GAURAV (Migration)

[2018] AATA 5185

GAURAV (Migration) [2018] AATA 5185 (21 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaurav Gaurav

CASE NUMBER:  1620585

HOME AFFAIRS REFERENCE(S):           BCC2016/3310293

MEMBER:Stephen Conwell

DATE:21 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student Higher Education Sector (subclass 573) visa.

Statement made on 21 September 2018 at 2:34pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa–not enrolled in a registered course of study – breach of condition 8202– Decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 116,140, 359AA
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 November 2016 made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’ or ‘the Department’) to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course since 17 November 2015. The delegate went on to consider whether the visa should be cancelled and weighed the factors for and against before deciding to cancel the visa. 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 6 August 2018 to give evidence and present arguments. The Tribunal Hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant provided a copy of the delegate’s decision with his application for review.

5. Where used in this decision:

   ·       COE refers to Confirmation of Enrolment;

   ·       The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Did the applicant comply with Condition 8202?

   8.     Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·       be enrolled in a registered course, or in limited cases, a full-time course of study or training: 8202(2).

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

9. The applicant applied to the Tribunal for review of the decision and provided the Tribunal with a copy of the delegate’s decision.

10. The Tribunal notes that the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) because it appeared that the applicant was not enrolled in a registered course of study since 17 November 2015. The NOICC was issued nearly twelve months after the applicant had allegedly stopped being enrolled in a registered course. The delegate’s decision indicates that the applicant did not dispute this.

11. At hearing the applicant confirmed that he came to Australia in 2014 to study. Initially, he stated that he disagreed with the delegate’s finding that he had breached the condition.

    s.359AA

12. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant information from the Provider Registration and International Student Management System known as PRISMS. This information outlined that the applicant was not enrolled in a registered course of study. The Tribunal explained that:

    ·       this information is relevant to the review because, if relied upon it may lead the Tribunal to find that the applicant was not enrolled for a significant length of time and the ground for cancellation is made out;

    ·       if it relied on this information it would be the reason, or a part of the reason, for affirming the decision that is under review.

13. The applicant was informed that he could comment or otherwise respond to the information or that he may seek additional time to comment or respond to the information. The applicant confirmed that he understood the relevance of this information to the process. He did not elect to seek additional time and agreed to discuss the PRISMS information during the course of the hearing.

14. The applicant proceeded to explain the adverse information in PRISM. However, his explanation was limited, nonsensical and at times contradictory. He stated that he has evidence of his enrolment during this period on his mobile phone but could not satisfactorily explain why he had not provided this evidence to the Department or to the Tribunal in anticipation of the Hearing, nor was he able to provide it.

15. The Tribunal agreed to provide the applicant 7 days from the hearing to make further submissions and provide the relevant evidence. The applicant emailed a submission dated 9 August 2018 to the Tribunal. It stated:

    My name is Gaurav .My D.O.B is 05/07/1994. I am writing you in regards to my AAT case. I came to Australia in the year July 2014to study English course followed by the Diploma leading to Bachelor of IT. During first couple of months of my study, I came across many difficulties in my study I could not cope with the academic pressure so I decided to change my study into more practical study I choose Cert III in Painting and Decoration. There were moments when I felt stressed out as I was being constantly told by my friends that Della International college will be blacklisted soon ( Can check college required for evidence) and will be closed down by the authorities .Thinking about what my friends told me about my college, scared me too much and I started thinking about my future.

    Then, one day I thought of changing my college in order to come out of this situation, and concentrate on my study therefore I asked my college to issue me a release so that I can take admission in some other college. I tried my best to convince my college but they did not understand my situation and did not issue me a release. Instead of issuing me the release, my college reported me to Immigration and hence my student visa got cancelled for not enrolling in study but this was wrong information provided by my college I was actually already enrolled. I have Coe’s for that period but somehow immigration told me that I was not enrolled my college must have done something wrong because how can my enrolment is cancelled without even notifying me. This is what was happening back then with most of the student may be that is why college was under continuous watch by authorities.

    During this bad time I lost my sister which [became] another hurdle for me because I could not go to India for her last rites. This put me in depression that which I could never overcome. She was so close to me we grown up together since childhood. She was the only person with whom I could share my problems. Somehow I managed to fight with this whole but by then there was nothing in my hand.

