Chandi (Migration)

[2020] AATA 2392

Chandi (Migration) [2020] AATA 2392 (27 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Guralam Jeet Singh Chandi

CASE NUMBER:  1713731

HOME AFFAIRS REFERENCE(S):          BCC2017/1423508

MEMBER:Gregory Sarginson

DATE:27 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 27 March 2020 at 12:46pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – limited academic progress – applicant changed to vocational courses – limited efforts to re-enrol – applicant seeking permanent residency – decision under review affirmed          

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 June 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 delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study since 12 October 2016, and the delegate did not believe the discretion not to cancel the visa should be exercised in favour of the applicant. 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 14 August 2019 to give evidence and present arguments.

4. Prior to the hearing, the applicant had provided the following documents to the Tribunal in support of his application for review:

   a)    The decision of the delegate dated 22 June 2017.

   b)    A Diploma of Business from Omega Training Pty Ltd dated 11 June 2016.

   c)    An Advanced Diploma of Business from Omega Training Pty Ltd dated 13 March 2017.

   d)    Transcripts of results from Omega Training Pty Ltd in respect of the Diploma of Business and Advanced Diploma of Business.  In respect of each course the applicant had completed 8 units and received the result “C”.  The transcript of results did not state what “C” meant.

   e)    An undated written statement of the applicant.

   f)     An ‘E Medical Information Sheet’ dated 16 June 2017 stating it “outlines the status of the immigration health examinations that you have undertaken at eMedical clinic”.

   g)    A letter of acceptance from the University of Northern British Colombia dated 27 June 2017 in respect of the applicant being offered enrolment in a Bachelor of Computer Science degree, with classes commencing on 6 September 2017.  The document stated that the letter of acceptance would expire on 20 September 2017.

   h)    The Visa Grant Notice from the Department of Immigration and Border Protection (as it then was) in respect of a Bridging Visa E dated 20 July 2017.

   i)   Various receipts from University of Northern British Colombia, including a receipt dated 27 June 2017 for $7,000.

   j)   IELTS Test Report Form dated 20 June 2017.

5. Prior to the hearing, the Tribunal had obtained the following documents:

   a)    Provider Registration and International Student Management System (‘PRISMS’) record from the Department of Education.  A PRISMS record sets out the courses enrolled in by an international student.

   b)    Movement records

   c)    The applicant’s file from the Department of Immigration and Border Protection (as it was then known) relevantly containing a Notice of Intention to Consider Cancellation of Visa dated 1 June 2017, and a response to the NOICC dated 7 June 2017 by the applicant’s registered migration agent.  

6. 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

7. 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?

8. 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).

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

10. The applicant agreed with the information contained in the delegate’s decision that he was not enrolled in a registered course of study from 12 October 2016.

11. 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

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 Procedural Instruction ‘General visa cancellation powers’.

    Evidence of the Applicant

13. The applicant was born on 3 February 1995.  His home country is India.

14. The applicant arrived in Australia in about late 2014 or early 2015 on a student visa that had been granted on 9 December 2014.  The applicant was enrolled in a Bachelor of Information Technology degree at Federation University.  The applicant was studying at the Sydney campus of the education provider.

15. The applicant completed the first semester of study and 2 units of the second semester of study in the Bachelor of Information Technology degree.  The applicant did not complete any units of study at in the Bachelor of Information Technology degree at Federation University after second semester in 2015.

16. The applicant had a cousin brother who had resided in Australia since 2008.  The applicant’s cousin brother advised the applicant it was more likely he would be able to obtain permanent residency if the applicant studied business rather than information technology.

17. The applicant sought advice from a migration agent, who gave the applicant advice of various courses the applicant could enrol in.   The applicant enrolled in Diploma of Business and Advanced Diploma of Business at Omega Training Pty Ltd (‘Omega Training’)  The applicant could recall his date of enrolment.  The applicant also enrolled in a hospitality course at the Australian College of Vocational Studies.  The applicant could not recall the date he enrolled in this course.  The applicant asked to view his telephone to check the relevant information, which was contained in emails on his telephone.

18. The Tribunal gave the applicant permission to look at his telephone.  The applicant stated he had enrolled at Australian College of Vocational Studies in January 2016.

19. The applicant stated did not recall being given any Confirmation of Enrolment document from either Omega Training or Australian College of Vocational Studies.

