Jada (Migration)

[2018] AATA 4923

Jada (Migration) [2018] AATA 4923 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajesh Jada

CASE NUMBER:  1721764

DIBP REFERENCE(S):  BCC2017/2545757

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          2 August 2018 at 12:00 pm (QLD time)

DATE OF WRITTEN RECORD:                23 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 23 October 2018 at 5:07pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – failure to complete courses – previous student visa breach – unsatisfactory attendance – authenticity of diploma certificate – education provider registration cancelled – non-payment of fees – defrauded – large amount of debt – depressed and homesick – intention to remain permanently – decision under review affirmed

LEGISLATION

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

APPLICATION FOR REVIEW

1. This is an application for a review of a decision dated 11 September 2017 made by the delegate of the Minister for Immigration to cancel the applicant's subclass 500 visa under section 116 of the Migration Act 1958 (the Act).

2. At the hearing on 2 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The delegate cancelled the visa on that basis that the applicant had breached the condition of his visa to be enrolled in a registered course.  The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 2 August 2018 to give evidence and present argument.

   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. If the applicant has breached that condition, under section 116 of the Act the visa may be cancelled.

   Did the Applicant Comply with Condition 8202?

6. Condition 8202 as it applies in this case requires students to remain enrolled in a registered course.  The delegate found that the applicant had not been enrolled in a registered course since his enrolment in a Master of Business Administration was cancelled on 16 November 2016 for non-payment of fees. 

7. The applicant has conceded that this is the case, and the Tribunal accepts that the applicant has not enrolled in a registered course from that date.  On the evidence before the Tribunal the applicant was not enrolled in a registered course.  Accordingly the applicant has not complied with condition 8202.

   Consideration of the Discretion to Cancel the Visa

8. Having found that the applicant had not complied with the conditions of the visa, the Tribunal must consider whether to exercise its discretion to affirm this decision to cancel the visa.  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 the matters raised by the applicant as to why the visa should not be cancelled.  The Tribunal has also had regard to government policy guidelines contained in the Department's Procedures Advice Manual. 

9. When the applicant arrived in Australia in August 2014 he was enrolled in an English program, to be followed by a Master of Information Technology.  He did not commence the first two English language courses because he said that there were problems with the starting dates, and so he eventually commenced a course in October 2014 in the English language course.  That course was cancelled on 19 December 2014, as the applicant had unsatisfactory course attendance.  His enrolment in the Master of Information Technology was consequently cancelled on 7 January 2015.  It appears from the PRISMS records, which were put to the applicant in the required way, that the applicant then enrolled, in January 2015, in a further English course.  Again, his enrolment was cancelled in that course because of unsatisfactory attendance on 19 March 2015. 

10. The applicant said that, while the first English course was cancelled for unsatisfactory course attendance, he had never enrolled in a second course starting in January 2015, which was cancelled in March 2015. 

11. The applicant provided the Tribunal with a copy of a document which indicated that, with the first English language course, where the enrolment was cancelled for unsatisfactory attendance, that he had only attended 38 per cent of the time, and that he had achieved an overall score of 16.8 per cent.  He said that the reason for this was that he was depressed and homesick having recently arrived in Australia. 

12. The records held by the Department, which were put to the applicant in the required way, indicate that the applicant was not enrolled in any course from March 2015 until he enrolled in an Advanced Diploma of Business on 2 May 2016.  That course was cancelled by the applicant himself in August 2016, as he wished to do a different course, a Masters of Business Administration.  The applicant enrolled in the Masters of Business Administration in August 2016 after he was granted a subclass 500 visa in October 2016, but that course was cancelled on 16 November 2016 for non-payment of fees. 

13. While the records, which were put to the applicant in the required way, indicate that the applicant was not enrolled in any courses from March 2015 until May 2016, the applicant contends that he was in fact enrolled in a Diploma of Management.  He said he was enrolled in a Diploma of Management with Pacific International College from March 2015 until February 2016. Even if the applicant's version of events was accepted, that means that the applicant had not studied anything from December 2014 until March 2015, and therefore that period where he was not enrolled, from December 2014 to March 2015, constituted a breach of condition 8202. 

14. Similarly, even if the applicant's account was to be accepted, and that he finished his course in the Diploma of Management in February 2016, he was still not enrolled from that date until May 2016, a further breach of condition 8202. 

15. In addition, as the applicant was initially the holder of a subclass 573 visa, he was required under condition 8516 to remain enrolled in what I have described as a higher education course, in his case, a Master of Information Technology.  His enrolment in that course ceased on 7 January 2015, as he failed to complete his English course.  From that date the applicant was also in breach of condition 8516. 

16. The applicant provided to the Tribunal a certificate which indicated that the applicant completed a Diploma of Management with Pacific International College.  The date of issue of that certificate was 1 March 2015.  That is inconsistent with the applicant's evidence that he was enrolled in that course from March 2015 and completed the course in February 2016.  In addition, the Tribunal put to the applicant that there was no record of this course in PRISMS, indicating that the course had not been registered with PRISMS in the required way, or alternatively, that the document was bogus. 

