Darji (Migration)

Darji (Migration) [2020] AATA 1054 (16 March 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Foramben Nishantkumar Darji
Mr Nishant Dilipbhai Darji
CASE NUMBER:  1934672
DIBP REFERENCE(S):  BCC2019/3263252
MEMBER:Michael Bradford
DATE OF DECISION:  16 March 2020
DATE CORRIGENDUM
SIGNED:8 April 2020
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words ‘The Tribunal affirms the decision to cancel the first named applicant’s Class TU Subclass 573 visa’ on the Decision Record Cover Sheet should be replaced with ‘The Tribunal affirms the decision to cancel the first named applicant’s Class TU Subclass 500 visa’.
The words ‘It is important for the Tribunal to recognise in a case such as this, and indeed at the end of the day it is in the Tribunal’s view a matter of considerable weight, that the TU 573 visa was granted to the applicant to enable her to obtain a higher academic qualification in Australia by enrolling in and completing a registered course at the required AQF level’ at paragraph 87 should be replaced with ‘It is important for the Tribunal to recognise in a case such as this, and indeed at the end of the day it is in the Tribunal’s view a matter of considerable weight, that the TU 500 visa was granted to the applicant to enable her to obtain a higher academic qualification in Australia by enrolling in and completing a registered course at the required AQF level’.
The words ‘The Tribunal affirms the delegate’s decision to cancel the applicant’s Subclass 573 Higher Education Sector visa’ at paragraph 99 should be replaced with ‘The Tribunal affirms the delegate’s decision to cancel the applicant’s Subclass 500 Student visa’.
Statement made on 08 April 2020 at 2:01pm
Michael Bradford
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Foramben Nishantkumar Darji and
Mr Nishant Dilipbhai Darji
CASE NUMBER:  1934672
HOME AFFAIRS REFERENCE(S):          BCC2019/3263252
MEMBER:Michael Bradford
DATE:16 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU Subclass 573 visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 16 March 2020 at 12:48pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – study at lower level than visa requirement – discretion to cancel visa – poor study history – non-commencement and cancellation of higher-level course, discontinuation by provider of lower-level course and enrolment in vocational course – inconsistent evidence – enrolment in further courses after hearing invitation sent – uncorroborated assertions of misconduct by agents and education provider – decision under review affirmed for first applicant, no jurisdiction for second applicant
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)
STATEMENT OF DECISION AND REASONS
Background and some procedural aspects

This is an application to review a decision made by a delegate of the Minister for Home Affairs (the Department) to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the first named applicant (the applicant) had not complied with a condition on which her visa was granted, namely condition 8202.The issues in the present case are whether that ground for cancellation is made out, and if so, whether her visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant. The other visa, which was granted to the second named applicant (her husband) was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal on 6 March 2020 to give evidence and present her case. The Tribunal received oral evidence from the applicant over a period of about 3 hours. The other applicant did not give evidence. The hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.
At the conclusion of the hearing the Tribunal reserved its decision.
The Department’s decision and associated material
In her Visa Application (VA) the applicant informed the Department that her intention was to obtain a Master of Commerce degree at Curtin University and to complete the CPA requirements in Australia before pursuing a career as a Professional Accountant in one of the large accounting firms such as KPMG, PWC and Ernst & Young. This was consistent with her previous studies in India where she had, in August 2013, obtained a Bachelor of Commerce with a major in accounting. It was also consistent with her work history in India of having been employed as a Junior Accountant by a Tax Consultant during the period from August 2013 to July 2017.
The Tribunal notes that, apart from completing the VA form, the applicant wrote a long letter to the Department which she signed explaining in not inconsiderable detail her reasons for wanting to pursue higher level accounting studies in Australia.
The visas were granted to the applicants off shore on 30 May 2017, shortly before they arrived in Australia from India on 14 July of that year. According to the decision, the TU 500 visa had an expiry date of 15 March 2020. This is confirmed by the Movements Details obtained by the Tribunal shortly prior to the hearing and by other documents in the Department’s file.
The second and operative NOICC was served on the applicant on 21 November 2019 and was based on an asserted non-compliance with condition 8202(2)(b) which required the applicant to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or higher than, the registered course in relation to which the visa was granted.
