Baring (Migration)

[2019] AATA 2855

Baring (Migration) [2019] AATA 2855 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mehakdeep Kaur Baring

CASE NUMBER:  1726947

HOME AFFAIRS REFERENCE(S):           BCC2017/2937059

MEMBER:Joseph Lindsay

DATE:21 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 June 2019 at 1:31pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – found diploma course too difficult – failure to take reasonable steps to maintain enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 October 2017 made by a delegate of the Minister for Immigration and Border Protection 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 attended the hearing before the Tribunal on 10 April 2019. The applicant was not represented by a migration agent. The applicant spoke English for much of the hearing and was assisted by an interpreter as she required.

3. 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

4. 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?

5. 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).

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

7. The Tribunal asked the applicant about her student enrolment history in Australia. In response she indicated that she has completed two semesters of the Diploma of Business, but she had not completed the Diploma. She indicated this course would have led on to the Bachelor of Business. She indicated that she then enrolled in Stott’s College on 23 January 2017. She got a letter of offer from Front Cooking School dated 30 November 2016. She got a letter of offer from Stott’s College dated 30 November 2016. On 22 September 2017 she obtained an enrolment for a Certificate III in Commercial Cookery at Pax Institute and a Certificate IV in Commercial Cookery at Pax Institute. On 4 October 2017 she obtained an enrolment for a Bachelor of Business from Group Colleges Australia.

8. She said that on 26 October 2017 she did not apply for any further enrolments because her student visa was cancelled and she did not have study rights. She indicated she did not go to the Department to apply for study rights on her Bridging visa E.

9. The Tribunal put to the applicant that what she had said in the hearing about her course enrolment history was accurately reflected in her Provider Registration and International Student Management System (PRISMS) record.

10. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 26 October 2017 indicating that she had not been enrolled in a registered course of study since 17 February 2017. In her response to the Tribunal, the applicant agreed that she had not been enrolled in a registered course of study since 17 February 2017. Later in the hearing, the applicant indicated that she re-enrolled on 22 September 2017 but that when her student visa was cancelled she again ceased to be enrolled.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 17 February 2017 and 22 September 2017. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established with respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

12. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    The circumstances in which the ground for cancellation arose

13. The Tribunal asked the applicant what circumstances lead to the ground of cancellation of her course enrolment on 17 February 2017. In response the applicant indicated that at that time she wanted to study a cookery course. She indicated she went to two or three agents and spoke with them about the course and they suggested to her to go to Stott’s College.

14. The Tribunal put to the applicant that she had started off with the Diploma of Business leading to her bachelor’s degree, and that these courses were completely different to cookery, to which she agreed. She then said she found the Diploma of Business hard to study. She claimed that her agent in India told her that the Diploma of Business course would be easy, but she indicated that when she started the course she found it very hard. She indicated she did not complete the Diploma of Business because she found subjects she took in second semester were too hard and she failed the subjects.

15. The Tribunal asked the applicant if she spoke to her course provider (La Trobe University) about the problems she was experiencing. She indicated that she did speak to her course provider. She indicated she had particular problems with her accounting subject because she was not good with numbers.

16. The Tribunal asked the applicant why she did the Diploma of Business in the first place if she was not good with numbers. She responded that before she started the course she did not know there was accounting in it. She then indicated that she thought she could do the accounting course but then when she was studying accounting she just found it too hard.

17. The Tribunal put to the applicant she reasonably knew she was on a 573 visa which was a higher education visa and that she was doing a diploma that would lead to a bachelor’s degree. The Tribunal put to the applicant she indicated she had spoken to La Trobe University about her problems with her ability to do her course of study but then she had made a decision to leave La Trobe University rather than do anything else, to which she agreed.

18. The Tribunal put to the applicant she reasonably knew she was on a 573 visa and she had to remain enrolled in a course of study in order to comply with her visa conditions. The Tribunal asked the applicant why she did not re-enrol until the latter part of 2017. In response the applicant indicated that as well as talking to La Trobe University she spoke to a number of agents about cookery courses and she was getting knowledge about the cookery courses.

19. The Tribunal put to the applicant that this task appears to have taken her many months during which time she was not enrolled. The Tribunal asked the applicant whether she approached the Department when she ceased to be enrolled in February 2017 and tell the Department about her situation. In response she indicated she did not approach the Department.

20. The Tribunal put to the applicant that she, as the visa holder, would be reasonably aware that she would need to consult the Department when she became reasonably aware that she did not comply with her visa conditions. In response she indicated she did not have much information at the time that she could do these things.

