K C (Migration)

[2020] AATA 3275

K C (Migration) [2020] AATA 3275 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prince K C

CASE NUMBER:  1934215

HOME AFFAIRS REFERENCE(S):          BCC2019/3346179

MEMBER:Elizabeth Tueno

DATE:23 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 23 June 2020 at 11:26am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had not been enrolled in a registered courses of study at level – breached condition 8202 –decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 December 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 delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(b) in that he was not enrolled in a registered course that, once completed, would provide a qualification that was the same level or higher than the Bachelor of Applied Commerce which the student visa was granted. The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it.  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 by telephone on 23 June 2020 to give evidence and present arguments. 

4. The Tribunal has had regard to the applicant’s oral evidence at the hearing as the well as documents in the Department’s file and the documents provided by the applicant to the Tribunal.

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.

   Did the applicant comply with Condition 8202?

7. 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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level, or higher level than, the registered course in relation to which the visa was granted: 8202(2)(b)

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course that is at the same level or higher than a Bachelor course.

9. The applicant accepted that he had breached condition 8202(2)(b) as he is not currently enrolled in a Bachelor course or higher.  He was enrolled in a Bachelor of Applied Commerce but withdrew on around 5 July 2018 from this course and enrolled in Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management.  Since 5 July 2018 he has not been enrolled in a Bachelor degree or higher course.

10. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at a Bachelor level or higher. Accordingly, the applicant has not complied with condition 8202(2)(b).

    Consideration of the discretion to cancel the visa

11. 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 Procedural Instruction ‘General visa cancellation powers’.

    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

12. The applicant is a 22 or 23 (he was not sure which) man from Nepal.  He gave evidence at the hearing that he came to Australia for the purpose of studying commerce.  He said that he now wants to remain in Australia in order to complete his “degree” and then he will return to his home country to work in the hospitality industry as a cook. 

13. He said that he has received an offer for entry into a Diploma of Hospitality Management at the Australian Institute of Technical Training (AITT).  The Tribunal confirmed this by reference to a letter provided by the applicant from AITT dated 10 June 2020.  The applicant stated that he wants to study a Bachelor degree after this Diploma course, but he has been unable to enrol in any course because his visa was cancelled.

14. The applicant confirmed that he is not currently working and he said that if his visa is not cancelled, he does not intend to return to work, instead he will be financially supported by his parents. 

15. There is no evidence presented at the hearing nor in the department’s file that the applicant came to Australia for any purpose other than to study.  Although the applicant came to Australia to study commerce, he states that he now has a desire to study cookery and hospitality.  While the applicant’s interest in his field of study has changed, the Tribunal accepts that the applicant’s reason for remaining in Australia is to complete his studies.  Accordingly, the Tribunal gives this some weight against cancelling the visa.  

    The circumstances in which ground of cancellation arose

16. The applicant mostly relied on the statutory declaration he provided the department in response to their notice of intention to cancel his visa as well as a letter from the applicant to the Tribunal dated 17 June 2020. 

17. The delegate’s decision contains a summary of the applicant’s statutory declaration, which is repeated below:

    ·He felt lonely and homesick from the moment he arrived in Australia as he had never lived away from his family.  By May 2018, he realised he was not enjoying his study in Accounting.

    ·He felt he was wasting his parents’ money in a course that was not for him.  He lost interest and failed the semester.  He realised his choice of enrolment was a mistake.

    ·He consulted a doctor who said he was suffering from depression and advised him to live with relatives.  His relatives in Melbourne provided him with some emotional and family support.  He decided to transfer to Melbourne, to change courses to something he was interested in.

    ·After discussion with his relatives, he decided Cookery was his interest and passion that he wanted to pursue.  His study was his primary goal, and knew that a qualification along with his passion would provide him with future opportunities in his home country.

    ·He now understands Cookery is a lower level course.  He understands there is no permanent residence pathway for Cooks.  He transferred as he wants to be successful and make his family proud, and provide him with career opportunities in Nepal.