The NOICC recites and the applicant has not disputed, either before the delegate or the Tribunal, that the registered course in relation to which her visa was granted was the Master’s degree at Curtin, a University located in Perth, Western Australia; that the Masters course was an AQF level 9 qualification; that the applicant’s enrolment in that course came to an end on 17 October 2017 when it was cancelled for non-commencement of studies; and that she had not subsequently been enrolled in a course at AQF level 9 or higher since her enrolment in a Master of Business Administration (MBA) at the Universal Business School Sydney (UBSS) came to an end on 24 May 2018.
In response to the NOICC the applicant sent to the delegate another long letter of 28 November 2019 which she also signed. Although the applicant in this letter disputed that she was in breach of the condition she did not seek to challenge the essential facts on which the NOICC was based. Reduced to its simplest terms, she said in her response letter that as the breach had not come about intentionally she was not in breach and she went on to provide some historical detail regarding the vocational studies she had undertaken since her enrolment in the MBA had terminated and explained that she had chosen to go down the vocational path because she received advice to the effect that study at the Master’s level would be too difficult for her. The Tribunal notes that the applicant does not state in this letter that she was unaware that she was required to maintain a higher education enrolment in accordance with condition 8202(2)(b).
Implicit in this response to the NOICC is an acceptance from the applicant that her visa was in fact subject to that and that she was in fact aware of the requirements imposed by this condition at the time she enrolled in the vocational course.
At the time the 28 November letter was written the applicant was enrolled in a Certificate III in Light Vehicle Mechanical Technology (the CIII) at the Australian Health and Management Institute (AHMI).
In the letter she also accepts that she came to Australia for the purpose of completing a higher education, asserts that she has been gradually progressing towards it and that she had never made any variations to her study plans.
The delegate’s finding that the applicant had not been enrolled in an AQF level 9 course or higher since 24 May 2018 was thus not relevantly in dispute and was in any event based on objective information in the PRISMS record.
Accordingly the delegate was satisfied that the applicant had not complied with condition 8202(2)(b).
As to whether the visa should be cancelled, the delegate considered the purpose of the applicants travel to and stay in Australia, the extent of her non-compliance with condition 8202(2)(b), the degree of hardship which would be caused to her and her family (including her husband) in the event that her visa was cancelled, the circumstances in which the ground for cancellation arose, her behaviour towards the Department and other factors of relatively little or no weight.
After taking into account all of these factors, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling it. Accordingly, the applicant’s visa was cancelled.
For the following reasons, the Tribunal has concluded that the decision should be affirmed.
Review issues
As noted earlier, the applicant continued to dispute before the Tribunal that she had been in breach of the relevant condition although she did not dispute the essential facts on which the NOICC was based these being that, at the time of the delegate’s decision, she was not enrolled in a registered course of study at the required AQF level and, indeed, that she had not been so enrolled since her enrolment in the MBA was cancelled on 24 May 2018.
This being so, it will be necessary for the Tribunal to consider two issues in this review; firstly, whether the applicant has not relevantly complied with condition 8202(2)(b) and, secondly, if she has in fact breached that condition, whether her visa should be cancelled under Sec 116(1) of the Act.
Of course, the Tribunal must conduct the review afresh having regard to the evidence before it whether or not that evidence was before the delegate.
Procedural and preliminary aspects arising in the review
The applicant has engaged with the Tribunal in the review process. She responded to the Tribunal’s invitations to attend the hearing and to provide information in support of her case.
The Review Application was filed on 8 December 2019 and was accompanied by the documents identified in the form, among them being a copy of the delegate’s reasons for his decision.
The Hearing Invitation was sent to the applicant on 7 February 2020 and a completed and signed Response Form was received from her on or about 14 February 2020.
A completed and signed MR5 Form appointing a registered migration agent, namely Ms Tapaswini Patel, as her authorised representative was received by the Tribunal on or about 14 February 2020.
A written submission from Patel was also received on or about that date. Among the documents attached to this submission are two COE’s from AHMI relating to the applicant’s enrolment in a Diploma of Leadership and Management and a Graduate Diploma of Management (the AHMI Management courses). These records, the Tribunal notes, were generated simultaneously on 13 February 2020, that is to say some 6 days after the Hearing Invitation was sent to the applicant.
