Ankit (Migration)

[2018] AATA 1043

Ankit (Migration) [2018] AATA 1043 (9 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankit Ankit

CASE NUMBER:  1622544

DIBP REFERENCE(S):  BCC2016/3806570

MEMBER:Christine Kannis

DATE:9 March 2018

PLACE OF DECISION:  Perth

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

Statement made on 09 March 2018 at 8:46am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Breach of Condition 8202 – Ceased enrolment in 2015 – Did not respond to the Notice of Intention to Consider Cancellation – Wished to study cookery not IT – Migration agent did not process course change – No extenuating circumstances beyond the applicant’s control

LEGISLATION
Migration Act 1958 s 116, 140
Migration Regulations 1994 Schedule 8 Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 December 2016 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. A telephone hearing was held on 6 March 2018 during which the applicant gave evidence and presented arguments. 

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. On 28 February 2015 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 27 August 2015. He was enrolled in a Master of Science (Science).  

9. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 27 August 2015. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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).

12. On  14 December 2016 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

13. The applicant did not respond to the NOICC.

14. The applicant told the Tribunal that before he came to Australia in 2015, he had told his agent in India that he wanted to study Cookery in Australia. He had obtained a diploma in Cookery in India and wanted to obtain an Australian qualification. The applicant said at no time had he wanted to study Information Technology. He said the Master of Science (Science) course in which he was enrolled was an Information Technology course.

15. The applicant said his agent in India told him that he could change his course to Cookery once he was in Australia. He said he asked his education provider in Australia whether he could change to a Cookery course but his education provider said he was unable to do so because of the conditions attached to his visa.

16. The applicant told the Tribunal that he contacted his agent in India who told him to discuss changing his course with an agent in Perth. In or around May 2015 he contacted an agent in Perth who asked him for a payment and said he would handle the change to a Cookery course process. The agent said he would contact him within 20 to 25 days to let him know the outcome of the process.

17. The applicant told the Tribunal he did not hear from the agent within 20 to 25 days. He contacted the agent after one and half months had elapsed and the agent told him he would let him know the outcome in due course. The applicant said that after a further 15 to 20 days he asked his roommates how long it should take to change his course. They told him to be patient and said it could take two to three months.

18. The applicant said he contacted his agent in India and put to him/her that he had not been told that a condition of his visa was that he remain in a Higher Education Sector course. The agent in India told him that if he contacted the Department his visa would be cancelled and he would have to return to India and apply for a new visa. The agent in India suggested he contact an agent in Australia about changing his course.

19. The applicant told the Tribunal that he returned to India for a holiday in May 2016 and while he was there his agent in Australia contacted him and told him that everything would be sorted out on his return to Australia. The applicant said the agent in Australia was motivated by money and asked for more payment. He said his parents and his friends told him to listen to the agent in Australia because the agent knew the rules and regulations.

20. The Tribunal put to the applicant that he would have known he was in breach of a condition of his visa following cancellation of his enrolment. He conceded that he was aware that that he was in breach of a condition of his visa but said he did not have the confidence to contact the Department to discuss his options.

21. The Tribunal asked the applicant the reason he did not respond to the NOICC. He said his agent did everything for him because he lacked the confidence to deal with the Department.

22. The Tribunal put to the applicant that it appeared from his evidence that he came to Australia with the intention to study Cookery. The applicant agreed that this was his intention.

23. The Tribunal put to the applicant that it appeared that after his enrolment was cancelled he had not attempted to re-enrol in a Higher Education Sector course and that his current intention is to study Cookery. The applicant agreed that he had made no attempt to re-enrol and that he wishes to study Cookery.

24. The Tribunal noted that the PRISMS shows the applicant was also previously enrolled in a Certificate IV in Academic English and Academic English IV. His enrolment in the former course was cancelled on 1 April 2015 and the reason stated was for “Change to a course in a different sector”. The PRISMS shows the applicant completed the latter course on 31 May 2015.

25. Regarding the potential hardship which would result from the cancellation of his visa the applicant said he would suffer financial loss because he had not obtained a qualification from his study in Australia. He said he would also suffer hardship from a “career point of view”.

    Conclusion

26. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s oral evidence.

27. The applicant told the Tribunal that the cancellation of his enrolment was due to his agent in Australia not processing a change to a Cookery course within the time period he had indicated. The Tribunal noted that Cookery courses are generally offered at the Vocational Education and Training Sector level which was not the level of study for which he was granted his visa.

28. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not studied from the time he finished the Academic English IV course on 31 May 2015. He has not been enrolled in a registered course since 27 August 2015 and more than 15 months elapsed from that date until the NOICC was issued.

29. The applicant did not dispute that he was aware that he was in breach of a condition of his visa following cancellation of his enrolment. He did not attempt to re-enrol and at no time has he intended to study a course at the Higher Education Sector level. 

30. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

31. In relation to the applicant’s contention that he was not properly assisted by his agents in India and in Australia, the Tribunal gives this no weight in his favour not to cancel his visa because whilst it is plausible that he received poor assistance, the responsibility sits with the applicant to ensure he meets the requirements of the visa.

32. There was no evidence to indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.

33. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

34. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

35. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

36. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

37. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

38. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

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

    DECISION

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

    Christine Kannis
    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.