Golan (Migration)

[2019] AATA 1905

Golan (Migration) [2019] AATA 1905 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankit Golan

CASE NUMBER:  1701741

HOME AFFAIRS REFERENCE(S):           BCC2016/4329592

MEMBER:Mr S Norman

DATE:28 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2019 at 11:00am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – injury to right hand – worked at car wash during injury period – significant breach – subsequent attempt in enrol in Advanced Diploma course – not a registered course of study – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 January 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was found to have breached condition 8202(2)(a) – enrolment. 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 25 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review by his registered migration agent.

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. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 24 June 2014 (stay period to 30 August 2017). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 11 January 2017, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS), indicated he had not been enrolled in a registered course of study since 23 February 2016. Therefore the applicant appeared to have breached condition 8202(2)(a); and his visa may be cancelled under s.116(1)(b) of the Act.

8. In their response to the NOICC, the applicant did not agree there were grounds to cancel his visa. At hearing, the Tribunal may have inadvertently indicated the applicant had (initially) agreed there were grounds to cancel his visa but that he was suggesting the Tribunal should not exercise its discretion to cancel. Be that as it may, and though discussed at hearing, the applicant did not dispute that he had failed to be enrolled in a registered course of study for some 11 months at the time the NOICC was issued. As discussed below, the applicant did have one period of deferral from his studies that finished on 11 April 2016. But even taking this into account, this would still mean he had failed to maintain enrolment in a registered course of study for some nine months at the time the NOICC was issued.

9. 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

10. 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’.

11. Regarding the purpose of the applicant’s travel to and stay in Australia, at hearing he explained that he proposed to study a Bachelor of Business. However, and in part due to an injury (discussed below), the applicant failed to maintain his enrolment in a registered course of study and he advised at hearing, that he ceased studying in mid-2016. He also only sought enrolment in further study (an Advanced Diploma of Business), after his Student visa was cancelled. The applicant said he now wished to continue studying in Australia. However, and for the purposes of this decision, the Tribunal proposes to accept the applicant’s intention when he initially travelled to Australia, was for the purposes of study.

12. Regarding the extent of compliance with his visa conditions, the applicant had not been enrolled in a registered course of study for approximately (at least) nine months at the date the NOICC was issued. After considering all the findings herein, the Tribunal believes this breach to have been significant.

13. Regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, at hearing he explained that his family wanted him to continue his studies in Australia and they would be disappointed if he could not do so. The applicant also explained that while some education opportunities in India may be as good as those that may be available in Australia, he would have better job prospects if he completed further tertiary education in Australia.

14. At hearing the Tribunal noted that country information it had considered indicated that India has one of the fastest growing large economies in the world.[1] Also, that regarding education the country information stated:  

    India’s higher education system stands third in size in the world after the US and China with nearly 26 million students in over 45,000 institutions in the country. In the last decade the country has witnessed a particularly high growth rate in student enrolment at a CAGR of 10.8% and institutions at 9%. …  

    Indian higher education has been progressing at a fast pace adding over 20,000 colleges and about 8 million students between the ten year period 2001 - 2011. As of 2011, Indian higher education system is spread over 42 central universities, 275 state universities, 130 deemed universities and 90 private universities. … [2]

    [1] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Economic Overview’, p.8.

    [2] ‘HIGHER EDUCATION IN INDIA - Access, Equity, Quality’,  Obadya Ray Shaguri - EAN World Congress Scholar 2013, accessed 27 February 2019.

15. When discussed, the applicant said that his father was a farmer in Haryana State and his younger sister was studying to be a dentist at university in India. He also said he may be able to pursue tertiary studies in India, but he still believed that he would have better job prospects in India, if he could complete a Bachelor’s degree in Australia. He also said that even if he studied in India, there were no guarantees he could obtain work.

16. However, based on the country information considered, the Tribunal is satisfied the applicant should be able to obtain tertiary education (as has his younger sister); and also obtain work commensurate with his skills in India (presuming he does not intend to take over the running of his father’s farm – which business had apparently assisted his sister to attend University in India, and which business had partially funded the applicant in Australia).

17. Next, shortly prior to the Tribunal hearing, the applicant had lodged inter alia a:

    ·     COE for an Advanced Diploma of Business, AAAR Institute of Business and Technology: course start date 20/04/2018 – course end date 20/10/2019[3]

    [3] Tribunal – folio 30.

18. The applicant did not provide any evidence of his progress at this course. However, at hearing he suggested he would finish this course in or around October 2019; and the Tribunal proposes to accept his progress is adequate.

