Chauhan (Migration)

[2019] AATA 3887

Chauhan (Migration) [2019] AATA 3887 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anmoldeep Singh Chauhan

CASE NUMBER:  1802924

DIBP REFERENCE(S):  BCC2017/4238564

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          23 April 2019 at 2:39 pm (VIC time)

DATE OF WRITTEN RECORD:                13 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 June 2019 at 2:14pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant changed to Vocational courses – non-payment of course fees – financial hardship – decision under review affirmed  

LEGISLATION

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 February 2018 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister on 1 February 2018 cancelling his subclass 573 student visa pursuant to section 116(1)(b) of the Migration Act.

4. The applicant’s visa was granted on 14 August 2015. The visa had been granted on the basis that the applicant would remain enrolled and remain satisfactorily appropriate in relation to one or more registered courses of study for the duration of his study in Australia.  The delegate cancelled the applicant’s visa on the basis that the applicant had breached that condition of the visa which required the applicant to continue to be enrolled in a registered course.

5. The issues in the present care are whether that the ground for cancellation is made out and, if so, whether the visa should be cancelled. The applicant appeared before the tribunal today to give evidence and present arguments.

6. The applicant’s visa was subject to a number of conditions as described by Schedule 8 of the Regulations. In the present case the issue is whether the applicant breached condition 8202 of the Regulations. If the applicant breached that condition the visa may be cancelled pursuant to section 116.

7. Condition 8202 of the applicant’s visa requires that the applicant remain enrolled in a registered course. In the delegate’s decision record the delegate identified the period from 19 May 2017 to 1 February 2018 as being the relevant period in which the applicant was not enrolled in a registered course. The date of 1 February 2018 simply is reflective of the date that the delegate issued the decision to cancel.

8. This amounted to a total time of more than eight months when the applicant was in continuous breach of the visa. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training Provider Registration and International Student Management System known as PRISMS. The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000. It provides a means for education providers in Australia to comply with legislative requirement relating to international students studying in Australia.

9. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status. This allows the Department of Home Affairs to be notified of any issues arising from a student’s general compliance with these conditions once the visa has been issued. In particular, it may be used by course providers to report that they have cancelled a particular student’s confirmation of enrolment certificate in a course which they had previously enrolled and also they may notify the PRISMS database of the reasons for doing so.

10. The PRISMS report obtained by the delegate indicated that the applicant in this case had not been enrolled in a registered course of study since 19 May 2017 up to the date that the delegate made the decision to cancel the visa. In his oral evidence given at the hearing before the tribunal today the applicant admitted that his enrolment in a registered course of study had ceased on 19 May 2017. He did not dispute that fact nor did he dispute that finding made by the delegate.

11. Accordingly, the tribunal is satisfied that the delegate was correct in reaching a conclusion that the applicant was in breach of condition 8202 of the visa for in excess of eight months in 2017 and into the early months of 2018. Having found that the applicant has not complied with the conditions of the visa the tribunal must consider whether the visa should be cancelled.

12. There are no matters identified in the actual Regulations that must be considered to be exercised of this discretion. However, the tribunal is mindful that it should consider circumstances of the case, including any matters raised by the applicant in the course of the hearing of any relevant matters identified in the department’s procedures advice manual known as PAM3 and are titled “General visa cancellation powers”.

13. First of all I turn to the purpose of the visa holder’s travel and stay in Australia and whether there was a particular compelling need to remain in Australia. The purpose of the visa was for educational purposes. The breach of the condition relates to the cessation of education and therefore is a fundamental breach. He remained unenrolled in a registered course of study for eight months of a continuous period. The breach of that condition the tribunal takes very seriously.

14. There was no material before the tribunal that has been presented by the applicant at today’s hearing which suggests he has a compelling need to remain in Australia other than for what appears to be a desire to obtain some kind of qualification from an Australian institution.

15. The applicant arrived in Australia after his visa was granted. He stated in evidence that was about the middle of October 2015. That visa had been granted on the basis that he would enrol and complete, first of all, a Diploma of Business, which would then lead to a degree of a Bachelor of Business specialising in Hospitality at La Trobe University. The applicant stated that he started the diploma and completed one semester there. He passed three out of the five subjects although he was unable to produce any academic transcript to verify this, however ultimately nothing turns on that lack of such evidence. I accept what the applicant says in relation to his passing three out of the five subjects for the purposes of today’s decision.