On 15 February 2020 the applicants applied for a Bridging E Visa and on 18 February that visa was granted to them.
The applicant appears to have terminated Patel’s services by an email sent to her on 17 February 2020. The applicant gave no reasons for this in the email although she did request Patel to refund fees which, according to the email, had been paid to her.
An MR6 Form signed by the applicant on 2 March 2020 appointing a Mr Prashant Naik as her authorised recipient and cancelling Patel’s authority to act for her was received by the Tribunal on that date.
On 2 March 2020 the applicant sent another long letter to the Tribunal informing it that Patel was no longer acting for her and that certain information which she (Patel) had provided to the Tribunal in the submission was incorrect. The letter goes on to identify inaccuracies in Patel’s submission regarding the applicant’s her study history in Australia. The letter also complains at some length about the conduct of her former education agent and counsellor, a Dr Bharatdanji Gadhavi, who (although not specifically identified in the letter) is said to have retained Patel to provide the submission without the applicant’s knowledge or consent.
Although the 2 March letter does not actually contain any evidence to this effect, the applicant indicated in the early stages of her oral evidence that she terminated Dr Gadhavi’s services at or about the time she sent this letter to the Tribunal. No other documentary evidence to this effect has been tendered in her review case, however.
On 3 March 2020 the applicant sent another email to the Tribunal which makes some further complaints about Dr Gadhavi’s conduct and indicates what her understanding was as a result of her dealings with him concerning the maintenance of the required AQF level in Australia. This is broadly to the effect that she was misled and did not know about this requirement until the NOICC was served on her.
On 3 March 2020 Patel sent an email to the Tribunal confirming that she was no longer acting for the applicant.
On 4 March 2020 the applicant sent a further email to the Tribunal, this time disparaging AHMI. At first glance this seemed a rather curious thing for her to do but it later became apparent from her oral evidence that Patel is alleged to have procured her enrolments in the AHMI Management courses without having obtained her instructions and that she either did not intend to undertake studies in either of these courses or she intended to proceed with only one of them. Initially she said in her evidence that she wanted to do the Diploma but not the Graduate Diploma but later reversed this saying that she wanted only to do the Graduate Diploma after completing other vocational automotive courses.
In another email of 4 March 2020 the applicant expands on her previous complaints about Gadhavi, says that she relied on him for advice and reiterates that she was unaware of the “migration regulations” which, in the overall context, is taken to refer to (or at least includes) the requirements of condition 8202(2)(b) insofar as they apply to her.
Shortly before the hearing the Tribunal obtained a PRISMS Record and Movements Details for the applicant the content of which was largely uncontroversial.
During the course of the hearing the applicant provided, in response to the Tribunal’s requests, some additional documents consisting of an email from AHMI to the applicant of 6 March 2020 together with the cancelled COE’s referred to in that email relating to the automotive package which (in sequence) consisted of the CIII, a CIV in Automotive Mechanical Diagnosis, a Diploma of Automotive Technology and a Graduate Diploma of Management (the AHMI automotive package). The applicant’s enrolment in each of these courses was cancelled on or about 14 February 2020.
Also provided during the hearing was a Release Letter of 23 May 2018 from Group Colleges Australia (GCA) to the applicant relating to the MBA at UBSS.
Evidence and findings
Is the power to cancel the visa enlivened-has the applicant breached condition 8202(2)(b)?
At the hearing the applicant did not dispute that she had not been enrolled in a registered course of study at the required AQF level since her enrolment in the MBA came to an end on 24 May 2018, now almost 1 year and 10 months ago. PRISMS confirms as much. Nor did she dispute that her enrolment in that course came to an end when she ceased studies in that course after failing the 3 subjects attempted in the First Semester.
In the Tribunal’s view, it simply does not matter whether the applicant intended to breach the condition. She has given evidence to the effect that she has been misled by her education agent and that she has made attempts to enrol in Master’s courses since that time but these have been unsuccessful. For reasons to be given later in this decision, the Tribunal does not accept, in the absence of other reliable evidence, that she has been misled as alleged, nor does it accept in the absence of that kind of evidence that she has made attempts to enrol in other Master’s courses but even if one assumes for present purposes that she has been misled and/or has made such attempts it cannot affect the issue of breach, whatever weight might be given to these circumstances (if proved) at the discretionary level.
