Gourav Kumar (Migration)

[2019] AATA 6628

Gourav Kumar (Migration) [2019] AATA 6628 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Gourav Kumar

CASE NUMBER:  1928521

HOME AFFAIRS REFERENCE(S):         BCC2019/3200397

MEMBER:Dominic Triaca

DATE:18 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 December 2019 at 12:56pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – circumstances of the breach – relied on advice of education agent – responsibility of visa holder – reasonableness of conduct – continued study throughout period of breach – re-enrolled at the appropriate level – genuine intention to study – responsibility of education provider – Standard 8 and 9 of the National Code 2018 – compelling reasons – decision under review set aside

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 3 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.The Applicant’s student visa was granted on 3 December 2018 with an original expiry date of 13 October 2021 providing for approximately 2 years and 10 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3.The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

4.The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5.By letter dated 16 August 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation. On 30 August 2019 the applicant responded to the Department in writing.

6.The applicant appeared before the Tribunal on 17 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. He filed a detailed statutory declaration in support of the application.

7.The applicant was represented in relation to the review by his Solicitor and registered migration agent, Mrs Zeeshan of Migration Advisory Services.  

8.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

9.The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

10.Condition 8202(2)(b) of the Applicant’s visa requires that the Applicant maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. The Australian Qualifications Framework (‘AQF’) is the measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. AQF Level 1 (Certificate I) has the lowest complexity and AQF Level 10 (Doctoral Degree) has the highest complexity. The AQF is administered by the Department of Education and Training.[1]­

[1] See generally < applicant is a 25 year old citizen of India. He arrived in Australia in 2015. He completed a Diploma of Business on 1 June 2017 at the Australis Institute. He commenced an Advanced Diploma of Business in July 2017 and completed that course on 8 July 2018. On 29 August 2018 he applied for an extension of his student visa and enrolled in a Bachelor of Accounting at Universal Business School in Sydney (UBSS). He commenced that course on 27 August 2018 and was to complete on 13 August 2021. His visa was granted on 3 December 2018.

12.The applicant experienced difficulties in late 2018, and in February 2019 he enrolled in a Certificate IV in Marketing and Communications. The circumstances of the applicant’s change of course are discussed below. On 19 February 2019, the applicant’s CoE was cancelled by UBSS. He has subsequently enrolled in and commenced studying a Bachelor of Business (Accounting) at Polytechnic Institute of Australia. The enrolment in the Bachelor’s course at Polytechnic effectively returned the Applicant’s enrolment status as including an AQF Level 7 course.

13.The delegate’s findings in this respect were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[2] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

[2] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

14.The Department of Home Affairs wrote to the Applicant by letter dated 16 August  2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

15.The Applicant responded to the NOICC on 30  August 2019. He did not dispute that he had breached condition 8202 of his visa.

16.In his evidence before the Tribunal he confirmed that he was not enrolled in an AQF level 7 course between February 2019 and October 2019 and admitted that he was in breach of the condition 8202(2)(b) of his student visa a period of approximately 8 months.

17.Accordingly, it seems reasonably clear that the delegate was correct in reaching the conclusion that the Applicant had been in breach of his visa for the period of time identified.

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

Consideration of the discretion to cancel the visa

19.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.’

20.The applicant‘s evidence was that his first years in Australia were reasonably productive. He successfully completed two courses being a Diploma of Business and an Advanced Diploma of Business. In 2018 the applicant was granted a further student visa to enable him to study a Bachelor of Accounting at UBSS. He commenced studying that course in August 2018.

21.The issue before the Tribunal is that in February 2019, the applicant downgraded his studies from a Bachelor level course to a Certificate IV in Marketing and Communications. This is a problem because the downgrading of his studies, and the subsequent cancellation of his CoE in the Bachelor’s course, is a breach of his student visa which required him to maintain enrolment in an AQF level 7 course.

22.The applicant states that the circumstances of the breach are as follows.

23.He commenced studying the Bachelor of Accounting course at UBSS in August 2018.

24.In September 2018, his first cousin died in India. He was close to his cousin and this affected him. He continued to attend classes but he was struggling to keep up with his studies and concerned about the forthcoming exams.

25.He sought assistance from the UBSS lecturers and explained he was having difficulties studying. He says that they advised him to prepare for his exams and assignments but did not discuss with him options such as deferral of his studies.

26.We now come to a critical junction. The applicant was concerned about his progress and unsatisfied with the responses of UBSS staff, he engaged the services of an education agent, Stampford (Australia) Pty Ltd (the agent). He states that after discussing his difficulties with the agent, he was advised to enrol in a Certificate IV course. The applicant followed this advice.