21. The Tribunal put to the applicant that she was issued with the Notice of Intent to Consider Cancellation (NOICC) on 28 September 2017 and that she responded on 5 October 2017, to which she agreed. She then indicated that she enrolled in the Certificate III in Commercial Cookery and the Certificate IV in Commercial Cookery before she got the NOICC.

22. The Tribunal asked the applicant why it took her so long to re-enrol. The applicant responded that she spoke to her agent and he indicated he was going to get the offer letter from Stott’s College and that she could start a semester after that, but when she saw the payments system from Stott’s College it did not seem right to her so she changed her agent. After that some of her friends spoke to her about Pax Institute, and after that she got the Confirmation of Enrolment (COE) and offer letter from Pax Institute (for the cookery courses).

23. The Tribunal put to the applicant that this process appears to have taken seven months for her to complete. In response she said she was told her “session” was starting in six months’ time. The Tribunal put to the applicant that the issue was not when her “session” was starting, but when she was enrolled. She then said she got a COE after two or three months. The Tribunal put to the applicant that she did not get a COE after two or three months. The Tribunal put to the applicant that it was September 2017 that she re-enrolled. She indicated that she changed her agent because he did not tell her anything about the course plan or offer letter, and he had not replied to her or anything and that was when she changed her agent and went for Pax Institute.

24. The Tribunal again put to the applicant that this process appears to have taken her seven months to complete. In response she said “yes” and explained that during that time the agent told her “we are doing this thing, we are doing this thing” and she did not understand at the time what to do, so that was why it took too much time.

25. The applicant then indicated her agent actually questioned her as to why she was even going to the hearing. She said she told her agent that she was going to fight her case. She indicated she did not know why her agent told her that. The applicant explained that when she got her hearing date from the Tribunal she spoke to her agent about it and he asked her “why are you going over there about it - I can’t come with you”. She indicated her agent demotivated her too much but her friends told her she could apply for her case herself and she could fight for herself. The applicant indicated that she had used the same agent, Dilpreet Singh, for some time including when she was trying to change her course. She indicated that Dilpreet Singh was trying to get her to do a particular course but then she went to “Aussies Groups”, which was another agent, and they gave her the Stott’s College offer letters but when she saw the payment system she thought the payments were too high.  She said her friends then took her to Zen Migration, yet another agent, who said they would “tell her everything and what to do after that.” She indicated that Zen Migration told her to go for Pax Institute and so she directly went to Pax Institute and applied for a course for which she got the offer letter.

26. The applicant indicated that Dilpreet Singh assisted her from the time she got her visa cancelled, but he was trying to get her to go to Holmes Institute because it “had a good environment she could meet her own people there and she could do easy study over there.” She indicated she could afford the cost of the Holmes Institute course. She indicated that Dilpreet Singh did not organise anything for her and that every time she went to his office he wasn’t there. She said her friends told to go to other agents but she stayed with Dilpreet Singh. She said she spoke to Pax Institute who told her she should stay with Dilpreet Singh.

27. The Tribunal asked the applicant why she appeared to be solely relying on agents to tell her what course she should do, and why she was not doing her own research and making her own decisions about which course she wanted to do. She indicated at that time she did not have much information about the courses. The Tribunal put to the applicant that she had the internet to search for the courses she wanted to do and alternatively she could attend in person to speak to the course providers. She said after this much struggle she went to Pax Institute and spoke to them directly, but before that she did not have much knowledge that she could do these things by herself.

28. The Tribunal put to the applicant that she had said that she went to Pax Institute as a result of what an agent told her to do, to which she agreed. In response she indicated that she did rely on agent to advise and assist her in applying for courses on her behalf but that Dilpreet Singh, in particular, was not overly reliable.

29. The Tribunal put to the applicant that she had indicated to the Tribunal that the reason why she chose the course she did was because she was asking an agent what course she should do and where she should do it. The applicant responded that she genuinely wanted to be a cook and that was why she enrolled in commercial cookery.

30. The Tribunal asked the applicant if she had read her decision record and she indicated she had read her decision record from the Department. The Tribunal asked the applicant whether she understood she was on a 573 higher education visa and she responded “yes.”

31. The Tribunal asked applicant whether she understood that, in enrolling in the commercial cookery courses, she was not enrolled in higher education and she responded “yes.”

32. The Tribunal put to the applicant that if she wanted to enrol in courses that were not higher education it was open to her to obtain a visa suitable for vocational training rather than higher education – yet she did not do seek to change her visa class. In response she said she did not know about “that thing” and she did not know she could change her visa.