In the Tribunal’s finding, the applicant was most probably well aware of the effect of the condition at the time of breach and, in any event, she had the responsibility of familiarising herself with the conditions on which her visa had been granted and must be taken to have been aware of them.
In addition to that, the Tribunal can take notice of the fact that the Department invariably takes steps to inform visa applicants of the conditions on which their visas have been granted. There is nothing in the applicant’s evidence in this case on which to suggest that such steps were not in fact taken. Although the applicant denied any knowledge of condition 8202 in her oral evidence the Tribunal does not accept this evidence.
This being so, the breach by the applicant of condition 8202(2)(b) is clearly established on the evidence and the power to cancel her visa under Sec 116(1)(b) is enlivened.
Should the visa be cancelled?
Having found that the applicant has not complied with a condition of her visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations which must be considered in the exercise of this discretionary power. Obviously, the Tribunal must have regard to the individual circumstances of the case, including the matters raised by the applicant together with the other matters referred to in the relevant part of the Department’s Procedures Advice Manual (PAM), or the equivalent. These matters will be specifically addressed later in these reasons.
Before coming to the detail of the applicant’s evidence in relation to this issue it is firstly necessary to make some general observations about her creditability and reliability.
The Tribunal is unable to accept her evidence unless that evidence is consistent with the objective features of the case, is otherwise inherently plausible, is corroborated by other reliable evidence or amounts to an admission against her interests. There are various reasons which have led the Tribunal to approach her evidence in this way.
Firstly, aspects of her evidence can only be described as quite contrived and misleading. For example, in her oral evidence she at first said that in the First Semester of her MBA course at UBSS she studied three units consisting of two accounting subjects and one management subject and went on to indicate that, as she found the accounting particularly difficult, this was the reason why she failed all three subjects. This evidence is at odds with the Academic Transcript relating to this course, a document which the Department had obtained directly from UBSS shortly prior to the cancellation, which identifies the subjects which she studied in this Semester as Organisational Behaviour, Financial Management and Corporate Strategy. When her attention was drawn to this at the hearing, the applicant accepted (contrary to her earlier evidence) that none of these courses in fact involved the study of accounting but she said that they (or some of them) did involve doing “sums and calculations” which she found difficult. The Tribunal finds this evidence to be unconvincing, and indeed regards it as a deliberate attempt to mislead given her previous level of education and work experience as an assistant accountant in India.

Secondly, as to her demeanour, whilst the Tribunal is generally reluctant to place too much emphasis on this type of thing, particularly in cases where the evidence is given through an interpreter, the applicant in this case had a tendency to make speeches in purported answer to simple questions if and when it suited her. On a number of occasions she did not address the question at all and failed to heed the Tribunal’s requests that she do so. The applicant presented as confident, determined and reasonably intelligent who well understood the questions (on occasions even before they were translated) but was from time to time inclined to deal with them in a way which she felt would best advance her case.
Thirdly, the applicant was willing to change her oral evidence almost in the same breath if she thought it would help her. The evidence concerning her recent AHMI enrolments and whether she intended to undertake either or both of these management courses is an instance of this.
Fourthly, there are too many inconsistencies in her account both within her oral evidence and as between that evidence and her documentary case, particularly her letters. Her oral evidence regarding whether she wanted to undertake a Master’s course after she completes the Management courses at AHMI, or either of them, is an instance of this. Another instance is to be found in her oral evidence to the effect that her difficulties with the MBA courses (in which she failed to make any progress at all) had nothing to do with the fact that they were delivered in English, evidence which is impossible to reconcile with the statement in her 2 March 2020 letter.
Fifthly, some of her evidence (both oral and documentary) is inherently implausible if not incredulous while other aspects appear to have been tailored. Her evidence that Dr Gadhavi retained Patel to prepare the 13 February submission without her knowledge or consent in circumstances where she signed the document appointing Patel as her representative is an instance of this. Her evidence that Dr Gadhavi went ahead and enrolled her in the AHMI Management courses without having any instructions from her to do so is another.
