Batan (Migration)

[2019] AATA 6167

Batan (Migration) [2019] AATA 6167 (20 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vishal Batan

CASE NUMBER:  1908660

HOME AFFAIRS REFERENCE(S):           BCC2019/278755

MEMBER:David Thompson

DATE:20 October 2019

PLACE OF DECISION:  Perth

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

Statement made on 20 October 2019 at 2:35pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – failed exams – change of course – course provider closed – unable to obtain results – family feud – couldn’t return home – ceased to seek further enrolments – no hardship – 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 4 April 2019 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 the applicant had not been enrolled in any course of study from 6 February 2018 until 4 April 2019 (the date of the delegate’s decision) and so had breached a condition of his 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 17 July 2019 to give evidence and present arguments.

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.

6. It is convenient at this point to consider the applicant’s evidence as presented at hearing. That evidence is essentially the whole of the applicant’s case, as he did not respond to the Department’s Notice of Intention to Consider Cancellation (NOICC) issued to him on 20 March 2019, did not provide any documentary evidence in support of his case to the Tribunal before hearing (although he did provide a copy of his passport and a copy of the delegate’s decision record with his review application), and provided only one item of documentary evidence to the Tribunal following his hearing. The applicant’s evidence as to his arrival in Australia and his studies are summarised in paragraphs 7 to 16 below.

   The applicant’s evidence

7. The applicant is a citizen of the Republic of India. He first came to Australia on 29 February 2014 pursuant to a TU-573 Student Visa, in order to study a package of courses comprised of a one-year Diploma of Business at Perth Institute of Business and Technology (PIBT) and a two-year Bachelor of Business (Management) at Edith Cowan University (ECU).

8. The applicant commenced his Diploma of Business course shortly after arriving in Australia, but found that he could make no sense of it. He sat examinations 3 months into his course and failed everything. The applicant stated that at that point he was homesick and depressed, had made no friends in Australia, and was contemplating giving up and returning home. However, he made some friends and they urged him to stay and consider a change of course.

9. The applicant stated that he took his friends’ advice, and obtained a release from PIBT. That involved the cancellation of his confirmation of enrolment (CoE) for both his Diploma of Business at PIBT and his Bachelor of Business (Management) at ECU.  He then enrolled in a package of hospitality courses, being a Certificate III in Commercial Cookery offered by Cambridge International College, a Certificate IV in Commercial Cookery and a Diploma of Hospitality to be offered by Stanley College, and a Bachelor of Business (Hotel Management) to be offered by Australian School of Management (ASM).

10. The applicant finished his Certificates III and IV in Commercial Cookery, and commenced studies towards his Diploma of Hospitality Management. While he was working towards his Diploma, ASM (from whom the applicant had a CoE) closed down. He received an email from the Tuition Protection Service stating that ASM had 14 days in which to place him in an alternative course or else to refund his unspent tuition fees. Following hearing, the applicant provided the Tribunal with a copy of this email message, which was dated 2 June 2017 and referred to ASM’s default has having taken place on 26 May 2017. The applicant’s evidence was that ASM neither placed him in another course nor refunded his fees, leaving him to find his own enrolment.

11. The applicant said that he approached ECU for a CoE, but was refused. He then approached CQ University in Perth. CQ University offered him a CoE, but he would have had to commence his studies there in the next intake, in a matter of weeks. The applicant stated that at this time he was still studying for his Diploma of Hospitality Management at Stanley College, and so could not do so. CQ University therefore withdrew its offer. At that point, the applicant said, he ceased looking for an alternative Bachelor’s level enrolment and concentrated on finishing his Diploma of Hospitality Management at Stanley College.

12. The applicant gave evidence that he had submitted all of his assessments for his Diploma of Hospitality Management, but that he was unable to obtain a record of results or attainment from his Stanley College. He stated that he had contacted Stanley College on numerous occasions to try and obtain his results, but had been turned way with excuses. On the applicant’s account, those excuses appear to have revolved around the College lacking the staff to mark the applicant’s work.