33. The Tribunal put to the applicant that, while she did not approach the Department, she had told the Tribunal she had consulted a number of migration agents. She indicated she was advised that she could do the cookery courses as well as the bachelor’s degree. She indicated she got her enrolment in the Bachelor of Business with Group Colleges Australia after she got the NOICC.

34. The Tribunal asked the applicant why she wanted to do a Bachelor of Business when she said she wanted to be a cook. She responded that in just doing Certificate III, Certificate IV and the diploma she was not getting the “full skills.”

35. The Tribunal put to the applicant that she had said previously she just wanted to be a cook and that she did not need a bachelor’s degree to be a cook. She indicated that she thought she needed a bachelor’s degree to be a cook. She then indicated she knew if she did not enrol in a bachelor’s degree she couldn’t stay in Australia.

36. The Tribunal spoke to the applicant about the difference between a 573 visa (Higher Education) and a 572 visa (Vocational Training). She indicated that she did not know if she changed her course she could change her visa class as well. She indicated she was just aware that she needed to do the bachelor’s to match her visa conditions. She indicated if she did the course in cookery and was trained as a chef she would be able to do practical things and would know how to use the cooking equipment better.

37. The Tribunal put to the applicant that as the holder of a student visa she would be reasonably aware of her visa conditions and the need to abide by them. The Tribunal put to the applicant that her decision to undertake a non-higher education courses on a 573 visa was not in keeping with the intent of that visa and that it was reasonably open to her to obtain a 572 visa if she made the appropriate enquiries with the Department.

38. The Tribunal put to the applicant that she had indicated that the reason why she enrolled in the bachelor’s degree was to demonstrate compliance with the 573 visa. In response she indicated she wanted to do a bachelor’s degree because if she went back to her country she wanted to have a degree with her so she could start a business in India. She indicated that she needed a degree to start a business in India.

39. The Tribunal put to the applicant that she did not need a bachelor’s degree to be a cook or start a business. The applicant then said she needed something to go back to her home country with because her parents told her she needed a degree or something to come back with when she went home to India. She said when she sees her friends they are going to college studying and she wanted to do the same because she needed a degree and wanted to study further. She said that all parents want their children to study and they should have a degree at least. She said she knew she could be a cook because in her home country her father taught her cooking. She cooked at home for her boyfriend also. She wanted to know how restaurants use different ingredients, different knives, different pans and everything. She wanted to learn how to use everything properly.

40. The Tribunal put to the applicant that it had considered her response to the Department dated 5 October 2017 and asked her whether she wanted to say anything about that response, to which she indicated she did not.

41. The Tribunal asked the applicant why she could not do her cookery course or bachelor’s course back in India. In response she said if she went back to India she can’t learn many things over there. She said one of her friends was doing hospitality over there and that her friend told her that in Australia we cooked different things with different equipment and she wanted to be a chef. She wanted to know about Indian food and Aussie food. She wanted to know all about these things and she wanted to know about desserts. Her friend said in India they just know about the one culture but in Australia we know about multicultural things.

42. The Tribunal put to the applicant that it was considering the email that she had provided to the Tribunal dated 9 April 2019, noting that in her email she indicated that she was depressed. The Tribunal asked the applicant whether she had been diagnosed with any form of mental illness. The applicant did not actually address the Tribunal’s question in her response, but said she feels like she can’t do something for her parents and feels really guilty as she is not studying. She said she wants to do something in her life and her boyfriend always encourages her.

43. In respect to the above, the Tribunal makes the following findings:

    ·The applicant ceased to be enrolled in a registered course of study on 17 February 2017 until she re-enrolled on 22 September 2017.

    ·The applicant had been enrolled in a package Diploma of Business/Bachelor of Business Course but she did not finish the Diploma of Business and consequently never started the Bachelor of Business.

    ·The applicant decided not to continue her Diploma of Business because she failed an Accounting subject, as she was not good at numbers.

    ·The applicant did not consult the Department at any stage, let alone about her decision not to further study for her Diploma of Business, and allowed her course enrolment to cease on 17 February 2017.

    ·The applicant consulted a number of migration agents in respect to what course she should study, and she decided she wanted to study cookery – a course that is not higher education. Accordingly, on 22 September 2017 the applicant enrolled in a Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery at Pax Institute.

    ·The applicant was then issued with a NOICC from the Department on 28 September 2017, to which the applicant provided a response on 5 October 2017.