20. The applicant did not undertake any significant studies at Australian College of Vocational Studies.

21. The applicant stated that the reason he enrolled in courses at both Omega Training and Australian College of Vocational Studies to study for business qualifications and hospitality qualifications was to obtain sufficient points so that he could apply for permanent residency.

22. The Tribunal asked the applicant what was his purpose in coming to Australia in 2015.  The applicant stated that his intention was to study and apply for permanent residency.  The applicant stated that his intention was to return to India only if he failed to obtain sufficient points to qualify for permanent residency.

23. The Tribunal asked about the circumstances in which he ceased to be enrolled in a registered course of study.  The applicant stated that because he was studying at Omega Training he believed he was enrolled in a registered course of study.

24. When the applicant received the NOICC from the Department, he contacted the migration agent from whom he had been receiving advice.  The agent prepared the response to the NOICC.  The agent told the applicant he would state that the applicant was homesick and depressed.  The applicant stated that the information contained in the response to the NOICC was incorrect.  The migration agent also advised the applicant that if his student visa was cancelled he could apply for a visitor’s visa, and then subsequently a fresh student visa. The applicant stated that based on this advice, he unsuccessfully applied for a tourist visa.

25. The applicant was asked about what he had done in regards to study after he had completed the Diploma of Business and Advanced Diploma of Business courses.  The applicant stated that in May 2017 his sister arrived in Australia from Canada on a visitor’s visa.  The applicant’s sister resided in Canada.  The applicant’s sister encouraged the applicant to study in Canada.  The applicant was accepted into a Bachelor of Computer Science degree at Northern British Colombia University in June 2017 and paid course fees.

26. The applicant stated he had enrolled in a Bachelor of Computer Science degree because he was “interested” in computing, and had developed his own software. The applicant stated that he did not have any tertiary qualifications in India before arriving in Australia on a student visa in 2015.  The applicant had completed high school in India.

27. The applicant was asked why he had decided not to take up the offer to study in Canada.  The applicant stated that because his cousin brother was in Australia; and he was used to Australia he preferred to remain in Australia.  The applicant stated that as soon as his sister left Australia and returned to Canada the applicant cancelled his enrolment and received a 90% refund of the fees he paid.

28. The applicant stated that he had not enrolled in any courses after he completed the Diploma of Business and Advanced Diploma of Business at Omega Training.  When asked why he had not enrolled in any further courses, the applicant stated that he believed he could not study on a bridging visa.

29. The applicant was asked about his future plans.  The applicant stated that if he remained in Australia and his student visa was not cancelled, he would seek to enrol in a Bachelor of Business degree.  If the applicant returned to India or studied in another country he would study computing or information technology as that is the area he is most interested in, due to having developed his own software in the past.

30. The applicant was asked about his circumstances in Australia.  The applicant stated that he had worked part time as a payroll officer at a taxi operator. Approximately 2 years ago the applicant had obtained a taxi licence.  The applicant drives occasional shifts while working as a payroll officer at the taxi operator.  The applicant stated he works 4 hours per day for an average of 5 days every fortnight.  The applicant earns approximately $400 net per fortnight.  The applicant occasionally sends money back to his family in India.

31. The applicant shares accommodation with his cousin brother and 2 other persons in a house.  The applicant stated that he is close to the persons he shares accommodation with and regards them “like brothers”.

32. The applicant was asked about what hardship would be incurred if the visa remained cancelled.  The applicant stated that he would find it difficult to study in India as he has not studied beyond high school in his home country and has been in Australia since 2015. 

33. The applicant stated that his family would be disappointed if he returned to India without tertiary qualifications beyond what he had achieved at Omega Training.

34. The applicant was asked if there were any reasons why he could not study in Canada, in circumstances where his sister lived in Canada and he had been previously accepted into a Bachelor of Computer Science degree in Canada.  The applicant stated that he would not be used to the environment in Canada, but was used to living in Australia.

    PRISMS Record

35. The PRISMS record of the applicant stated that the applicant had been enrolled in two (2) registered courses of study.   The first was a Bachelor of Information Technology degree commencing on 23 March 2015.  The second was an Advanced Diploma of Hospitality degree commencing on 18 January 2016.  There were two enrolments in the Advanced Diploma of Hospitality degree with both enrolments commencing on 18 January 2016 and the only relevant difference being the date the course was to end.

