Ghelani (Migration)

[2018] AATA 4260

Ghelani (Migration) [2018] AATA 4260 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chintan Vallabhdas Ghelani

CASE NUMBER:  1703969

HOME AFFAIRS REFERENCE(S):           BCC2017/221359

MEMBER:Jason Pennell

DATE:17 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made 17 September 2018 at 4.31pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – leave of absence – gambling habit – existing qualifications – enrolment requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 27 February 2017 made by a delegate of the Minister for Immigration and Border Protection 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 complied with a condition of 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 17 September 2018 to give evidence and present arguments.  

4.The applicant was represented in relation to the review by his registered migration agent.

5.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

6.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.

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 applicant claims that he is a citizen of the Republic of India. His evidence was that he was born on 11 January 1984 in Gujarat, India. He states that his father is a retired government administrator and his mother is a retired teacher. They both continue to live in Gujarat together with the applicant’s brother. The applicant attended and completed school at the Kendriya Vidyalaya (the central government school) in Gujarat. The applicant claims that after school he completed a Diploma of IT at Cormal College in London, UK. The Tribunal conducted an internet search but was not able to find any reference of a Cormal College in London. Nevertheless the Tribunal accepts the applicant’s evidence and finds that he completed a Diploma of IT as claimed.    

9.On 16 April 2014 the applicant was granted a student visa. He arrived in Australia on 8 September 2014 with the intention of studying for a Bachelor of Accounting at the Box Hill TAFE. However, as a result of having a lower IELTS score that applicant was required by the education provider to enrol in ELICOS, which he commenced and completed in December 2014. The applicant claims that his education provider unfairly determined that he had not completed the ELICOS to an acceptable standard and that it required him to enrol and complete a certificate IV course and the Diploma of Accounting before enrolling in a Bachelor of Accounting course. 

10.The applicant’s evidence was that he enrolled in a Diploma of Account in 2015. He said that he was very upset about not being able to enrol directly in the Bachelor of Accounting course. He also conceded to the Tribunal that he had not completed any of the subjects in which he had enrolled in 2015.[1] In or about July 2015 the applicant applied for a leave of absence from his studies. By a letter dated 30 July 2015 the education provider approved the applicant’s Leave of Absence based on the applicant’s health and personal issues on the following conditions:[2]

(a)that the applicant deposit $3000.00 towards his enrolment in his course for 2016

(b)that direct entry to the bachelor of Commerce is conditional on the applicant achieving a IELTS score of 6.0. That he would arrange to sit an ITELS test during his leave of absence and if he scores 5.5 his study plan would be revised to include the certificate IV and Diploma of Business in 2016 before commencing the bachelor of Business in 2017.

(c)the applicant to contact the education provider by 1 December 2015 to confirm his enrolment for 2016 and to provide his ITELS results.

[1] Box Hill TAFE Statement of Results dated 3 August 2015

[2] Letter dated 30 July 2015 Box Hill TAFE to the applicant; AAT File No1703969 f40.

11.The applicant’s evidence was that he did not comply with any of the conditions of his Leave of Absence.

12.The applicant claims that he applied for the Leave of Absence due to the fact that he was upset that he had not been able to enrol in the Bachelors course and also because he had a gambling habit. He says that he was receiving money from his parents which was to be applied toward his education but instead he was using to gamble at the local casino. The applicant provided a copy of his bank statement as evidence of his gambling issue.

13.The applicant returned to India on 16 August 2015 for a period of about 3 months, returning on 18 November 2015. The applicant’s evidence was that he did not gamble when he was in India but when he returned to Australia he fell into his old habits and resumed gambling at the casino.  The applicant did not provide any independent evidence that he had a gambling habit, including any psychological report or other medical report evidencing his condition. He said that he had not sought any professional help for his gambling. In fact his evidence was that he was not addicted by reason that he had not been tempted to gamble while he was home in India. As such, based on the applicants own evidence and the lack of any independent evidence in relation to his gambling behaviour, the Tribunal finds the applicant was not addicted to gambling. Nevertheless, on or about 14 September 2016 the applicant executed an Exclusion Order (Self Execution) from the casino.[3]

[3] Exclusion Order (Self Execution) dated 14 September 2016; BCC2017/221359 f32

14.The applicant did not enrol in any course in 2016.

15.The applicant was issued a notice of intention to consider cancellation (NOICC) on 31 January 2017. The NOICC invited the applicant to respond to the notice in writing.  On 6 February 2017 the applicant’s agent sought an extension of time in which to respond to the NOICC in full. On 7 February 2017, the Department responded to the applicants request and granted an extension of time to respond to the NOICC to 24 February 2017. The applicant failed to respond to the NOICC.

16.On 27 February 2017 the applicant’s visa was cancelled.

17.A copy of the Provider Registration and International Student Management System (PRISMS) in relation to the applicant’s enrolment in a registered course was provided to the Tribunal.[4] It shows that the applicant did not enrol in a registered course of study from 19 February 2016 until 7 February 2017. On 7 February 2017 the applicant was approved to study a Bachelor of Business at Stott’s College.[5]

[4] Provider Registration and International Student Management System (PRISMS) dated 30 July 2018; AAT File No1703969 f46.

[5] Letter dated 7 February 2017 Stott’s College to the applicant;  AAT File No1703969 f11.

18.In making its decision the Tribunal has considered the following documents provided by the applicant.

(a)MRT Submissions dated 21 February 2018;

(b)Box Hill TAFE letter dated 30 July 2015

(c)Copy of applicant Student Identification [card].