    ·On 4 October 2017, the applicant obtained an enrolment in a Bachelor of Business course at Group Colleges Australia. The applicant obtained this enrolment because she knew she was on a 573 higher education visa and that the purpose of that 573 visa was for her to undertake studies in higher education.

    ·The applicant was without an enrolment in any course of study for approximately seven months.

1. The Tribunal accepts that the applicant faced difficulties in regard to her migration agents, but the Tribunal places low weight on this evidence in the applicant’s favour because the applicant consulted several migration agents and even then it took her approximately seven months to re-enrol.

2. The Tribunal accepts that the applicant wants to study cookery, but the Tribunal places no weight on this evidence in the applicant’s favour because despite consulting several migration agents she did not approach the Department to apply to change her visa class from higher education (573) to vocational training (572) – an action the Tribunal reasonably expects would be in keeping with her purported wish to become a cook.

3. The Tribunal does not accept that the applicant genuinely wants to study a Bachelor of Business or any higher education course in Australia because a) she was adamant that she wanted to be a cook  b) she does not need a bachelor’s degree to start a business c) she enrolled in the a Bachelor of Business course at Group Colleges Australia only after receiving the NOICC because she knew that if she was to remain on a 573 visa she needed to ultimately enrol in a higher education course of study and not just courses in vocational education and training.

4. The Tribunal places high weight against the applicant given that the applicant remained without any enrolment at all for approximately seven months despite her consulting several migration agents.

5. In assessing the above, the Tribunal finds that the applicant failed to take reasonable steps in regard to maintaining her enrolment in her registered course of study. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

   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

6. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

   The extent of compliance with visa conditions

7. The Tribunal finds that the applicant appears to have complied with her visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

8. The Tribunal spoke to the applicant about the hardship that may be caused to her if her student visa was cancelled. In response she said that there would be a huge gap in her study and in India she could not get an opportunity to do study due to the gap. She said the teachers in Australia support her very well but not in India.

9. She said the environment in Australia is very good and the teachers make the environment very good. She said the environment with the teachers in India is not good. She indicated that the practical component of the cooking course is a really good in Australia and she could not do them in India.

10. The Tribunal put to the applicant that India is a country of over 1 billion people. In response, the applicant conceded that there were schools in India but that her friend who was doing a hospitality course in India could only learn about one culture – Indian things. She wanted to know about multicultural things. She indicated that she attended one class for a cookery course and she enjoyed it a lot; she wanted to study more.

11. In respect to the above, the Tribunal makes the following findings.

12. The Tribunal accepts that, if the applicant’s student visa was cancelled, she may face some hardship. The Tribunal accepts that if the applicant’s student visa was cancelled there would be a gap in her studies and the Tribunal accepts that the applicant wants to study both Indian and Australian cooking and not just Indian cooking. The Tribunal places low weight on this evidence in the applicant’s favour.

13. However, the Tribunal does not accept that the applicant could not study to be a cook in India or the general statement that the environment with the teachers in India is not good. There is no indication the applicant would suffer any financial hardship.

14. The Tribunal accepts that the applicant may be disappointed in having her visa cancelled. The Tribunal places low weight on this evidence in the applicant’s favour.

15. In all the circumstances, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

16. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

17. The applicant does not have any dependents on her student visa who would be affected if her student visa was cancelled.

18. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

19. The applicant indicated she is now aware of the legal consequences of the cancellation of her student visa, she is aware of the three-year exclusion period as a consequence of her student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

20. The Tribunal accepts that the applicant will need to make her own arrangements to obtain a visa to lawfully remain onshore and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chose not to return to India.

21. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of her student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

22. The Tribunal places low weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

23. The Tribunal asked the applicant if she feared anything in returning to India. In response the applicant said, “no.”

24. In consideration of the above, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

25. When the Tribunal asked the applicant whether there were any other relevant matters before the Tribunal, she indicated that she had made lots of mistakes in her life.

26. She said she felt guilty that her visa was cancelled and that she really wanted to do study. She said that she stays at home all the time and can’t do anything and that was why she felt so low.

27. As indicated above, the Tribunal accepts that the applicant may be disappointed in having her visa cancelled. The Tribunal places low weight on this evidence in the applicant’s favour.

28. No other relevant matters were put to the Tribunal.

    Conclusion

29. The Tribunal finds that the applicant received her Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 14 June 2016.

30. The Tribunal finds that the applicant has not been enrolled in a registered course of study between 17 February 2017 and 22 September 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

31. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

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

    DECISION

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

    Joseph Lindsay

    
    

    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.