13. The applicant went on to say that once he had been unable to obtain a CoE for a Bachelor’s level course, he had intended to move on to an Advanced Diploma of Hospitality Management, but that he was unable to do so without his course records. The applicant was asked at hearing which institution he had intended to enrol in for his Advanced Diploma. His reply was that he intended to enrol at Stanley College.

14. The applicant put great weight on his alleged inability to obtain a record of his results for his Diploma of Hospitality Management course. The tenor of his evidence was that this circumstance effectively blocked him from progressing any further with his studies. In strict compliance with s.359AA of the Act, the Tribunal informed the applicant that it had obtained a copy of his record from the Provider Registration and International Student Management System (PRISMS), that his record showed that he had finished his Diploma of Hospitality Management at Stanley College on 28 July 2017, and explained why this was relevant to the Tribunal’s review. The applicant was given an opportunity to comment on or respond to that information, but said only that he had tried to obtain his results from the College on numerous occasions without success. It was put to the applicant that Stanley College would surely not require him to produce a written record of results from a previous course at that college, given that they would have access to their own records. The applicant was unable to answer to this, but instead insisted that he had to have his record of results.

15. The Tribunal asked the applicant what he did after he finished his Diploma of Hospitality Management. He replied that he had continued in his attempts to obtain his record of results for that course. The Tribunal asked the applicant whether he had been doing anything else, and in particular whether he had attempted to enrol in any further course, including any Bachelor’s level course. He replied that he had not. He said that he had wanted to go home, but that a family problem had prevented him from doing so. The applicant explained that this problem was a feud between branches of his family over entitlements to land following the death of his grandfather, and that it had involved violence and police involvement. The applicant’s evidence was that whilst this feud continued, his parents had refused to allow him to return home, on the basis that it was too dangerous. The applicant stated that the feud has now been resolved and that it would be safe for him to return home.

16. The applicant last held a CoE on 8 February 2018. On the applicant’s own evidence, he had ceased active studies when he completed his Diploma of Hospitality Management. According to his PRISMS record, as noted above, he did so on 28 July 2017. It seems likely that the CoE in question related to the applicant’s proposed studies at ASM. The applicant stated at hearing that he had not known that his CoE had been cancelled, and that he received no notification of that fact until he received the Department’s NOICC.

    Findings on applicant’s evidence

17. The Tribunal accepts the applicant’s evidence as set out in 7 to 10 above.

18. The Tribunal is also prepared to accept the applicant’s evidence regarding seeking his enrolments from ECU and CQ University, related in paragraph 11 above. Although no corroborating documentary evidence was produced, that evidence is not incredible in itself. In any event, that evidence is not central to the Tribunal’s determination of this review, which would be unchanged even if the Tribunal were to reject it.

19. The Tribunal accepts that the applicant had intended to enrol in an Advanced Diploma of Hospitality Management at Stanley College, as related in paragraph 13 above, but finds it difficult to accept the applicant’s evidence as related in paragraph 12 and the balance of paragraph 13 above, for the reasons set out in paragraph 14 of these reasons. The Tribunal is not prepared to find that the applicant is lying when he gave that evidence, but rather finds it likely that he was operating on a misunderstanding of the situation, and that there is no reason on the evidence before the Tribunal that the applicant could not have enrolled at least in Stanley College’s Advanced Diploma of Hospitality. It follows that the Tribunal does not accept that the applicant’s alleged inability to obtain his Diploma of Hospitality Management course results from Stanley College prevented him from undertaking any further studies, contrary to the applicant’s evidence noted in paragraph 14 above.

20. There is no evidence before the Tribunal corroborating the applicant’s account of his reasons for staying in Australia after he was unable to find further enrolment, as summarised in paragraph 15 above. The Tribunal finds that evidence somewhat difficult to accept, but notes that in any event it does not provide a cogent explanation for the applicant’s failure to return to India, even if he was unable to return to his family home.

21. Finally, the Tribunal accepts the applicant’s evidence that he received no notice of the cancellation of his last remaining CoE on 8 February 2018, as to which see paragraph 16 above.

    Did the applicant comply with Condition 8202?