(d)Box Hill TAFE Statement of results dated 3 August 2017.

(e)Copy of applicants Republic of India [passport].

(f)Box Hill TAFE Certificate of Completion- English for General Purposes dated 12 December 2014.

(g)Submissions by Aneel Khowaja.

(h)Axis Bank Ltd Statement 1 April 2014 to 31 December 2016.

(i)Student Letter of Offer, Stott’s College dated 7 February 2017.

(j)Application for Self-Exclusion from Crown Casino dated 14 September 2016

Did the applicant comply with Condition 8202?

19.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).

20.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

21.Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

Applicants purpose of traveling and staying in Australia.

22.During the course of the hearing the applicant confirmed that his intended purpose was to remain in Australia and study for a Bachelor of Accounting.

23.The applicant’s movement records indicate that he was initially granted a (Temporary) (class TU) Higher Education Sector (subclass 573) on 16 June 2014 and arrived in Australia on 8 September 2014. The applicant completed the English for General Purpose’s course on 12 December 2014.

24.Relevantly, the PRISMS states that on 29 January 2015 the applicant enrolled in Certificate IV and Diploma of Accounting and deferred /suspended his enrolment on by a Leave of Absence on 31 July 2015.  The applicant was not otherwise enrolled in a registered course until 7 February 2017.

25.The Tribunal is satisfied that the applicant’s intention at the time of the visa application does not constitute a reason not to cancel his visa. The applicant did not maintain his enrolment in a registered course in accordance with his visa conditions. The applicant conceded that he had breached condition 8202(2)(a) by failing to be enrolled in a course from 19 February 2016 but says that it was by reason of the fact that he had suffered for a gambling issue.

26.The applicant was approved a new enrolment to study a bachelor of Business on 7 February 2017 to study at Stott’s College. While the Tribunal accepts that the applicant had suffered from a gambling habit and acknowledges that he has attempted to rectify his visa status, the Tribunal considers that he was only motivated to do so after he received the NOICC on 31 January 2017. As such, the Tribunal questions the applicant’s genuine intention to study and whether he would have enrolled in a registered and continued his studies if he had not been contacted by the department.

27.As such, the Tribunal places little weight on the applicant’s enrolment in February 2017. The applicant commenced his accounting studies in 2015 but failed to complete any of the subjects in either the certificate IV and Diploma courses.  The applicant took a Leave of Absence in July 2015 but failed to comply with any of the conditions upon which it was granted by his education provider. Finally, upon his return to Australia the applicant failed to enrol in a registered course in 2016 and only enrolled in a registered course in February 2017 after receiving the NOICC. As such the applicant remained in Australia without being enrolled in a registered course for approximately 12 months on a visa granted for the sole purpose of study.

28.The Tribunal, therefore, gives little weight to the applicant’s statement that the purpose of him traveling and staying in Australia was to study. 

Compliance with visa conditions

29.The applicant was not enrolled in a registered course from 19 February 2016 until 7 February 2017. That is the applicant remained in Australia without having complied with the conditions of his visa for a period of just less than 12 months. The Tribunal considers this period of non-compliance to be significant.

30.The applicant’s visa was cancelled on 27 February 2017.

31.The Tribunal considers that applicant’s non-compliance with his visa conditions is significant and as such gives little weight in favour of the applicant in considering this factor.

The degree of hardship that may be caused to the Applicant. 

32.Other than the fact that the applicant will suffer great embarrassment and shame in the eyes of his parents for having spent their money on gambling rather than his education, the applicant was not able to provide any other hardship he may suffer in the event that his visa is cancelled. The Tribunal concedes that the event his visa is cancelled he would be prevented from completing his studies here in Australia. As a result he will be delayed or even prevented from obtaining his education and potentially better employment on his return to India. However, the applicant has already completed a Diploma of IT in London. That is, he already holds a qualification that will most likely enable him to find better employment in his home country.    

33.The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

34.Nevertheless the Tribunal accepts that if the applicant’s visa is cancelled he will suffer some hardship by having to return India without a Bachelor of Accounting and as such has given some weight to hardship the applicant may suffer in the event that his visa is cancelled in making its decision.

The circumstances in which the grounds for cancellation arose

35.The applicant confirmed to the Tribunal that he was aware of the visa conditions. He claims that he breached the conditions of the visa as a result of his gambling habit and the fact that he was upset with the education provider for making him complete the Certificate IV and Diploma Course before enrolling in the Bachelors course.  

36.However, the applicant did not display any intention to enrol in a course until he received the NOICC. The applicants own evidence was that he had not complied with the conditions of his Leave of Absence and that he had made no attempt to enrol in a course in 2016. Despite the applicant’s claims that he had a gambling issue, his evidence was that he was not an addict. He did not gambling at all when he was at home in India. Rather, his evidence was that when he was in Australia he mixed with people who encouraged him to gamble. It appears therefore that his attendance at the casino was as a result of him socialising with a particular crowd rather than because of a psychological issue or addictive tendency.   As such, the applicant does not accept the applicant’s evidence that he is committed to completing his course in Australia.

37.Therefore, in circumstances where he was aware of his visa conditions, the conditions of his Leave of Absence and his failure to enrol in a registered course from 19 February 2016 until after the NOICC was issued, the Tribunal gives no weight to the applicant’s statement that he breached the conditions of the visa as a result of his gambling habit or that he was depressed and annoyed at having to complete the certificate IV and Diploma Course prior to enrolling in the Bachelors course.  

38.Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Past and present behaviour of the applicant

39.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

40.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

41.Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

42.The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

43.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

44.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Jason Pennell

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.