27.The applicant states that he was never advised by the agent that the enrolment in a lower level course was a breach of the requirements of his student visa. He says he would not have enrolled in this course had he been properly advised.

28.He continued to study the Certificate IV course until he received the NOICC in August 2019. At that time he engaged the services of his current migration agent, obtained further advice and enrolled in the Bachelor of Business (Accounting) course at Polytechnic. He has since commenced studying that course. He reports that he has successfully completed the first mid term exams.

29.Whilst the Tribunal considers that, ultimately, it is the responsibility of the student to be aware of his own visa conditions. It also notes that the applicant’s conduct appears to have been reasonable in these circumstances in the sense that he has acted in a manner that one would expect from a student on a student visa. In the first instance he has engaged with the education provider. In the second he has sought assistance from an education agent. In all the circumstances, it seems reasonable for him to have followed the advice he received at the time.

30.It is also in his favour that he continued to study throughout the period of the breach, albeit at a lower level, and upon receipt of the NOICC and further advice, he re-enrolled at an appropriate level and is now studying at that level. Whilst re-enrolling in a Bachelor Degree does not ameliorate the breach, it does indicate a genuineness of intention.

31.Furthermore, the applicant, having enrolled in the Bachelor of Business (Accounting) has paid approximately $7,000 AUD toward that course and this is confirmed in the Confirmation of Enrolment. The Tribunal considers that this is indicative of a genuine intention to study. It also notes that the total cost of the course is approximately $33,000 and the applicant states he has made arrangements with his family in India to pay his course fees for the duration of the course.

32.Having regard to the completion of his earlier studies, the Tribunal considers that the applicant’s purpose upon arrival in Australia was studying. Further, in light of his continued studying throughout his time in Australia, including the present, the Tribunal is satisfied that studying continues to be his purpose of being in Australia.

Submissions on behalf of the Applicant.

33.Mrs Zeeshman made submissions on behalf of the applicant and I will briefly address the matters raised by her in her written and oral submissions.

34.The delegate of the Department placed weight on the fact that at the time of the breach, the applicant would have had access to the resources offered by the education provider to assist him to study his intended AQF 7 level course. There is no evidence to indicate that the visa holder availed himself of these options. The thrust of the applicant’s submission is that whilst he attempted to engage with his education provider, he was not offered any real assistance.

35.Mrs Zeeshman submitted that at the relevant time, UBSS was bound by the National Code 2018 (the code), in particular Standard 8 and 9. The standards require, amongst other things, which requires that a student be given an internal review process of at least 20 days prior to the cancellation of the CoE and that the student have the opportunity to complete the internal appeals process prior to the cancellation of the CoE and requires that the student course progress be monitored regularly, and intervention strategies be implemented.

36.Her submission follows, that the applicant was not afforded a review process or any right of appeal by UBSS before the cancellation of his CoE. Further, he was not provided any intervention strategies to assist him with the course progress at UBSS, as required by Standard 8 of the code.

37.I have considered the submissions. Whilst it is not strictly necessary for me to reach a concluded view on these matters, as the submissions were made in some detail, I consider that they should be addressed as follows.

38.I do not consider that the applicant was prejudiced by the failure of UBSS to follow standard 8, to the effect that he was not afforded an appeal process. The cancellation of the applicant’s CoE by UBSS followed the applicant applying for and accepting an enrolment in the Certificate IV course. It seems to me that the applicant had voluntarily applied for that course, on advice, and was determined to do so at the relevant time. The fact that he may have received poor advice is not due to the UBSS.

39.However, I consider that UBSS may have breached standard 9 as it does not appear that the applicant‘s progress was monitored and any intervention strategies implemented, and this may have adversely effected the applicant.

Further matters

40.The applicant states if his visa remains cancelled, he will suffer hardship, including returning to India without completing his degree will adversely affect his chances of gaining employment in commerce related industries. He stated that his family in India have expectations of him successfully obtaining an Australian qualification. A decision to cancel his visa will create significant disappointment for him and his family.

41.The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

42.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.

43.The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of Sri Lanka and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

44.Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

45.Having regard to all the evidence, the Tribunal considers that the applicant has advanced compelling reasons to remain in Australia and finish his studies. He has demonstrated a willingness and ability to study in Australia over a reasonable period of time, completing two courses. When he struggled academically he sought to engage with the institution and the advice of an education agent. He did study throughout the period of the breach, albeit at a lower level. Upon receiving appropriate advice, he re-enrolled at the correct level and is currently studying at a Bachelor level course. He has paid considerable amount of fees towards this course and this indicates a genuine intention to study in Australia.

46.Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

47.The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

D Triaca
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.