Chhibber (Migration)

[2018] AATA 5855

Chhibber (Migration) [2018] AATA 5855 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kartik Chhibber

CASE NUMBER:  1825139

HOME AFFAIRS REFERENCE(S):           BCC2018/1914018

MEMBER:Adrienne Millbank

DATE:20 December 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 20 December 2018 at 11:24am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – not enrolled in registered course – not genuine student – record of non-commencement or withdrawal – lack of achievement – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 359AA
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 August 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The visa holder and review applicant (the applicant) was born in India in 1995 and is 23 years old at the time of decision. He first arrived in Australia on 12 October 2013 on a higher education Student (Subclass 573) visa. He was granted a Student (Subclass 500 visa on 7 November 2016).

3. The Delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8202. The Delegate determined that he had not been enrolled in a course of study since 10 October 2017, when his enrolment in the Certificate III in Light Vehicle Mechanical Technology course was cancelled. The Delegate found that the visa holder did not meet the requirements of subclause 8202(2)(a).

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 13 December 2018 to give evidence and present arguments.

6. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about him, set out above, held in the Provider Registration and Information Management System (PRISMS). The Tribunal explained that the information in the database captures a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The Tribunal indicated that the information was relevant because his record of non-commencement or withdrawal and lack of achievement indicated he was not a serious student, and had enrolled in courses for the purpose of maintaining de facto residence in Australia. The Tribunal explained its relevance in that the information in the database might be the reason, or part of the reason, to affirm the delegate’s decision.

7. The Tribunal referred to the applicant’s PRISMs record during the hearing and the applicant was invited to comment on it. The applicant was advised that he could seek an adjournment or further time to consider his response. He did not seek an adjournment, and confirmed that he understood the information and why it was relevant to his case.

8. 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

9. 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. Relevantly, to this case, these include the ground set out in s.116(1)(b), that the Minister may cancel a visa if the Minister is satisfied that its holder has not complied with a condition of the visa. 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?

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 attached to the applicant’s visa. This condition requires, at paragraph 8202(2)(a), that the applicant must be enrolled in a full-time registered course.

11. It is not in dispute that there are grounds for the cancellation. The applicant’s PRISMS record indicates that on 10 October 2017 the student notified his provider of the cessation of his studies. It indicates that his subsequent enrolments (in the Diploma of Automotive Technology and the Certificate IV in Automotive Mechanical Diagnoses) were cancelled for the reason of non-commencement of studies.

12. In his response dated 14 August 2018 to the Department’s Notice of Intention to Consider Cancellation (NOICC) sent on 9 August 2018, the applicant agreed that he did not comply with the condition, and that there are grounds for cancellation. He confirmed this at hearing.

13. 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 the visa should be cancelled.

    Consideration of discretion

14. 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’, as set out below.

    The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia

15. Since July 2014, the applicant has enrolled in: a Bachelor of Business; a Diploma of Commerce; a Bachelor of commerce; an Associate Degree in Commerce and Business; a Certificate III in Light Vehicle Mechanical Technology; a Certificate IV in Automotive Mechanical Diagnosis; a Certificate III in Light Vehicle Mechanical Technology; a Diploma of Automotive Technology; and a Certificate IV in Automotive Mechanical Diagnosis.  Apart from the Diploma of Commerce, which is recorded in the applicant’s PRISMS record as ‘finished’, all the other enrolments were cancelled by the course providers for the stated reasons of non-commencement of studies, or notification by the applicant of cessation of studies.

16. The Tribunal put to the applicant that he has spent over five years in Australia on Student visas, with little to show for it in terms of qualifications. The applicant argued that while he struggled with his Bachelor of Business, he completed sufficient coursework for a Diploma. He confirmed that he has completed no other courses and obtained no other qualifications.  Following the hearing he provided a copy of his Diploma of Commerce from Griffith College, awarded on 12 October 2016.

17. The applicant stated that his problems began with his Bachelor of Business in 2014. He claimed he struggled because: he found it difficult to adjust to studying in another language and country; he was young, naïve and easily distracted; and he is of only average ability as a student. He claimed that after failing a number of units and shortly before the expiry of his first Student visa, he consulted friends and family who advised him ‘to make it easier’ for himself by enrolling in a certificate-level course.  He advised the Tribunal that he had no particular interest in becoming a car mechanic, but the Certificate III in Light Vehicle Maintenance was relatively cheap, and a migration agent advised him not to leave the country without a visa for fear of being refused another one. He claimed that he did attend coursework for the Certificate III in Light Vehicle Mechanical Technology, but had little aptitude for it and returned home to India, exhausted and ill, at the end of 2016, staying for five months, from 29 December 2016 to 18 April 2017.