    Now I am again enrolled in same course because I want to finish this course so that I can go back to India and follow my dream of painting and construction business. I want to make my parents proud by completing Australian study. I spend many years of my life to this.  If I did not get this visa to study I will not be able to get admission anywhere because of this gap. Especially back home it is very hard to get decent course after this many years of gap. This will ruin my life. My life and my dream [are] in your hands. Please allow me visa to start  my study.

    As all my reasons were genuine and true, therefore I lodged my appeal application and also in the meantime got enrolled in the same course in Australian Industrial systems Institute. I got enrolled in the same course because I always wanted to study and follow my dreams. I never wanted to leave my study in between in Della International College but I was really scared about my future when my friends told me about the blacklisting of my college.

    I am providing you the Old and new Coe’s as my evidence of enrolled study. Please let me know if you need further information.

    Regards
    Gaurav
    Date : 09/08/2018

16. He attached the following:

    a.   Confirmation of Health Cover from 2018 onwards;

    b.   enrolments at Della International College (‘Della College’)

    ·    COE for Certificate III in EAL from 26/01/15 to 5/04/15;

    ·    COE for Certificate III in Painting and Decorating course – from 25/05/15 to 6/11/16;

    c.   current enrolments at Kontea Pty Ltd t/as Australian Industrial Systems Institute (AIS Institute) –

    ·    COE for Certificate III in Painting and Decorating course – from 20/08/18 to 9/08/19;

    ·   COE for Diploma of Building and Construction – from 9/09/19 to 8/03/21 and a corresponding letter of offer.

17. Whilst the Tribunal accepts that the applicant had been issued with a Certificate of Enrolment (‘COE’) for the period which is the subject of the study gap, it does not confirm whether the applicant actually enrolled in, and remained enrolled in the course. According to his PRISM records, the applicant’s enrolment in the Painting and Decorating course at Della College was cancelled on 17/11/15 due to non-payment of fees, which led the delegate to find that the applicant was not enrolled in a registered course of study for more than 12 months since that date (‘study gap’).

18. On 16 August 2018 the Tribunal wrote to the applicant under Section 359(2) of the Migration Act, inviting him to provide, the following information in writing by 30 August 2018:

    1. Further information about whether you were enrolled in a registered course between 17 November 2015 and 28 November 2016. This may include, for example, certified academic transcripts of results from the aforementioned            period or similar evidence.

    2. Information to support why the visa should not be cancelled. This may include but  is  not limited to information about:

    ·    any circumstances in which the ground of cancellation arose;

    ·    whether you have a compelling need to remain in Australia;

    ·    your compliance with visa conditions generally, including any previous visas you have held;

    ·    the hardship that may be caused if the visa is cancelled on you or your family or anyone else connected to the visa;

    ·    any other matter you consider relevant.

19. On 21 August 2018, the applicant responded by email to the above letter, stating:

    Thank you for giving me chance to explain my situation to you.

    On my hearing with AAT on 06-08-2018 in [front] of Member S Conwell. I have explained my whole story to him and explained all the requested points by you.

    In my last email I have also attached proof of enrolment during that time. Now I will explain [to] you the GAP between November 2015 to November 2016 (sic).

    During that time I have requested my college to provide me release letter because they were under investigation ( Can be verified with department of education). I was scared that they were going to be blacklisted. After requesting many times they told me that they can not provide me release letter. I was stressed because already six months were gone. Now my college told me that I have to pay them fees for full course then they will provide me release letter which was against there(sic) fees policies. I was stuck as I had no option. I putting many appeals to director I came to know about that my COE is already cancelled from last 3 months. Now in the whole process I lost 11 months my college ruined my life. I want to put key points below.

    From 26-01-2015 to015-04-2015 I studied my [E]nglish course after that I was enrolled in Cert III in painting and decoration which was starting from 25-05-2015 to 06-11-2016.

    Now the key point here is that after 6 months on my painting study I requested release letter as per my rights but college refused it on purpose so that they can ask full fees from me till the end of the course. After requesting them many times for release I lost my precious time and money. At one stage they told me that if I can pay my half fees to them in then they will provide me release letter but again I lost my money nothing was done.