19. The delegate noted that at the time of their decision (30 January 2017), there was no record of the applicant having attended any course of study since 26 September 2015. At hearing the Tribunal referred to the applicant having been granted a Higher Education Student visa, and this commonly required he be enrolled in a Bachelor’s degree or above. Further, and as noted earlier, he (only) applied for the Advanced Diploma course after his Student visa was cancelled. Based on the Tribunal’s own experience, students whose Student visa had been cancelled, are commonly able to obtain enrolment in a registered course of study prior to the Tribunal hearing. The applicant then said he had asked three or four colleges (though no corroborating evidence was provided), and he was only able to secure enrolment for the aforementioned Advanced Diploma course. He said he was told that if he passed the Advanced Diploma course, he may be eligible for enrolment in a Bachelor’s degree. His migration agent also said (words to the effect) that in their experience it may be difficult but not impossible to secure enrolment in a Degree course after an applicant’s Student visa was cancelled.   

20. As stated above, the Tribunal proposes to accept the applicant may have maintained adequate progress in the Advanced Diploma course (which commenced in April 2018).  However, the Tribunal is not satisfied it was a registered course of study for the purposes of the Higher Education Student visa the applicant had been granted; that he had only claimed to have enrolled in that Advanced Diploma course after his Student visa was cancelled on 30 January 2017 (being approximately 6-8 months after he ceased all studies – assuming the applicant had engaged in some study until early to mid-2016), and he then did not commence to study the Advanced Diploma until April 2018 (being approximately 14 months after his Student visa was cancelled). Further, and in the present Tribunal’s experience, though it may sometimes have been difficult, numerous applicants have appeared before me who had been able to enrol in a (ie) Bachelors degree after their Student visa was cancelled. That being said, while I accept the applicant may not be able to complete his Advanced Diploma if his visa is cancelled, notwithstanding his assertions to the contrary, his belated attempt to study the Advanced Diplomas has not satisfied the Tribunal the applicant now intends to complete a Bachelor’s degree in Australia.

21. However, and after considering all the accepted evidence, the Tribunal presumes and now proposes to accept, that the applicant or his family, may suffer some limited hardship if his visa is cancelled.

22. Regarding the circumstances in which the ground of cancellation arose, it was claimed that on 13 September 2014 the applicant injured his right hand and required 42 stitches (the applicant had been eating at a restaurant at the time). He said he had undergone multiple therapy sessions in the following months, however, he discontinued therapy sessions because Medibank did not cover same and he had been unable to afford further therapy. This gave rise to further pain and discomfort in the latter part of 2015 and continuing into 2016. Shortly prior to the Tribunal hearing, the applicant had lodged inter alia:  

    ·     A medical report from Liverpool Health Service, printed on 16/01/2017 - which referred to surgery for a ‘laceration’[4]

    [4] Tribunal – folio 29.

23. It was also noted the applicant had completed his Certificate IV in business in June 2015, though he was suffering discomfort and allegedly was unable to concentrate on his studies. Shortly prior to the Tribunal hearing, the applicant lodged:

    ·     An award for a Certificate IV in Business from MEGA (Macquarie Education Group Australia P/L) dated 19 June 2015[5] 

    [5] Tribunal – folio 26.

24. It was also claimed the applicant had said he was not issued warning letters by his College about his failing academic requirements and neither did they provide him with support and counselling regarding his studies. However, when discussed at hearing, the applicant conceded that he had been advised it was ‘intended’ to cancel his COE (in 2016); and that he had ceased studying at that time. Further, the Tribunal said that as a Student visa holder I may find (and now do find), that he would have understood the need to continue to engage in studies in Australia. The applicant had then referred to his reasons for failing to study (which are discussed herein).

25. The Tribunal noted the applicant was granted a deferral for medical reasons from 6 July 2015 to 18 December 2015, and this was some nine months after his September 2014 accident. He was also granted a further extension (or deferral) from 11 January 2016 to 11 April 2016 due to his ongoing medical issues (being the pain in his hand). He had also been required to do an English gap course prior to continuing his enrolment in the VET course in the October 2015 intake. When discussed at hearing, the applicant said he had attempted to study after April 2016, but he had some problems funding further studies (though this was remedied as his family had provided him with money and he also had resided for some time with an uncle in Australia). He had then commenced to study (around April 2016), but due to the ongoing pain in his hand (which was exacerbated when the applicant walked), he ceased all studies after 4-6 weeks.

26. The applicant had also said he had returned to India in late 2016 to seek assistance for his injury and ongoing pain issues. He obtained some medications which he then used to relieve the pain and discomfort (at hearing he said it was for two weeks at the end of December 2016 – and he also received some medicines from India after this date).

