DHUNDHARA (Migration)

[2017] AATA 629

DHUNDHARA (Migration) [2017] AATA 629 (1 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PANKAJ DHUNDHARA

CASE NUMBER:  1616434

DIBP REFERENCE(S):  BCC2016/2487667

MEMBER:Magda Wysocka

DATE:1 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2017 at 9:16am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Applicant’s ceased studies and enrolment – Changed courses – Homesickness and isolation – Claims that Indian colleges restrict admissions to school leavers

LEGISLATION

Migration Act 1958, ss 48, 116(1)(b)

Migration Regulation 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that a ground for cancellation under s116(1)(b) of the Act existed because the applicant breached condition 8202 of his subclass 573 visa as he was not enrolled in a registered course. A copy of the delegate’s decision was provided by 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 28 April 2017 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. 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).

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

8. The decision record provided by the applicant to the tribunal indicates that the applicant was granted a subclass 573 visa on 11 June 2014. The decision also refers to PRISMS records indicating that on 15 May 2015 the applicant’s course provider, Western Sydney University reported the cancellation of the applicant’s enrolment in his course and he has not been enrolled in a registered course of study since that date.

9. Although the applicant stated at hearing that he was not informed by his course provider that his enrolment in a diploma of management was cancelled at the time and claimed to have been under the impression that he had completed his diploma of management, he has not provided any evidence to substantiate his claims and at the hearing conceded that his enrolment had been cancelled.  There is no evidence before the tribunal that the applicant was enrolled in a registered course of study at any time after 15 May 2015 up until his student visa was cancelled on 27 September 2016.

10. 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

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

13. The applicant did not provide a response to the department’s 9 September 2016 notice of intention to consider cancellation of his visa. The tribunal has considered the applicant’s evidence at the hearing before it below.

    The purpose of the visa holder’s travel to and stay in Australia

14. The applicant gave evidence that he arrived in Australia on 18 June 2014 to undertake a diploma in science and bachelor of science at the University of Western Sydney. He advised that he completed his final two years of high school in India in the ‘medical stream’ and that he wanted to embark on either further medical studies or agricultural science. However, he failed the exam to get into medical studies in India and chose to study science in Australia because Australian qualifications were highly regarded.

15. While the above evidence indicates that the applicant may have originally intended to travel to Australia for the purpose of studying science, his evidence to the tribunal is that he did not complete any qualifications during the more than two years he held a student visa in Australia. Furthermore, the applicant did not commence any of his science courses but moved from Sydney to Melbourne within a few days after arriving in Australia (for reasons discussed below). The applicant enrolled in a diploma of management in 2014 but has admitted to the tribunal that he did not attend classes for at least part of that course. Given these concerns, the tribunal does not consider that the applicant’s purpose to travel or stay in Australia is a factor which weighs in favour of not cancelling his visa.

16. Having considered the evidence before it, the tribunal does not consider that the applicant has any compelling need to remain in Australia. 

    The extent of compliance with visa conditions

17. The applicant was not enrolled in a registered course from 15 May 2015 until his visa was cancelled on 27 September 2016, a period of 16 months. The tribunal finds that the length of time for which the applicant was in breach of his visa conditions is a significant factor weighing in favour of cancellation of his visa. Moreover, the applicant advised that he had stopped attending classes some time prior to cancellation of his enrolment.

    The circumstances in which the ground for cancellation arose

18. The applicant has provided a number of reasons why he was not enrolled in a registered course. He claims that he stayed with family friends in Sydney after arriving in Australia but was disappointed because they drank every day and ate non-vegetarian food. He did not feel comfortable staying there and started feeling homesick. He had friends in Melbourne on student visas who encouraged him to come to study in Melbourne. He spoke to his parents, the family friend in Sydney and to the agent in India who arranged his studies and visa. All of these individuals told him that he can go to Melbourne if he wants.

19. After he arrived in Melbourne, the applicant went to ‘APEC’ migration agents who he claims ‘brainwashed’ him into getting enrolment in a diploma of management by telling him there was no future or further scope with a science degree and that management courses would allow him to apply for temporary and then permanent residence in Australia. Although the applicant advised that he did not intend to settle in Australia permanently, he took their advice because there is a lot of scope for management studies in India as well. He provided a statement about his homesickness and his new CoE to Western Sydney University who granted him a release letter and he started his management diploma at Della International in October/November 2014.   

20. The tribunal acknowledges that overseas students such as the applicant may experience feelings of homesickness and isolation but notes that course providers are well equipped to deal with such experiences and have a variety of resources at students’ disposal. The tribunal holds some concerns about the speed within which the applicant decided to leave his intended science studies (travelling to Melbourne five days after his arrival in Australia and before even starting his studies) and his decision to chance from science to management studies. In any event, the tribunal gives these circumstances very minimal weight in relation to the applicant’s lack of enrolment from 15 May 2015 until 27 September 2016 given that they refer to his circumstances in mid 2014. The applicant indicated in his evidence to the tribunal that he felt better after he arrived in Melbourne and was in the company of friends.

