applied for a further student visa. The visa was refused on 17 May 2019.

2. The Tribunal weighs these considerations lightly in his favour.

Whether there are mandatory legal consequences

1. The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the likely impacts of legal consequences in the case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and, in those circumstances, will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia.

1. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately, he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore.

2. Whether any of Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached

In considering whether to exercise its discretion to cancel the applicant’s visa, policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). No information is before the Tribunal that a cancellation outcome would breach of any of Australia’s international obligations and the Tribunal affords this consideration no weight.

Conclusion

1. The Tribunal has carefully considered all the applicant’s claims and evidence and weighed its considerations in the case accordingly. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.