36. The Tribunal identified to the applicant the information contained in the PRISMS record.  In accordance with the procedure in Section 359AA of the Act, the Tribunal stated that the information would be the reason or part of the reason for affirming the delegate’s decision as, notwithstanding the applicant’s study at Omega Training, the applicant had only been enrolled in two registered courses of study since arriving in Australia and had not completed the Bachelor of Information Technology degree course or the Advanced Diploma of Hospitality Course. 

37. Further, the applicant had ceased studying for a Bachelor of Information Technology degree and sought to study other courses for, on his own evidence, the purpose of obtaining permanent residency.  Such failure to complete courses of registered study in the context of the length of time the applicant had been in Australia would be the reason, or part of the reason for affirming the decision because it was inconsistent with the applicant residing in Australia for the purpose of study.  The applicant was informed that he could comment on or respond to the information contained in the PRISMS record at the hearing, or seek additional time to comment or respond. 

38. The applicant stated that he did not seek additional time to comment on or respond to the information contained in the PRISMS record.  The applicant’s response was that he had come to Australia to study in courses which would give him the best opportunity to achieve permanent residency in Australia.  The applicant stated that he regretted not studying in registered courses of study, but had received poor advice from his migration agent.

39. Further, the applicant stated that he was advised by his migration agent that the courses of study at Omega Training were not registered courses of study and that he need to enrol in a registered course of study, but the applicant had studied at Omega Training on the basis that it would be of assistance to enrolling in a Bachelor of Business degree, the completion of which would assist the applicant in obtaining permanent residency.  The applicant stated that he had also believed that the Advanced Diploma of Hospitality course would be of assistance in enrolling and completing a Bachelor of Business degree.

    Travel To And From Australia

40. The applicant stated that he had not travelled from Australia since his initial arrival on a student visa.

41. The evidence of the applicant regarding his travel was consistent with the information contained in the movement record.  No adverse information was contained in the movement record.

42. The Tribunal considers the relevant factors, including matters raised by the applicant and the departmental guidelines, as follows:

    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

43. On the one hand, the evidence of the applicant was that the purpose of his travel and stay in Australia when he arrived on a student visa was genuinely to study.  On the other hand, the evidence of the applicant was that he had changed courses and had sought advice from a migration agent for the purpose of earning sufficient points for the applicant to qualify for a permanent visa.  The policy of a student visa is that it is a temporary visa in which the visa holder is enrolled in a registered course of study and genuinely in Australia for the purpose of study on a temporary basis.

44. The Tribunal accepts that a person who lawfully resides in Australia may seek to apply for other visas to which they are lawfully entitled to apply for.  However, the applicant’s intention to seek to obtain permanent residency considered in the context of the length of time the applicant has been in Australia; the applicant’s failure to complete the Bachelor of Information Technology degree and Advanced Diploma of Hospitality; and enrol in any further registered courses of study is inconsistent with the purpose of the visa holder’s travel and stay in Australia being genuinely to study with the intention of returning to his home country at the completion of the registered course of study.

45. In respect of the above the Tribunal has taken into account that the applicant did complete a Diploma of Business and Advanced Diploma of Business at Omega Training.  Such courses were not registered courses of study.  Further, the applicant has not enrolled in any registered courses of study after completion of the Advanced Diploma of Business at Omega Training.

46. The Tribunal gives this factor little weight in favour of exercising the discretion not to cancel the visa.

    The Extent Of Compliance With Visa Conditions

47. The applicant has not been enrolled in a registered course of study since 12 October 2016.  The applicant had not been enrolled in a registered course of study for approximately 8 months prior to the cancellation of the visa, and has not been enrolled in a registered course of study since.

48. The Tribunal has taken into account that the applicant did study and complete a Diploma of Business and Advanced Diploma of Business at Omega Training in 2016 and 2017, which were not registered courses of study.  The Tribunal gives some weight in favour of the applicant by reason of his completion of the Diploma of Business and Advanced Diploma of Business.  The applicant has also taken into account the evidence of the applicant that he believed he could not study on a bridging visa.  However, there was no evidence the applicant had ever sought advice about this issue, or that there was any condition of the bridging visa preventing him  from enrolling in a registered course of study.