21. The applicant told the tribunal that after he started his diploma of management, he became a ‘careless guy’. He made more friends after four or five months of the diploma and became distracted from his path. His friends told him that he did not need to attend his classes all the time. The applicant asked his migration agent about this and she told him that if he did not want to attend his college, he just had to pay course fees and they will not check his attendance. The applicant stopped going to his classes. He claimed to the tribunal that he did ten written assignments for his course all at the same time in August 2015 and believed that he had finished his diploma, despite not having gone to classes and not having had any contact with his course provider.

22. The applicant also stated that around August 2015 a friend told him that he was making a mistake by not going to classes after which the applicant became scared and contacted his migration agent. His agent was ‘very relaxed’ and told him not to listen to anyone else and that he should continue doing whatever he is doing. He was impressed by his friends who were also careless, paying course fees but not going to school.

23. The tribunal has significant concerns about the applicant’s evidence regarding his course provider and advice he claims he was given by his migration agent. The tribunal has difficulty accepting that his migration agent would have advised him to continue not attending classes when he raised concerns with her about this. The applicant has also claimed that he paid his course fees to his agent, that he received his course assignments through his agent and that she had connections with his course provider, Della International. The applicant was questioned whether he made any complaints regarding his agents’ alleged behaviour to the appropriate authorities but he stated that he did not because he had no proof. The applicant has not provided any evidence to substantiate his claims. In the absence of any supporting evidence, the tribunal does not accept the applicant’s evidence regarding the behaviour of his migration agent. In any event, the tribunal does not accept that these are circumstances beyond the applicant’s control. Despite the applicant claiming that he trusted his migration agent, that he was only 20 years old and previously relied on his parents and had never faced such a situation before, it is the applicant’s responsibility to be aware of and abide by the conditions of his visa, an essential one of which is to maintain enrolment in a registered course. The applicant himself admitted that he was ‘careless’ and ‘distracted’ and agreed he was guilty. His evidence indicated that he was well aware that he was not abiding by the conditions of his visa given that his friend had warned him that he was making a big mistake by not studying. At the hearing, the applicant admitted that he was afraid of contacting the department because he feared that they would cancel his visa straight away.   

24. Although the applicant claims he wrote and submitted all his assignments in August 2015, the decision record provided by him to the tribunal indicates that his enrolment was cancelled on 15 May 2015. When this was put to him, the applicant stated that he was unaware that his visa had been cancelled because he never received a phone call or email from his course provider. In fact, he claimed to be under the impression that he had completed his diploma because he had submitted those assignments. The tribunal finds it difficult to accept that the applicant would have thought he had completed a qualification when he stopped attending classes, did not appear to have had any contact with his course provider and did not receive any evidence of completion of his course. The applicant has not provided any evidence of completion of his assignments in August 2015 and the tribunal does not accept that he completed and handed in assignments in August 2015, after his enrolment was cancelled in May 2015 or thought that he had successfully completed his diploma.

25. The applicant stated that, had he known that his enrolment had been cancelled in May 2015 he would have taken it seriously and changed his life but his migration agent did not tell him. Even if the applicant was not aware at the time that his course provider had cancelled his enrolment in May 2015, the tribunal gives little weight to his evidence that he would have become serious about studying or changed his lifestyle. As noted above, the applicant’s evidence to the tribunal indicates that he was aware that he was in breach of his visa conditions by not attending classes and that the department may cancel his student visa, but chose not to do anything about it for a significant period of time. The tribunal notes that the applicant took no action to enroll in studies after being sent a notice of intention to consider cancellation by the department. This gives rise to doubts as to whether he would have taken any action if he had known in May 2015 that his enrolment had been cancelled.

26. The applicant also advised that he fell ill in October 2015 and did not go to work for a month. He claimed it was an ear infection and that he had headaches but when asked he could not remember the name of his disease or condition. The applicant has not provided any evidence to substantiate his claim of being ill in October 2015. Given the applicant’s vague evidence about his condition and the lack of evidence, the tribunal does not accept that any illness or condition that affected the applicant in October 2015 was serious enough to prevent him from being enrolled.

27. The applicant advised that in December 2015 he went to Sydney for a month and gave $1000 to a friend who worked in a college to get admission in a diploma of management. However, his friend defrauded him, did not get him a CoE and refused to answer his calls. The applicant was unable to remember the name of the college and stated that he did not report this matter to the police or anyone else because, after discussing it with friends who told him he could not do anything without proof, he decided to let it go. Given the vague nature of the applicant’s evidence about this, the tribunal gives this factor limited weight.