    ·He completed his Certificate III in Commercial Cookery and is currently studying a Certificate IV in Commercial Cookery.  He wants to study a Diploma in Hospitality after this, for which he already has a CoE.  He then plans to complete a Bachelor of Hospitality and Tourism Development course.

    ·He has paid considerable tuition fees and living expenses in Australia.  He has paid all the required fees for the Certificate III and IV in Commercial Cookery.

    ·His academic record, attendance and enjoyment of the course is very good.

    ·He is working part time as a Cook.  He loves his job, and is receiving practical experience that he wants to use in the Hospitality field when he returns home. 

18. The applicant has now completed both the Certificate III and Certificate IV in Commercial Cookery, having provided the attainment statement and certificate of completion for these courses to the Tribunal. 

19. In his letter dated 17 June 2020 to the Tribunal, the applicant provided further information, stating:

    ·He went to his education consultant to change course and was advised that his visa would not be affected and that was allowed to study at the Diploma level.

    ·Based on his consultant’s advice, he changed courses due to his personal circumstances.

    ·He attributed all the blame on the education consultant for his visa being cancelled, who advised him it was ok not to be enrolled in a Bachelor course.

    ·After receiving the department notice of intention to cancel his visa, he went to a migration agent to help him.  He said the migration agent did not mention anything about enrolling in a Bachelor course or higher, despite the applicant telling the agent that he was interested in a Bachelor of Hospitality after the completion of the Diploma course.  He took the advice of the agent and provided documents to the department.  

    ·He had a genuine intention to study the Diploma course but was not able to continue his studies after his visa was cancelled.  He says he took the right steps by going to the appropriate person to seek advice but was not provided with the correct advice. 

    ·He said as an international student, the only place he could go to seek educational and migration advice were migration agents and education consultants.  They both failed him.

    ·He has been refused any working or study rights as a result of his visa cancellation.  He has received an offer for a Diploma of Hospitality course but cannot enrol in the course yet.

    ·He is a victim of misinformation and misguidance.   He wants to be able to achieve his dream of achieving an Australian degree. 

    ·He requests that the Tribunal remit his matter to the department so he can get the appropriate visa to study the course.

    ·When he received the notice of intention to cancel his visa, he was incredibly stressed and not in the right position to decide anything on his own, which is why he sought professional advice. 

20. At the hearing, the applicant said that he only ever received face to face verbal advice from the education consultant, nothing in writing.  He said that they told him he could enrol in the Diploma of Hospitality.  When asked whether he had contacted the department about changing courses, he said no. 

21. He repeated at the hearing that he had been misguided and was suffering from mental health issues, that he did not know the rules about enrolment. 

22. The applicant provided a letter from a psychologist to the department who he had consulted in Sydney before moving to Melbourne.  At the hearing, the applicant confirmed that he only saw this psychologist once.  He said he is not currently seeing a psychologist and the last time he did was around two months ago.  He could not remember the name of psychologist he has seen since moving to Melbourne and he has only seen him once.  The applicant confirmed he has never taken any medication.

23. The Tribunal has considered all of the applicant’s evidence about the circumstances that led to his visa being cancelled.  While the Tribunal accepts that the applicant was suffering from depression and anxiety around the time his enrolment was cancelled in the Bachelor course, the applicant only attended for treatment or counselling on two occasions.  Once at the time he changed course, which is documented by the letter dated 21 June 2018 from Mr Alfred De Robillard.  The second occasion was two months ago in Melbourne.  However, the applicant’s evidence about this was vague, not being able to even recall the name of the Melbourne psychologist, who he saw only two months ago. 

24. The applicant clearly recovered enough from his depression and anxiety, without medication or ongoing treatment, in order to compete the Certificates III and IV in Commercial Cookery.  The applicant attributed his mental state for having to rely on the advice of his education consultant and migration agent.  However, at no stage did the applicant make contact and advise the department about his intentions to change course.  The applicant accepts no responsibility for his breach of the conditions of his visa.  He was on notice that he ought to at the very least contact the department, having received the letter from TAFE NSW International dated 5 July 2018, which released him from the Bachelor of Applied Commerce course.  This letter stated, “Prince is advised that as a result of being released from TAFE NSW, his CoE has now been cancelled and this may affect his student visa status.  He should contact the Department of Immigration and Border Protection with regards to the status of his student visa at the following address”.  The letter provides the department’s address, phone number of website.