27. That being said, at the commencement of the hearing the Tribunal advised the applicant that it may put things to him during the course of the hearing that (words to the effect) contradicted his claims, but that it was ‘OK to say that I am wrong’. Further, when then questioning the applicant about the following and advising him his responses may be important to his case (and his responses were repeated to him to ensure the Tribunal understood what he had said), the Tribunal had put to the applicant that it understood he said he had worked consistently in Australia since arriving; from July 2014 to March 2018 in a car wash; and from March 2018 to May 2018, driving trucks. He confirmed that his work had been consistent, though in the period July 2014 to March 2018, he may have only worked 15-20 hours per week. The applicant had agreed this was correct.

28. Later in the hearing, at which time the Tribunal put to him it may not accept his injury was the reason he failed to maintain his enrolment in a registered course of study up to the time his Student visa was cancelled (on 30 January 2017), given he had been able to work consistently in a car wash for the abovementioned period (ie being July 2014 to March 2018), he said that he may have only worked 3-4 hours per day and sometimes only two days per week. He also said that sometimes he only worked 3-4 shifts per month at the car wash, as his hand was still sore and his doctor had advised him that full recovery may take 2 ½ years. At the end of the hearing, his migration agent also said the applicant may not have understood the importance of the Tribunal’s questions at the commencement of the hearing.

29. The Tribunal may accept the applicant had not worked, or had worked reduced hours in the one or two months immediately after he suffered his injury in September 2014. However, the Tribunal had invited the applicant to correct the Tribunal if it was wrong; had put him on notice that the information about his work history in Australia may be ‘important’ to his case; and I had repeated his evidence to ensure that I understood what was being said; and the applicant had agreed with the Tribunal’s statement about his work history (at least at the commencement of the hearing). In the circumstances, the Tribunal rejects the applicant’s subsequent and inconsistent evidence about his work history in Australia as false. I am satisfied he was able to work in Australia consistently, and though he did suffer the cut to his hand (after which he may have worked (ie) reduced hours for one or two months), and for which he was provided some  periods of deferment from his studies in Australia, the Tribunal is not satisfied the injury explains or justifies his failure to maintain enrolment in a registered course of study for the periods identified (not including the periods of deferment).  

30. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

31. Next, and regarding whether there would be any consequential cancellations if the applicant’s Student visa is cancelled, at hearing the applicant advised that he resided with an uncle (who was in Australia on an independently held Temporary Business visa), and he had another uncle who resided in Port Macquarie. However, the Tribunal has no evidence that any other persons’ visa would or may be cancelled if the applicant’s visa is cancelled. Further, after considering all the accepted evidence herein, the Tribunal is not satisfied there is any compelling reason the applicant would need to travel to or remain in Australia.

32. Next, if the applicant’s visa is cancelled, he would become and unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, he had returned to India previously, and the Tribunal is not satisfied there is any material reason he would be subject to indefinite detention. Further, I am satisfied he could temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

33. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

34. Next, during the course of the hearing the Tribunal understood the applicant had said that he might consider eventually applying for a Temporary Business visa after completing his studies (at least one uncle was already residing in Australia on a Temporary Business visa). Later in the hearing he said he wanted to complete his studies and return to India to find work. The Tribunal had put to him that considering applying for a Temporary Business visa while holding a Student visa was ‘not necessarily fatal to his case’, however, the fact he had apparently changed his evidence about this may cause the Tribunal to consider whether it accepted he was credible. The applicant’s agent said this confusion or inconsistency may have been due to the applicant misunderstanding the question that had been put to him initially. The Tribunal is uncertain about this explanation, however, I am also not satisfied there are sufficient grounds to draw any adverse inference from this.

1. Next, the migration agent said (words to the effect) the applicant was a young man who may have made a mistake and now he wishes to study. However, and as stated at hearing, the purposes of the Student visa program is to allow non-citizens to travel to Australia for the purposes of study. When a Student visa holder fails to meet material criteria, that not only constitutes a breach of the conditions of the Student visa, but might even preclude other non-citizens from travelling to Australia to fill that study position.

2. Finally, the Tribunal accepts the applicant has made a late attempt to study in Australia (though not in a registered course appropriate to the Higher Education Student visa he was granted). However, given his failure to maintain enrolment in an appropriate course of study for many months, given his current failure to be enrolled in a registered course of study appropriate to the Higher Education Student visa he had been granted, and given the Tribunal does not accept the applicant’s injury explains his ongoing failure to maintain enrolment in a registered course of study, the Tribunal is satisfied that his Student visa should be cancelled.

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

   DECISION

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

   Mr S Norman 
   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.