22. 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 full-time registered course: 8202(2)(a);

    ·must maintain enrolment in a registered course that, once completed, will provide a qualification at the same or higher level of the Australian Qualifications Framework as the course for which the visa was granted (subject to a limited exception not presently relevant): 8202(2)(b);

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(c)(ii).

23. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from 8 February 2018.

24. As noted above, the applicant did not dispute this. Further, the delegate’s decision record indicates that that date was taken from the applicant’s PRISMS record. On the evidence before the Tribunal, the applicant was not enrolled in a registered course after 8 February 2018. 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 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.’

26. There is no evidence before the Tribunal to suggest that the applicant’s purpose in travelling to Australia was anything other than to study. However, on the evidence before the Tribunal the applicant had effectively ceased active studies by the end of July 2017, and ceased to seek further enrolments soon afterwards. After that point, the applicant’s purpose in staying in Australia is somewhat unclear, although on the evidence summarised in paragraph 15 above (as to which see paragraph 20 above) it was at least for a while to avoid a dangerous situation at home. There is no evidence that the applicant has any compelling reason to remain in Australia. The Tribunal gives this factor only very slight weight in the applicant’s favour.

27. The applicant was non-compliant with condition 8202 from 8 February 2018 until his visa was cancelled on 4 April 2019. That is a period just short of 14 months, and is a very substantial non-compliance. The Tribunal places considerable weight on this factor against the applicant.

28. The immediate cause of the applicant’s non-compliance was the cancellation of his last CoE on 8 February 2018. On the evidence discussed above, the Tribunal infers that the CoE in question related to the applicant’s enrolment in the Bachelor of Business (Hotel Management) at ASM. That provider defaulted on 26 May 2017, and the applicant was aware of this fact from 2 June 2017, when he received the email from the Tuition Protection Service mentioned at paragraph 10 above. The applicant clearly realised that he was no longer enrolled at ASM from that date or very shortly afterwards, as is witnessed by his attempt to find enrolment in alternative programmes at ECU and CQ University. Further, the applicant either did realise or should have realised that he was not enrolled in any other course after he had finished his Diploma of Hospitality Management. Whilst ASM’s default was a circumstance beyond the applicant’s control, he had ample opportunities to find alternative enrolment. As was noted in paragraph 19 above, the Tribunal does not accept the applicant’s contention that he was prevented from finding further enrolments by an inability to obtain results from Stanley College. In these circumstances, the fact that the applicant had no control over ASM’s default becomes considerably less significant than it might otherwise have been. Nor does it extenuate the extent of the applicant’s non-compliance to any great degree. Consequently, the Tribunal gives only slight weight to this factor in the applicant’s favour.

29. The applicant was asked at hearing whether he or anyone else would suffer hardship as a result of the cancellation of his visa. He stated that neither he nor anyone else would suffer hardship, and stated further that his family has a good business and farming land from which he could make a livelihood. The Tribunal gives this factor no weight, either for or against the applicant.

30. There is no evidence before the Tribunal that cancellation of the applicant’s visa would lead to consequential cancellations under s.140 of the Act. Nor is there any evidence suggesting that cancellation of the applicant’s visa would result in a breach of any of Australia’s international obligations. The Tribunal gives these factors no weight, either for or against the applicant.

31. There is no evidence before the Tribunal suggesting that the applicant has been uncooperative or evasive, or has acted in bad faith in any way, in his dealings with the Department. The Tribunal gives this factor some weight in the applicant’ favour.

32. If the applicant’s visa were cancelled, he might in due course become an unlawful non-citizen and become liable to be detained pursuant to s.189 of the Act, and removed from Australia under s.198 of the Act if he does not leave the country voluntarily. His options for applying for further visas whilst in Australia would be limited pursuant to s.48 of the Act, and Public Interest Criterion 4013 might prevent him from being granted certain temporary visas for a specific period. Although there are intended consequences of a breach of visa condition under the Act, the Tribunal gives this factor a little weight in the applicant’s favour.

33. There is no other relevant matter to be considered on the evidence before the Tribunal.

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

    DECISION

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

    David Thompson
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(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.