Sixthly, the Tribunal must be cautious in accepting evidence from an applicant, such as this one, who is quite prepared to blame her education and migration agents and course providers for the situation in which she now finds herself without accepting any personal responsibility for what has taken place. In this case there is not a hint in her evidence, oral or documentary, that she has any real insight into what has led her into this predicament.
Seventhly, her readiness to disavow statements in documents which she has signed was counter-intuitive and does her no credit. For instance, her oral evidence that Dr Gadhavi wrote the 28 November 2019 letter (which she signed) without any input from her is incredulous and her evidence that she did not read it before she signed it is even more incredible.
Lastly, the applicant was ready to exaggerate and engage in hyperbole when it suited her. To describe AHMI as a “fraud” in her oral evidence is vindictive, completely unsubstantiated and impossible to reconcile with her recent conduct in enrolling in the two AHMI Management courses and/or with her oral evidence that she wanted to go ahead with one of them. Similarly, her assertion in the 28 November 2019 letter that she has “gradually progressed” towards a higher education since arriving here in July 2017 is for the most part wishful thinking and is otherwise insupportable given the unsatisfactory features of her academic record to date and the fact that she has recently enrolled in two further vocational courses at AHMI which on current indications would not be completed until April 2023, at the earliest.
For those reasons, the Tribunal in this case looks mainly to the independent documentary record as the source of evidence on which the Tribunal can safely act.
More particularly, the Tribunal does not accept that the applicant was misled by Dr Gadhavi and, indeed, is satisfied that she at all material times knew what she had to do in terms of the required level of her studies in order to comply with the relevant provisions of condition 8202.
Whilst the Tribunal has little difficulty in accepting that she came out to Australia to study at the Master’s level, the Tribunal is quite unable to accept her other assertions regarding what she has in fact achieved with her studies since moving to Sydney from Perth in or about September 2017. Her claims that she has been making steady progress since that time towards a higher education here simply does not accord with the objective features of the case, whatever allowance must be made for the fact that her enrolment in the Diploma of Nursing at AHMI came to an end after a significant period of study through no fault of her own.
The applicant was born in India in November 1992 and is thus 27 years of age. She married her husband in 2013 at about the time when she obtained the Bachelor of Commerce with a major in accounting at Kadi Sarva Vishwavidyalaya (KSV). She said in her evidence, and the Tribunal accepts, that she married against the wishes of her family there being inter-casting concerns, apparently.
As noted earlier, the applicant gave oral evidence to the effect that she worked as a Junior Accountant with a Tax Consultant for about 4 years, that is to say from 2013 to 2017, before arriving in Australia with her husband in July 2017 to undertake a higher education in accounting with a view to ultimately pursuing a career in that field with one of the big accounting firms. To that end she enrolled in the Master of Commerce at Curtin University but did not attend any classes in that course. She said in her evidence that her ELICOS results were not good enough but no documents to this effect have been provided to the Tribunal. Her letters to the Department would tend to indicate that her English speaking ability was quite good in 2017.
At or about the time her enrolment in the Master’s course at Curtin came to an end she began to have feelings of loneliness and isolation which led to her seeking medical treatment. There is a report from a general practitioner, namely a Dr Kamlesh Bhatt, of 8 September 2017 to this effect. Although she was advised by Dr Bhatt to see a Psychologist for further treatment, this does not seem to have occurred. Certainly there are no other medical reports in evidence and no suggestion from her that these issues had any ongoing effects on her capacity to study.
For reasons which on the evidence are not entirely clear, the applicant and her husband moved to Sydney in or about late 2017. The applicant shortly thereafter enrolled in the MBA at UBSS after, she said, numerous unsuccessful attempts were made to enrol in a Masters course at other Universities.
The Tribunal is prepared to accept that she was making an effort at that stage to maintain enrolment in a Masters course and finds that the reason for this is because she was in fact aware that the conditions on which her visa had been granted included the need for her to maintain enrolment at the required AQF level.
According to the Academic Transcript the First Semester for the MBA began on 15 January 2018 and ended on 27 April 2018. As noted earlier, the applicant achieved poor results in the 3 subjects attempted (30% in one, 17% in the other two) in this Semester. The applicant accepted in her oral evidence that her enrolment in this course came to an end for that reason on or about 23 May 2018 and PRISMS confirms as much.