18. The Tribunal asked the applicant why, given he had not succeeded at Degree level, he did not stay in India and seek employment utilising his Diploma of Commerce. He responded that he would have remained in India after he returned in late 2016, but his parents insisted he return to Australia and obtain a Bachelor degree. He claimed that after his return to Australia in April 2017, he tried, unsuccessfully, to obtain a letter of release from the car mechanic course provider so he could enrol in an accounting degree.

19. The applicant advised that his cousin, with whom he grew up in India, who came to Australia in 2005 on a Student visa and is now an Australian citizen living in Brisbane, is a businessman who shares his time between India and Australia. He advised that since arriving in Australia he has worked at this cousin’s solar panel installation business.

20. When asked about his plans for the future, whether he wanted to stay in Australia or return to India, the applicant advised that after his Bachelor Degree, if he is not successful in obtaining a work visa to remain in Australia, he will return to India. He stated that if he stayed he would continue to work in his cousin’s business, and that while an accounting degree is not necessary for the client-contact role he has been performing, it could enable him to become the payroll officer. He stated that if not successful in transitioning from a Student to a Skilled permanent visa, he will return to India, with an accounting degree. When reminded of his struggles at degree level, he argued that he will succeed where he has failed before because he is older, more mature, aware of how much time he has wasted, and aware also of how much money his family has invested in his studies. 

21. When questioned about his motivation and purpose for pursuing higher education in Australia, he described pressure from his parents, who are not satisfied with his Diploma and want him to obtain a degree for social status reasons. He presented no career or employment plan in India contingent on obtaining a degree, and indicated that he will remain in Australia if afforded the opportunity. He acknowledged that his employment in Australia in his cousin’s solar panel installation business is not connected to his past or proposed studies.  He acknowledged, as noted, that his enrolment in the Certificate III in Light Vehicle Maintenance was for the purpose of securing a visa and return path before leaving the country, rather than, as he claimed in his application for his second Student visa, to pursue a career in India in a family car dealership.

22. The applicant also acknowledged at hearing that there is no reason why he couldn’t do a degree in accounting in India, if his parents insist on him obtaining a degree, apart from the fact that he wouldn’t be given credit for the units he has completed, about one year’s study worth.  As noted, the applicant has spent over five years in Australia on Student visas, during which he obtained just one Diploma. For this reason the Tribunal is not moved by his possible requirement to repeat one year’s study. The Tribunal also notes that the applicant advised that while his parents will be disappointed if he returns without a degree, they would get over it.

23. The applicant was articulate and persuasive at hearing, and the Tribunal accepted his testimony that he is older and wiser and intends, at the time of decision, to complete a degree in accounting. The Tribunal gives this some weight. From the information before the Tribunal including the applicant’s academic record, however, the Tribunal is not satisfied that the applicant’s intention to stay in Australia has been in the past genuinely for the purpose of studying. The Tribunal, further, is not satisfied that the applicant has a compelling need to stay in Australia, and gives these findings more weight.

    The extent of compliance with visa conditions

24. While the applicant on his own admission has not complied with condition 8202, there are no indications before the Tribunal that he has not otherwise complied with visa conditions. The Tribunal gives some weight to this finding.

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

25. The applicant advised at hearing that his family in India is traditionally close and financially secure — his father manages a government hospital in New Delhi. He did not indicate that he has financial concerns about his future, wherever he ends up living. He confirmed that he is at the time of decision mentally and physically healthy. He has no dependents. As noted, he has a cousin in Australia, but this cousin shares his time between India and Australia, and was in India at the time of decision. 

26. The applicant indicated at hearing that he is happy to return to India; that he would have done so already if not for the review, and that the only psychological or emotional hardship he will suffer if his visa remains cancelled will be his parent’s disappointment. The Tribunal notes that the applicant also advised that they would get over it.

27. The Tribunal does not find that significant hardship would be caused to the applicant or his family if the discretion not to cancel the visa is not exercised, and gives weight to this finding.  

    Circumstances in which ground of cancellation arose: whether the circumstances were beyond the visa holder’s control

28. The Tribunal questioned the applicant about his course attendance. He acknowledged that he was young and ‘distracted’ when he first attended university in Australia, but claimed that he attended his coursework for the Bachelor of Business course until he found it too hard. He claimed that he attended the college he subsequently enrolled at for his certificate-level car mechanic studies, albeit without enthusiasm, before returning to India at the end of 2016. He claimed that he also attended the college after his return from India, between June and August 2017, but described this as being mostly for the purpose of attending to disputes about non-payment of fees and non-attendance.