17. The Tribunal is also concerned because, although the applicant attempted three times to name one of the eight units that the certificate indicated he had completed, he could not name a single unit of the eight units which had been completed.  The Tribunal therefore has serious concerns about the authenticity of the document and whether the applicant ever attended this course.  However, the Tribunal put to the applicant in the required way that Pacific International College's registration as a registered education provider was cancelled in 2017. 

18. While the Tribunal has serious concerns about whether the applicant ever attended this course, the Tribunal is willing to give the applicant the benefit of the doubt, especially in circumstances where Pacific International College's registration was cancelled, and that it may have been cancelled in part because it failed to register courses or CoEs for people who had enrolled in the college.  Therefore, for the purpose of this decision, the Tribunal is willing to accept that the applicant attended Pacific International College from March 2015 to February 2016, and that he completed a Diploma of Management. 

19. The Tribunal raised with the applicant its concern that, since the applicant had failed to complete his English language course and Master of Information Technology, and that on his evidence only completed a Diploma of Management when he held the 573 visa, and especially because the applicant had given evidence that he ceased studying altogether in November 2016 because he could not pay the fees, that he may not have the ability to successfully undertaken an education course in Australia. 

20. The applicant explained that someone that he was living with gained access to details - telephone and credit card details and had defrauded him of some $70,000 - $80,000, that he was therefore $70,000 - $80,000 in debt and that he was currently working with the relevant companies to lift the debt.

21. The Tribunal has heard that, in relation to his academic performance, the applicant was depressed and homesick at the time, and that is the reason why he was not attending, and therefore failing the English course.  He said in relation to the financial concerns, that he was currently trying to have the debt lifted, and that if he was given the opportunity his family in India would provide some money so that he could complete his MBA course. 

22. The Tribunal raised with the applicant its concern that because the applicant had failed an English course because he had failed to attend, only attending 38 per cent of the time, and because the applicant had failed to enrol in another course since November 2016, despite his visa not having any no-study condition attached to it, the applicant may not have the will or desire to successfully undertaken a higher education course in Australia.

23. The applicant reiterated that the reason he did not attend and complete the English language course was because he was homesick and depressed, and similarly that after November 2016, when the MBA course was cancelled, that he was depressed because his visa was to be cancelled, and also that he was in a large amount of debt because of the fraudulent activity of his housemate. 

24. The Tribunal also raised with the applicant its concern that the applicant had told the Tribunal that his intention, even before he came to Australia on the first 573 visa, was to remain in Australia permanently. This suggested that is he never had an intention to come to Australia to study temporarily, which was the criteria for the grant of the 573 visa initially granted, and also the 500 visa which was granted in October 2016. The applicant admitted that this was the case and that, given the opportunity, he would complete the MBA and then attempt to remain living in Australia.

25. The Tribunal asked the applicant whether he or any of his family members would suffer any hardship if his visa remained cancelled, and he said that they would not. 

26. The Tribunal finds that, because the applicant failed to complete English language courses and his Master of Information Technology, and was only able to complete a vocational course in management during the currency of his subclass 573 visa, and especially because the applicant is some $80,000 in debt, and there has been no realistic plan provided as to how he intends to pay for his courses in the future, the applicant does not have the ability to successfully undertake an education course in Australia.

27. The Tribunal also finds that, because the applicant had two enrolments in an English language course cancelled because of unsatisfactory attendance, and because he had not studied, or enrolled to study, since November 2016, that the applicant does not have the will or desire to successfully undertake an education course in Australia. 

28. The Tribunal also finds that, because the applicant has admitted that his intention is and has always been to remain permanently in Australia, that the applicant did not meet the criteria for the grant of the two student visas he was granted, and will not meet the criteria for the grant of a further student visa, unless that intention changes before he applies for another visa. 

29. The Tribunal is willing to accept that the applicant and his family members may suffer disappointment and be upset if his visa is cancelled before he is able to complete a higher education course in Australia, other than the vocational course.  The Tribunal accepts that the applicant loves Australia and wishes to remain here permanently.  However, student visas are not permanent visas.  They do not exist for people to come to and remain in Australia permanently.  Rather, they are temporary visas for students who intend to come to Australia, study, and then depart before the relevant visa has ended, or, as has occurred in this case, to extend that temporary period by applying for another visa to complete studies. 

30. The Tribunal has considered that, as the applicant's visa was cancelled for breach of condition 8202, the applicant will be excluded from successfully applying for another visa, for some three years after the cancellation of his visa.  However, the Tribunal finds that the applicant's lack of desire and ability to successfully undertaken an education course in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant's visa. 

31. The Tribunal has also considered that the applicant's stated desire to remain in Australia permanently weighs in favour of the exercise of the discretion to affirm the decision to cancel the visa. 

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

    Decision

33. The Tribunal affirms the decision to cancel the applicant's Class TU visa.

    Tigiilagi Eteuati
    Member