In her 2 March 2020 letter the applicant states that her poor results in the MBA came about because of inadequate English skills but her oral evidence was to the effect that she had no problem with English in this course. The Tribunal prefers her oral evidence on this topic.
Although it may well be that Dr Gadhavi suggested to her that she undertake a vocational course after her enrolment in the MBA came to an end, the Tribunal does not accept her evidence that he misled her into thinking that to do so would not have any consequences. The applicant gave evidence that it was her decision to enrol in the Diploma of Nursing at AHMI which she did after consulting her family. The COE for this course, a copy of which is attached to the applicant’s letter of 28 November 2019, indicates that she was enrolled in this course on 1 June 2018 and that she began studies on 4 June 2018, this being the scheduled start date according to the COE.
Later, on 21 December 2018, at a time when she was about half way through the Diploma, she enrolled in a Graduate Diploma of Management (Learning) also at AHMI to commence on 1 June 2020, a date shortly after the Diploma was due to finish. There is another COE for this course attached to the 28 November letter and PRISMS confirms that she did in fact enrol in this other course on that date.
The applicant does not dispute in her letter of 2 March 2020 (and elsewhere) that these courses were no higher than level 8 in the AQF.
In her 28 November letter the applicant states in effect that her intention after she finished the Diploma was to undertake a Bachelor’s course and a Masters course in health care and that she had to that end made enquiries with Western Sydney University. Given that she had enrolled in the Graduate Diploma in December 2018, a course not due to finish until May 2022, the absence of any corroborating material and the fact that she had been unable to make any progress at the Masters level in her previous two attempts, the Tribunal is unable to accept her evidence that she had that intention or made those enquiries.
On 11 March 2019 AHMI formally notified the applicant by letter that the Diploma was to be discontinued with immediate effect and consequently that her enrolments in the Diploma and the Graduate Diploma would be cancelled. This appears to have come about because the Diploma was not an ANMAC accredited course. In any event, the data in the PRISMS record confirms that her enrolments in these courses were in fact cancelled on that date.
An outcome such as this would presumably have been disappointing for the applicant particularly at this stage of her academic path irrespective of whether she knew that the course might be withdrawn prematurely when she enrolled in it. There is certainly some documentary evidence from AHMI to the effect that she was in fact made aware of this possibility. But whether or not that was brought home to her in a timely fashion the fact is that the applicant had been studying for the Diploma for a period of almost 10 months at a cost to her of about $14,000 when the course was cancelled. There is evidence to this effect in the Patel submission and also oral evidence from the applicant to the same effect and the Tribunal has no difficulty in accepting it.
The Tribunal also accepts the applicant’s oral evidence that she had completed all of her assignments in this course despite having received, on 3 occasions, unsatisfactory attendance rate warnings from AHMI.
There is an AHMI Refund Request Form in the Department’s file which states that AHMI agreed to refund to the applicant a portion of the fees paid, namely the sum of about $9,675. A handwritten note on that form reads “Transfer $9675 to another course”.
On 17 March 2019 the applicant enrolled in the AHMI automotive package using those funds, or at least a portion of them, a package which on any view was completely unrelated to her previous studies, both at KSV and in Australia, her work experience in India and stated career goals.
The applicant said in one of her early letters to the Department in response to the first NOICC that she was depressed at the time and did not know what to do but, absent any medical reports or other evidence, the Tribunal is quite unable to accept these assertions. Moreover, this is not what she said in her 2 March 2020 letter in which she blames Dr Gadhavi and AHMI for completely misguiding her. Apart from these uncorroborated assertions, the applicant has provided to the Tribunal no acceptable explanation for this significant and, on the evidence, unreasonable change in academic direction. Why she did not seek enrolment in another nursing course at this stage, or some other course in the health-care field with another institution, is not explained.
Some progress was made in the CIII. The Academic Transcript for this course, a copy of which was attached to the Patel submission, confirms as much. Her oral evidence was to the effect that she only had 10 units left to complete when her enrolments in this AHMI automotive package, including the CIII, were cancelled on 14 February 2020 for non-payment of fees. As there is some objective evidence to support this, the Tribunal is prepared to accept it.