49. Further, as was noted in the delegate’s decision and in the evidence of the applicant, the applicant applied for a visitor’s visa after the cancellation of his enrolment in a registered course of study.  The applicant’s explanation for such an application was that he had received poor or inadequate advice from a migration agent.  The Tribunal accepts that the applicant acted upon the advice he was given by his migration agent to apply for a visitor’s visa, and does not consider this to be adverse to the extent of compliance with visa conditions.

50. In respect of work performed by the applicant, the applicant’s evidence was that his hours of work are consistent with the work conditions of both a student visa and a bridging visa.

51. However, the Tribunal regards the failure of the applicant to remain enrolled in a registered course of study and failure to enrol in a registered course of study for a lengthy period of time to be a significant breach of condition 8202.

52. The Tribunal gives this factor significant weight towards the visa being cancelled.

    Degree Of Hardship That May Be Caused (Financial, Psychological, Emotional Or Other Hardship)

53. The Tribunal accepts that the applicant may suffer some hardship due to cancellation of the visa, because the applicant’s family will experience disappointment if the applicant returns to India without achieving academic qualifications beyond the Diploma of Business and Advanced Diploma of Business obtained from Omega Training.

1. However, weighed against that is the fact that the applicant successfully applied for enrolment in a Bachelor of Computer Science degree at University of British Colombia in 2017 and that the applicant’s sister resides in Canada.  The evidence does not indicate that there is any significant or compelling reason why the applicant could not study in his home country or study in Canada if the visa remains cancelled.

2. The Tribunal gives this factor little weight in favour of exercising the discretion not to cancel the visa.

   Circumstances In Which Ground Of Cancellation Arose. If Cancellation Is Being Considered Because Of Relationship Breakdown, Whether The Relationship Has Broken Down As A Result Of Family Violence. The 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

3. The circumstances in which the ground of cancellation arose (being failure to remain enrolled in a registered course of studies) were not due to circumstances beyond the control of the applicant.

4. The Tribunal accepts that the applicant may have received poor or inadequate advice from his migration agent, but this has occurred in the context of the applicant seeking advice on what he should do to obtain a permanent residency visa. 

5. The applicant has also considered the written statement of the applicant filed with the Tribunal in support of the application.  That statement included the following:

   “Being so far from home and being on my own for the first time in my life made it difficult for me to keep focus as there were nights where the memories of my family overwhelmed my emotions and handicapped me to the point I was unable to make any move away from my own comfort.  I still managed to find a way to complete the programs I had enrolled in alternatively (sic).  I how have realised how grave my mistake has become and now know the work it will date to maintain my residence in the nation”.

6. The Tribunal accepts that the applicant may have had some difficulties in adjusting to study in Australia, but the applicant was able to complete subjects in the first and second semester of study in the Bachelor of Information Technology degree; and complete the non-registered courses of study in respect of the Diploma of Business and Advanced Diploma of Business courses at Omega Training.

7. There was no evidence of the applicant having received any treatment for any psychological condition that would affect his ability to remain enrolled in a registered course of study.

8. The Tribunal gives this factor little weight in favour of exercising the discretion not to cancel the visa.

   Past And Present Behaviour Of The Visa Holder Towards The Department

9. There is nothing to indicate that the applicant has not been truthful or co-operative towards the Department.  The applicant responded to the NOICC, albeit that the response was brief and made by the applicant’s migration agent.

10. The applicant made an application for a visitor’s visa but the Tribunal accepts the evidence of the applicant that this occurred due to the poor or inadequate advice of his migration agent.  In any event, the application for a visitor’s visa was refused.

11. The Tribunal gives this factor some weight towards the visa not being cancelled.

    Whether There Would Be Consequential Cancellations Under S.140

12. This factor is not relevant.

    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

13. If the visa remains cancelled, the consequence of cancellation will be that the applicant will be obliged to leave Australia within the stipulated period or be liable for mandatory detention.  There may also be limits on the ability of the applicant to apply for further visas.  However, this is the intended operation of the provisions.

14. The Tribunal gives this factor little weight towards the visa not being cancelled.

    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

15. There is nothing in the applicant’s evidence to suggest that cancellation of the visa would cause breach of Australia’s international obligations as a result of the cancellation.

    If It’s A Permanent Visa, Whether The Former Visa Holder Has Strong Family, Business Or Other Ties In Australia

16. This factor is not relevant as a student visa is a temporary visa.

    Any Other Relevant Matters

17. There are no other relevant matters.

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

    DECISION

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

    Gregory Sarginson
    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.