29. The applicant claimed that he did, eventually, pay his full tuition fee for the Certificate III course, but that the provider attempted to coerce him into enrolling in subsequent courses, which he refused to do, because he had reverted to his original plan of becoming an accountant.  He claimed that he was not able to enrol and study accountancy because the provider refused to release him. He provided the Tribunal with copies of four emails from the provider: on 17 July 2017, from the college administrator advising him that the sum of $11,520 was payable ‘by Friday’; on 20 September 2017, advising him to call to discuss his enrolment; on 4 October 2017 advising him that he had until the end of the day to call, else his Confirmation of Enrolment would be cancelled; and two general promotion emails, one offering up to $1,000 for referring a friend to the college, and one containing a $100 discount coupon.

30. In his response to the NOICC, the applicant argued that accounting was his true passion, but his struggles, described above, caused him to suffer anxiety and depression which prevented him from ‘fully’ attending his classes and completing course assignments. He argued, as noted, that he was advised by ‘close family and friends’ that it would be easier to do an alternative course, so he enrolled with another provider to do the Certificate III course in automotive engineering. He claimed he was not satisfied with the management or teaching integrity at the college, so asked for a release letter. He further claimed he had a breakup with his girlfriend and ‘another mental breakdown’ so decided to return to India. On his return to Australia, as noted, he was unable to obtain his release letter from the college; he had ‘another breakdown’; he was medically unfit to study for six months; his mother fell ill; and his uncle in India died.

31. The evidence provided by the applicant does not support his claim that the college where he enrolled to study car mechanics was blackmailing him into enrolling and paying for courses he did not want to do, and that they refused to provide him a release letter because he refused to collude with their corruption. The evidence further does not support that the applicant was prevented by illness, mental or physical, from studying for any significant period, apart from one medical certificate certifying he was unfit for one week, from 12 May 2017 to 19 May 2017.

32. The Tribunal accepts that the applicant had a falling-out with his girlfriend, but notes that at hearing he described their relationship as not serious, and off-again on-again. The Tribunal also accepts that the applicant’s mother suffered an illness, his uncle died, and that he returned to India for five months. No evidence was provided however that the applicant approached his course provider for leave and/or to make arrangements to accommodate his absences or distraction caused by grief or worry about his family in India.

33. Having considered the evidence and arguments, the Tribunal is not satisfied that the circumstances of the applicant’s visa cancellation were not of his own making, and for this reason is not satisfied that they were beyond his control. The Tribunal gives considerable weight to this finding.

    Past and present behaviour of the visa holder towards the department

34. The applicant has maintained legal residence in Australia, and responded to the NOICC. However, on his own admission at hearing, he did not approach the Department regarding his change of circumstances resulting from his dispute with the provider of his car mechanics course until the provider decided to cancel his enrolment.

35. The Tribunal notes also that when the applicant was asked what he declared on his application form when he applied for his second Student visa, he stated that he declared he had plans and intentions of becoming a car mechanic and working in a family car dealership in India. He maintained that he did have such plans and intentions at the time, albeit fleetingly. In light of other evidence he provided about his lack of aptitude or interest in the course, Tribunal did not find this claim convincing.

36. The Tribunal is not satisfied that the applicant was truthful in his application for his second Student visa. The Tribunal finds his past behaviour not to weigh in his favour in considering whether the discretion to cancel his visa should be exercised.

    Whether there would be consequential cancellations under s.140

37. The applicant does not have a partner or children, and there would be no consequential cancellations.

    Any 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

38. There is nothing before the Tribunal to indicate that the applicant would not be able to apply for a bridging visa.  If his visa remains cancelled, he indicated he would return to India.

39. The Tribunal has considered that should the visa holder’s visa be cancelled he would be prevented from lodging further visa applications for a period of three years, except for certain exempt visas, under section 48 of the Act. The Tribunal notes that the applicant has stated that he is prepared to return India, where he would possibly embark on a Bachelor Degree. The Tribunal does not find, given his plans, that the three-year bar would significantly affect him. In any event, the Tribunal does not consider this consequence unreasonable, and gives weight to this finding.

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

40. The applicant has no partner or children who would be affected by cancellation. He confirmed at hearing that he has no reason, such as military service or fear of persecution or civil unrest, not to return to India.

    Any other relevant matters

1. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

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

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   Adrienne Millbank
   Member