The applicant had been studying in the CIII for a period of about 11 months. In that time she received two warning letters from AHMI, the first in June 2019 for unsatisfactory attendance and progress and the second in August of that year for overdue fees of $675.These fees, so far as the evidence goes, were never paid. Again, no explanation for this has been provided to the Tribunal. In circumstances where the applicant enrolled in the AHMI Management courses at about the time her enrolments in the Automotive package were cancelled, courses which together would have required payment of tuition fees in the order of $34,200, the Tribunal can only infer that financial constraints played no part in the non-payment of the fees for the CIII. Certainly, there is no evidence from her to the effect that they did.
As noted earlier, the applicant has given evidence to the effect that her enrolments in the two AHMI Management courses were arranged by Dr Gadhavi without having obtained her instructions to do so.
The Tribunal does not accept that he made those arrangements without consulting her for two reasons. Firstly, even on the applicant’s own account, and there is some objective evidence to support this, he had obtained her authority to submit applications to enrol her in the Nursing course and those comprised in the AHMI automotive package. No acceptable reason has been advanced by her to explain why he would go ahead and enrol her in these Management courses without first doing what he had apparently done in connection with these earlier enrolments. The Tribunal does not accept her assertion, made in her 2 March 2020 letter, that he did so “just (to) earn money” without having any evidence as to what exactly he stood to gain, if anything. Secondly, the oral evidence which she gave regarding which of these Management courses she intended to undertake itself tends to undermine the proposition that he did this without consulting her. At first the applicant said that she intended to do the Diploma but not the Graduate Diploma but then almost immediately reversed this saying that she intended to do the Graduate Diploma but not the Diploma. When asked what course or courses she intended to complete in order to qualify for the Graduate Diploma the applicant said that she intended to complete the CIII and CIV, courses which together would take her about another 12 months to finish, before embarking on the 2 year Graduate course. This evidence sits awkwardly with her assertion that he acted without her authority in arranging enrolment in these Management courses. Certainly, she has not disavowed having a continuing interest in them, or one of them.
In the 2 March 2020 letter the applicant also asserts that she had been making attempts to obtain an offer for enrolment in a Master’s course, later described in the letter as a Master of Business Administration, so that she could comply with her visa condition. The Tribunal notes that the course provider is not identified in the letter, nor is there any documentary evidence on which to substantiate that she has in fact been doing her “level best” (her words) to secure enrolment in such a course in circumstances where her two previous attempts at study in the same or similar courses have been unsuccessful.
When asked what she intended to do once she completed the Graduate Diploma the applicant said that she would go back to India indicating that she had no desire to do a Master’s course at this stage This evidence is impossible to reconcile with the statements in the letter regarding her attempts to enrol in a Master’s course. The Tribunal does not accept that she has in fact taken any such steps in recent times.
In any event, what is clear is that the applicant has been unable to engage in productive studies at the Master’s level since arriving here in July 2017, now some 2 years and 9 months ago. Indeed, quite apart from the predominately vocational nature of her academic program, the fact is that she has been unable to complete any courses of study, vocational or otherwise, during that period. Allowance must be made for the fact that she was 9 months into a 2 year Nursing course at AHMI when it was discontinued but, instead of pursuing studies in that or a related field, she regressed into an automotive package, also at AHMI, which seems to have come from no-where and which would have led her into a field in which she had no interest. Furthermore, this automotive package would have taken her 2.5 years to complete, according to the COE’s. Bearing in mind her study and work history, and the expectations of her family, about which she has also given evidence, it looks to be nothing more than a waste of time.
The Tribunal infers that the eventual cancellation of her enrolments in this package for non-payment of fees in the CIII, after a period of about 11 months of study in that course, is probably best explained on the basis that she came to realise, shortly after her visa was cancelled in early December 2019, that it was not in her best forensic interests to remain in the automotive package and that her prospects in the Review would be enhanced if she enrolled in the AHMI Management courses.
The Tribunal does not accept her oral evidence that she intends to re-enrol in the CIII and CIV before going onto the Graduate Diploma. This undergraduate pathway would obviously be quite illogical, is inherently improbable when viewed in the context of what she has recently done and appears to be of little or no value to her future.