16. He also stated that he started the first semester four to five days after he actually arrived in Australia. After one semester he decided to abandon his studies in business altogether and enrolled in a Certificate III in Commercial Cookery course. When asked why by the tribunal he chose to make such a drastic change he said that he liked cookery more.  He started commercial cookery in about the middle of 2016. He completed half of it according to his evidence but partway through he ceased his studies and this is what has led to the cancellation of his enrolment, leading to the ultimate breach of his visa.

17. The reason for this pause in his studies was that fees became payable and he could not pay them. He stated in evidence that it was an 18 month course and that he had to pay instalments of approximately $1,000 per month. He could not pay the particular instalment partway through the course and this led to issues arising with the course provider. He stated in evidence, and I accept, that there must have been some discussions with the course provider as to continuation of his enrolment in these circumstances but ultimately it appears that he was unable to obtain the funds to pay for the fees. When asked exactly how much the course provider was demanding that he pay in order for his enrolment to continue the applicant stated that $2,000 was required. He stated that he could not come up with the money.

18. In terms of his explanation for not coming up with the money, ultimately this was not satisfactory from the point of view of the tribunal at today’s hearing. The tribunal asked how he managed to come up with the filing fee for the Administrative Appeals Tribunal application on review, which was approximately $1,800, and in evidence the applicant stated that, after he made representations and requests to friends, he managed to come up with $1,800. The inference drawn is that when he puts in the effort he can come up with the money.  $2,000 is the fee that was being demanded by the course provider and he could not come up with it. The explanation he gave is not satisfactory.

19. The applicant stated that he was stressed when he came here. He was only 21 years old.  And the tribunal accepts that it was a new environment and that he was inevitably going to be stressed and have issues adapting to the Australian way of life. However, that does not excuse the cessation of paying fees when they fell due. It is completely understandable that course provider cancelled his enrolment after discussing with him the issue and found he was unable to pay the $2,000 as owing fees.

20. The applicant stated also that while his parents continue to fund his stay in Australia for the first six to seven months, those funds, which were approximately $1,000 per month, started to dry up after his mother became sick. He also referred to there being some change in currency, which the applicant stated affected the parents’ ability to pay.

21. Again, while the tribunal may be sympathetic to that situation it does not constitute an acceptable excuse for ceasing enrolment. At the end of the day, it is incumbent on a student visa holder to be in a financial position to meet the financial demands of the course provider, in particular in relation to tuition fee requirements.

22. The tribunal has given consideration to the hardship that may be caused to the applicant if the visa is cancelled. The tribunal accepts that if his visa is cancelled he will be forced to depart from Australia and return home to India and his parents without an Australian qualification, which he had hoped to obtain. That is inevitably going to cause psychological and emotional hardship and he will have to face that.

23. The tribunal has also given consideration to the circumstances in which the ground of cancellation arose as stated above. The circumstances have arisen simply out of the applicant’s inability to meet the ongoing payments demanded by the course provider for the purposes of his tuition fees. Those circumstances appear to be borne out of the applicant not willing to make the effort to obtain those fees.

24. The tribunal has also given consideration to the past and present behaviour of the applicant towards the department. As the delegate’s decision notes, that was to the applicant. I note that in answering questions from the tribunal, the applicant was as forthcoming as possible. The tribunal found him to be honest, and he was not trying to skirt around the fact of his breaching the visa. However, those observations are of little import for the purposes of the current application on review.

25. There appear to be no consequential cancellations under section 140. The tribunal has noted mandatory legal consequences in relation to a cancellation that will necessarily follow from that cancellation, which includes the fact that the applicant will become an unlawful non-citizen and may be liable to detention and removal under the Act if he does not voluntarily depart Australia. He will be eligible potentially for a bridging visa that will allow him to remain in Australia for a short time to organise his affairs before his departure.

26. The tribunal notes that he will have limited for future visas in Australia and also public interest criterion 4103 will be applied which means he may not be granted a temporary visa for 3 years following cancellation. Australia’s international obligations do not appear to be engaged by the circumstances of this particular case in all of the circumstances. The tribunal has concluded that the visa ought to be cancelled accordingly. The tribunal affirms the decision to cancel the applicant’s student visa.

    DECISION

27. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member