28. The applicant stated that in early 2016 he approached his boss at the warehouse he was working in the hope that he would sponsor the applicant for a work visa but after waiting for a month and a half this offer fell through. The tribunal does not find this to be a circumstance beyond the applicant’s control that prevented him from studying and gives it no weight. Although the applicant claimed that he thought if he obtained his employer’s sponsorship he would not have to enroll in a course, the applicant held a student visa at this time for the main purpose of undertaking studies in Australia and was required to abide by the conditions on that visa.

29. The applicant also stated that he approached Della International in 2016 to study an advanced diploma in management. He claims that he approached them once after Easter 2016 and also stated that he approached them in the last week of August 2016, after receiving the department’s request to update his contact details. He claimed that he went to his college after Easter to ‘try his luck’ and get a CoE but stated that he did not in fact do so at any time, despite visiting the college on those two occasions. He told the tribunal he thought that if the department had not cancelled his visa until then, it would not matter if he got enrolled later. However, even after the department’s notice of intention, the applicant did not take any action to enroll in a course of study. The tribunal gives very little weight to these circumstances.

30. Having regard to the evidence before it, the tribunal does not consider the circumstances described by the applicant to have been beyond his control. Indeed, the applicant stated several times throughout the hearing that he was careless, guilty and made mistakes. The tribunal does not consider the circumstances that led to his visa breach to weigh in favour of setting aside the student visa cancellation.

    The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

31. The applicant stated that if he returns to India he will not be able to gain admission into any university because colleges in India do not allow admission to students who completed Year 12 more than one or two years prior to admission to university. He stated that he will definitely not get admission into a government college and if he does not get admission into a private college, he does not know what kind of job or future he will have. His whole future depends on this.

32. As put to the applicant at hearing, the tribunal is not aware of any prohibition on students gaining admission to Indian universities or colleges if they completed Year 12 more than two years earlier. The applicant has not provided any independent information to support this contention. He claimed that this was not government law but a university policy. The tribunal put to the applicant that information indicated there were over 200 state-run universities in India and 16,000 colleges providing vocational education.[1] The tribunal is not satisfied on the evidence before it that the applicant would be unable to gain admission in any university or college in India. The applicant argued that he will not have a future if he studied at those colleges and that an Australian degree gets you a good future.

    [1] Just Landed ‘India Guide: University’ >

    The applicant has not identified any other form of hardship he would face.

33. The tribunal is willing to accept that the applicant may suffer some degree of hardship resulting from the cancellation of his visa. However, it does not consider any degree of hardship that the applicant may face including as a result of difficulties obtaining admission in his education provider of choice in India, studying at Indian colleges or not having an Australian qualification to outweigh the factors identified in this decision that favour cancellation of his student visa. 

    The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

34. The applicant provided his updated contact details to the department in response to a request by the department on 22 August 2016. However, he did not provide a response to the department’s notice of intention to cancel his visa on 9 September 2016. The applicant stated that hearing that he did not check his email and only read the notice three days after the deadline for response, despite claiming that he knew that the department was likely to cancel his visa when they contacted him for his details. His friend who is a migration agent told him there was no point in responding after the deadline. The tribunal gives very limited weight to this factor.

    Whether there are mandatory legal consequences to a cancellation decision.

1. Cancellation of the applicant’s student visa will mean that he will be prevented from being granted some temporary visas, including visitor and student visas, for a period of three years by operation of condition 4013. The applicant will also be prohibited from applying for many permanent visas onshore by virtue of s. 48 of the Act.

2. The applicant currently holds a bridging visa and, if his student visa is cancelled, can remain lawfully in Australia until his bridging visa expires. He would become subject to detention if he remained in Australia unlawfully. There is nothing to suggest that any detention in such a hypothetical situation would be indefinite.

3. The tribunal finds that the above are the intended legal consequences of visa cancellation and gives them limited weight.

   Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

4. Having regard to the applicant’s evidence, this is not a relevant consideration.

   Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

5. This is not relevant.

   Any other relevant matters.

6. The applicant stated that he wants his student visa back to continue his management studies even just for a year, so that he can at least complete his diploma of management. He is sorry for his mistakes and promised to abide by all regulations if his cancellation was set aside.

7. The tribunal has considered the applicant’s statements regarding his future intentions but finds that any promises to abide by visa conditions and regulations in the future and any other factors in favour of reinstating the applicant’s student visa are significantly outweighed by other factors discussed in this decision including the significant extent of the applicant’s visa breach and the tribunal’s assessment of the circumstances that led to the visa breach.

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

   DECISION

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

   Magda Wysocka
   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.