As is earlier noted, her enrolments in the Management courses at AHMI took place on 13 February 2020, some 6 days after the Hearing Invitation was sent to her. The timing of these enrolments is a factor of some significance in this case. The Tribunal finds that these enrolments have not only been obtained on her instructions and with her consent but they have been procured for the purpose of enhancing her eventual prospects in these proceedings rather than as a means of pursuing legitimate career goals.
Turning to the extent of the non-compliance, it is an admitted fact in this case that the applicant has been in breach of the AQF level requirement which attached to her visa since 24 May 2018, a period of about 1 year and 10 months. This, on any view, is an extensive breach. On the findings there is nothing in the circumstances which can be regarded as extenuating or which could be seen as ameliorating the effects of this breach. The Tribunal does not accept that others are to blame for the applicant’s present situation. Moreover, the applicant is now enrolled in vocational courses which, if she proceeds with them, will do nothing to cure the breach in the foreseeable future.
It is important for the Tribunal to recognise in a case such as this, and indeed at the end of the day it is in the Tribunal’s view a matter of considerable weight, that the TU 573 visa was granted to the applicant to enable her to obtain a higher academic qualification in Australia by enrolling in and completing a registered course at the required AQF level. It was not granted to her so that she could embark on a series of unrelated vocational courses of little or no academic or other utility or relevance to her stated career goals.

A curious aspect of this case is that the applicant informed the Department when applying for the visa that she wanted to pursue a career in accountancy and she endeavoured to lay the ground for that in the early stages of her academic program here. That said, her disparate academic choices during the period since May 2018 have been in clear breach of the condition and, to make matters worse, they have been totally unproductive. Considerable time has been lost if not wasted. The reality is that little if any real progress has been made by the applicant towards an educational outcome at the level for which the visa was granted.
Ultimately, the Tribunal in this case is left in a situation where it simply does not know what the applicant’s real academic intentions are in circumstances where the objective features of the case do nothing to assist her.
This is not the sort of case where allowances can be made for reasonable changes in direction and motives. The applicant is not an inexperienced student who can fairly be said to have made reasonable mistakes. To enrol in the automotive package was pure folly in these circumstances and for the applicant to tell the Tribunal at the hearing that she wanted to reinstate some of those courses did nothing to assist her. The Tribunal infers that this evidence was given so that she could distance herself from the fact that the management courses in which she is currently enrolled would be undertaken at AHMI, a course provider which (she says) has occasioned nothing but trouble.
Given the academic record of this applicant, her prospects of obtaining enrolment in a registered course at the Master’s level in Australia appear to the Tribunal to be problematical and her prospects of completing such a course can only be described as remote. This, in the overall circumstances of the case, is a very weighty if not overwhelming factor at the discretionary level.
The Tribunal accepts that the cancellation of the applicant’s Higher Sector visa will occasion some hardship to her and her husband and perhaps not a little disappointment to her parents but the applicant must ultimately take responsibility for this. She has given evidence to the effect that she has the full support of her husband and there is no reason for the Tribunal to find this will change as a result of the cancellation of her visa. Their marriage has obviously been strong enough to withstand familial tensions of some complexity and is likely, in the Tribunal’s assessment, to remain unaffected in the foreseeable future. Overall, the question of hardship is not a matter which can attract other than minimal weight.
The Tribunal also takes into account that her husband’s visa will remain cancelled by virtue of Sec 140 of the Act but again this factor is of very little weight in the overall circumstances of this case.
There are, or course, other legal consequences arising from the cancellation to which the delegate has referred in his decision but these too are of limited significance in this case.
The evidence does not suggest there are any relevant international obligations.
There are no other relevant matters.
Overall, the considerations set out above weigh heavily in favour of the Tribunal exercising its discretion to affirm the decision to cancel the applicant’s visa.
Considering the circumstances as a whole, the Tribunal thus concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the delegate’s decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

100. The Tribunal has no jurisdiction to review the cancellation of the second named applicant’s visa arising by virtue of Sec 140(1) of the Act.
Michael Bradford
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.

[2020] AATA 1054

16 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Breach