25. Other than the applicant’s own evidence about the alleged professional failings of his education consultant, there has been no other evidence that could objectively support these allegations.  The Tribunal finds it unusual for there to be no documents such as letters or emails in relation to this.  And in relation to the migration agent’s representation of the applicant in responding to the department’s notice of intention to cancel his visa, the Tribunal finds that the agent responded appropriately by providing the requested information.  There is nothing to suggest that the migration agent acting in any way inadequately.

26. Lastly, the Tribunal takes not that the applicant could have enrolled in a Bachelor of Hospitality at the same time he enrolled he enrolled in the Certificates III and IV and the Diploma course.  He did not do so, despite professing an interest in undertaking study at the Bachelor level in hospitality studies. 

27. Having considered these matters, the Tribunal is of the view that the applicant had a responsibility to contact the department and to both advise them of the changes he wanted to make to his enrolment and to enquire whether these changes would affect his visa.  He was made aware of this responsibility by TAFE NSW.  He did not do so.  He has gone on to complete the Certificate III and IV courses and still did not enrol in a Bachelor course or higher.  He has now been offered a place in a Diploma of Hospitality course, which still leaves him in breach of condition 8202(2)(b).

28. In light of the above circumstances, the Tribunal gives this significant weight in favour of cancelling the visa. 

    The extent of compliance with visa conditions

29. Aside from not complying with condition 8202(2)(b), there is no evidence to suggest that the applicant has not complied with any other condition of his visa.  However, the applicant has been in breach of condition 8202(2)(b) for a significant period of time, since 5 July 2018.  Accordingly some weight is given in favour of cancelling the visa.

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

30. When asked what hardship might be caused if her visa were to be cancelled, the applicant said that he had invested a lot of money to study in Australia and has already completed half of his studies in hospitality before his enrolment was cancelled as a result of his visa being cancelled.  He said his mother and father have expectations of him to get an education.  They have invested a lot of money in his education. 

31. The Tribunal also takes into account the evidence that the applicant has suffered from depression while studying in Australia. 

32. The Tribunal accepts that the applicant will suffer some hardship if he has to return to his home country in terms of financial, emotional and psychological hardship.  Accordingly, the Tribunal gives this some weight against cancelling the visa.

    Past and present behaviour of the visa holder towards the department

33. As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa.  Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department.  Accordingly the Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

34. This is not applicable.

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

35. The applicant gave no evidence about any legal consequences for her, nor did he make any submissions about this.

36. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa.  While the applicant could make another student visa applicant offshore, he would not be permitted (with exceptions) to make an onshore visa application as a result of the cancellation. 

37. If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa.  Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention.  The applicant could also be precluded from being granted a further visa for a period of three years as a result of Public Interest Criterion 4013.  The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.

38. The Tribunal gives no weight in favour of or against cancelling the visa under this consideration.

    Australia’s international obligations

39. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations.  The applicant confirmed in his evidence that he is not married and has no children.  The applicant has not made an application for a protection visa, or any other type of Australian visa.  Nor has the applicant raised any concern about any barriers that would prevent her from applying for another type of Australian visa.  Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa. 

    Any other relevant matters

40. The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.

41. Considering the circumstances as a whole, but particularly the grounds in which the cancellation arose and the extent of the applicant’s compliance with his student visa, the Tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa.  Accordingly, the Tribunal finds that the visa should be cancelled.

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

    Elizabeth Tueno
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202     (1)  The holder must be enrolled in a full‑time course of study or training if the holder is:

    (a)  a Defence student; or

    (b)  a Foreign Affairs student; or

    (c)  a secondary exchange student.

    (2)  A holder not covered by subclause (1):

    (a)  must be enrolled in a full‑time registered course; and

    (b)  subject to subclause (3), must maintain enrolment in a registered course that, once completed, will 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 was granted; and

    (c)  must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)  A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)  changes their enrolment to a course at the Australian Qualifications Framework level 9