    I have done as much as I could have done but all my efforts were not seen and I lost my visa. My [humble] request to you is this that I just want to finish my study and go back to my home country. I have again [chosen] the same course because my only aim is to finish painting course. Please grant me the visa so that I can fulfill my dream. I am loosing(sic) precious time of my life without going anywhere.

    Thank you for your help for giving me chance to say all this. I am providing you all the documents of study during that time, some can only be checked through USI system as college have not given me any documents.

    Kind regards

    Gaurav

20. The applicant claims he left Della College to study at the AIS Institute. He was offered the opportunity prior to the Hearing, at Hearing and in subsequent requests post-Hearing, to submit further information; he has not done so.

21. The applicant’s visa was issued on the basis of his enrolment with Della College. It appears he sought to enrol with a new provider, AIS Institute. Other than a COE, he provided no further evidence of his enrolment over the course of the twelve months study gap that is in question.  The Tribunal acknowledges that the COE is evidence that the applicant did enrol in the course, however it is not evidence of his attendance at, and progress through, the course of study. Such evidence might have been his academic results and/or a current letter from AIS Institute confirming his enrolment during the period in question and evidence that he had informed the Department of Immigration of the change of course provider. The Tribunal is therefore not satisfied that the COE tendered by the applicant rebuts the delegate’s finding of the applicant’s twelve months study gap.

22. The applicant’s most recent letter of offer and COE from AIS Institute confirm to the Tribunal that the applicant had not been enrolled in the Certificate III in Painting and Decorating course over the period of his study gap, given that he now seeks to undertake the same course from 20 August 2018 to 19 August 2019.

23. The Tribunal also notes that in his response to the NOICC, the applicant accepts the fact of his study gap and seeks to explain this period of non-enrolment being due to the death of his cousin in India in September 2015.  The Tribunal notes that in his subsequent statement the applicant refers to his cousin as “his sister” and acknowledges that it is sometimes customary on the Indian sub-continent to refer to a close cousin as a “cousin-brother” or “cousin-sister”. He states: “as it was an unbearable loss for me I could not attend the college due to grief and stress.  Due to non-attendance of college the course provider cancelled my COE.”

24. In his oral evidence and subsequent statements submitted to the Tribunal the applicant offers a confused and inconsistent explanation to his written response to the NOICC. Contrary to this earlier statement, he has sought to persuade the Tribunal that he was enrolled over the period of his study gap but refers only to the COE for the relevant period; however as confirmed by the PRISMS records, this COE was cancelled on 17 November 2015. Despite being requested to provide further information, firstly by way of a general request by the Tribunal, then via s.359(2) letter, the applicant has been unable to offer any satisfactory evidence to support his claim.

25. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course from 17 November 2015 until 20 August 2018. Accordingly, the applicant has not complied with condition 8202(2).

26. On 28 August 2018, the Tribunal invited the review applicant to attend a second hearing.

    The Tribunal Second Hearing

27. The applicant appeared before the Tribunal on 13 September 2018 to give evidence and present arguments. The applicant confirmed that he understood the Tribunal procedure and that it was not necessary to explain it to him again.  He also confirmed that the references to his ‘sister’ in his written statements were to his cousin whose death had affected him.

28. The Tribunal reminded the applicant that at the first hearing he had eventually agreed that there was a ground for cancelling his Student visa. The Tribunal explained to the applicant that the main purpose of the second hearing is to address issues related to the Tribunal’s discretion as to whether the visa should be cancelled, having regard to all the relevant circumstances.

    Consideration of the discretion to cancel the visa

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

30. 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 Procedural instructions.

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

31. The applicant confirmed at hearing that his purpose in coming to and staying in Australia had been, and continues to be, for study. He stated that:

    ·       he wishes to remain onshore in order to finish his studies and then return to his home country.  For that reason he elected to re-enrol in his original study pathway – the Painting and Decorating certificate course, leading to the Diploma of Building and Construction;

    ·       he will not be able to get admission elsewhere because of this gap. in particular it would be difficult to enrol in ‘a decent course’ after his study gap. 

32. Having regard to the applicant’s evidence, the Tribunal accepts that the applicant travelled to Australia intending to study and also accepts that some hardship will be caused by the cancellation because the applicant will not be able to complete further study in Australia. However the Tribunal gives this evidence limited weight towards the visa not being cancelled.

    ·       The extent of compliance with visa conditions

33. The Tribunal noted to the applicant that the period of his breach of condition 8202 appeared a significant length of time. He pointed to the issues set out above and below. He said he believed he complied with other conditions on his visa.

34. There is nothing before the Tribunal to indicate that the applicant has not complied with other conditions, however the visa condition requiring a student visa-holder to have on-going enrolment in a registered course is of critical importance to this visa class; given the lengthy period of the breach of condition 8202, the Tribunal finds that it outweighs the applicant’s compliance with the other visa conditions

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

35. The Tribunal asked the applicant if he or others would suffer hardship if the visa were cancelled. His evidence is that the cancellation of his visa has caused him a great deal of stress and he has lost both time and money as a consequence. The Tribunal accepts that there may be some financial hardship to the applicant and his family if the visa remains cancelled. However, whilst the disappointment of a ‘lost opportunity’ and the financial cost attaching to it are to be expected and unfortunate, the applicant did not tender evidence of significant hardship, should his visa be cancelled. On balance the Tribunal is not satisfied that these would be significant hardships to him or his family however it gives some weight in favour of the visa not being cancelled.

    ·       Circumstances in which a ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.

    The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The applicant responded to the NOICC stating that he wanted to ‘gain skills of IT’ but he could not pass ELICOs, which “broke [his] confidence”.  After taking advice from several migration agents he moved from Queensland to Melbourne and enrolled in the Certificate III in Painting and Decorating.  He said he attended college but his cousin in India passed away in September 2015 which “took away all my concentration and left me grief-struck”. The applicant also stated that due to the loss of his cousin, “the whole family was upset and suffered a financial crisis.” He, in turn, could not attend college “due to grief and stress”, and the college cancelled his COE due to his non-attendance.

2. The applicant provided a different reason at hearing stating that it was a mistake and that he was enrolled at Della College but was worried about the future of the course provider so attempted to be released from them and enrolled in another college and maintained his enrolment with them. However Della College reported him to the Department, which he claims, was incorrect, as he was enrolled and attending school.

3. The Tribunal accepts the applicant’s evidence that he may have had some dispute with Della College, however it makes no finding on the nature and gravity of the disagreement. On the other hand, the Tribunal finds the applicant’s evidence regarding  his distress on learning of the death of his cousin in India to be unconvincing. The applicant tendered no medical evidence of his seeking counselling or medical attention in support of his claims to have been grief-struck”. The Tribunal It does not accept this evidence as a satisfactory explanation for the applicant’s significant study gap. The Tribunal considers the lengthy period of the breach to be significant and consequently gives more weight to cancelling the visa given the significance of the breach.

   ·       Past and present conduct of the visa holder towards the Department

4. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal accepts that nothing adverse is known about the applicant’s past and present conduct towards the Department.

   ·       if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

5. Not relevant.

   ·       whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

6. The applicant indicated that if the visa remained cancelled he would return to India, and therefore there is no indication that he would become unlawful or be subject to detention; therefore the Tribunal gives this factor no weight.

   ·       whether there would be consequential cancellations under s.140

7. Not relevant.

   ·       whether any international obligations would be breached as a result of the cancellation

8. There is nothing to suggest, and the applicant does not claim, that any international obligations would be breached as a result of the cancellation.

   ·       any other relevant matters

9. The Tribunal has considered the applicant’s oral and written submissions and his claim that that he has lost “precious time and money … and [his] only aim is to finish [the] painting course.”  Yet as noted by the delegate, the applicant was not enrolled in in a registered course of study at the time the NOICC was issued and remained non-enrolled at the time of decision.  The Tribunal observes that the applicant remained non-enrolled until the day after the initial hearing at which time he enrolled in Certificate III Painting and Decorating course and Diploma of Building and Construction.  The applicant tendered no evidence of any attempts to re-enrol in study between the period following the delegate’s decision and the date of his first hearing. 

10. The Tribunal gives these considerations some weight in favour of the visa not being cancelled.

11. The Tribunal has carefully considered the evidence before it in relation to whether the visa should or should not be cancelled.  The Tribunal gives greater weight to the circumstances surrounding the cancellation and the lengthy period of the breach (the study gap). Having weighed this against the other factors, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Student Higher Education Sector (subclass 573) visa.

    Stephen Conwell
    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.