Kakrecha (Migration)

[2019] AATA 4067

Kakrecha (Migration) [2019] AATA 4067 (8 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yogesh Kakrecha

CASE NUMBER:  1901047

HOME AFFAIRS REFERENCE(S):           BCC2017/4048362

MEMBER:T. Quinn

DATE:8 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2019 at 2:18pm

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 – length of time onshore – purpose of remaining in Australia – 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 14 January 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant has been in Australia since February 2014 on student (and associated bridging) visas and was granted the current visa on 2 December 2016.[1]  The applicant is from India and initially came to Australia with the intention to study in Engineering to pursue a career in that field, however, his intention has now changed and he wishes to become a chef.[2]

   [1]           See delegate’s decision.

   [2]           See delegate’s decision.

3. On 14 January 2019, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(b) of condition 8202 of his visa in that he failed to maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that was at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. [3]  The applicant did not comply with this condition of his visa from 5 September 2017 to 4 January 2019.[4]  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [3] As required by condition 8202(2)(b) of the Migration Regulations 1994 (‘the Regulations’).

   [4]           See delegate’s decision.

4. On 16 January 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

5. The applicant appeared before the Tribunal on 29 July 2019 to give evidence and present arguments. 

6. The applicant was assisted in relation to the review by their registered migration agent but their migration agent did not attend the hearing.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

8. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   STATUTORY FRAMEWORK

10. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

11. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

12. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases,  a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);

    b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

13. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course at the required AQF level.

14. The applicant was enrolled in a Bachelor of Business at AQF level 7.  This enrolment was cancelled on 5 September 2017 and the applicant was not enrolled in a full time registered course of study at AQF level 7 or above from that date until 4 January 2019. 

15. The applicant has at all times acknowledged and accepted that there are grounds for cancellation.[5]

    [5]           See delegate’s decision, submissions from the applicant and applicant’s evidence at hearing.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

17. 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’.

    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

18. Prior to his arrival in Australia, the applicant completed a Bachelor of Mechanical Engineering and then worked as a mechanical engineer for two and a half years in India.  He gave evidence that his initial arrival in Australia was to undertake a Masters of Engineering but that he never undertook that course.  The applicant stated he completed a four month English course and then had a two month break from study as he felt home sick and was living in Brisbane without a support network.  His evidence was that he had a friend in Melbourne and so moved to Melbourne, he could not obtain enrolment in a Higher Education Sector course and so enrolled in and completed a Diploma and Advanced Diploma of Business Management.  He was never issued with a Notice of Intention to Consider Cancellation (‘   NOICC’) during this period.  In July 2016 he enrolled in and commenced a Bachelor of Business and was granted the current visa on the basis of undertaking this level 7 AQF course.  The applicant’s evidence at hearing was that he was going well in this course and had paid all fees but in November 2016 there were changes in the Indian Government which impacted the applicant’s father’s financial capacity. 

19. The applicant filed written submissions with the Tribunal on 17 July 2019 and has previously filed a Response to the NOICC with the Department[6] (‘the Submissions’).  The Submissions indicated that the applicant’s father had to draw down on the loan in place to cover the applicant’s education fees.  In addition to his financial incapacity to pay his fees, the applicant stated he also became very stressed and failed all his subjects in 2017.  The applicant was unable to supply any academic transcript.  He said he had requested this but his university would not provide it.  He stated he also requested leave from his study for six months but this was also denied.  He indicated he did not have any corroborating evidence to this effect.

    [6]         See pages 65-6 of the Department File, being submissions dated 8 January 2019, filed by the applicant.

20. Following cancellation of his Bachelor of Business, the applicant states that he received advice from a migration agent that he could enrol in a lower level course without breaching his visa conditions.  He states that he commenced his Diploma of Hospitality Management in August 2017.  He completed this course on 20 December 2018, shortly before he received an NOICC dated 2 January 2019. 

21. The applicant promptly enrolled in a Bachelor of Tourism and Hospitality Management (‘BTHM’) on 4 January 2019.  However, the applicant was actually not enrolled in a registered course of study whatsoever for approximately two weeks between completion of his Diploma of Hospitality Management and enrolment in the BTHM which is also a breach of his visa condition 8202.  The Department has not cancelled his visa on this basis, however, and the Tribunal acknowledges the applicant’s submissions that obtaining enrolment over the Christmas/ New Year period was difficult.  Nonetheless, it is possible to have two enrolments simultaneously for successive courses.  Therefore, it is reasonable to consider that the applicant could have ensured continuous enrolment by enrolling in a course to follow 20 December 2018, prior to completing his Diploma of Hospitality Management. 

22. The Submissions refer to a goal of a position in Hotel Management.  However, at hearing the applicant did not refer to such a goal.  He stated on more than one occasion that his goal is now to become a good chef.  He supplied two reference letters from previous employers which demonstrated he has been an enthusiastic employee as a chef and is likely to excel in this field.  The Tribunal accepts that the applicant has enjoyed working as a chef and intends to continue to progress his career as a chef.  However, the Tribunal questions the relevance and value of a BTHM in relation to such a goal.  The Tribunal considers the applicant’s previous study in Australia and, most significantly, his experience working as a chef in Australia are likely to have given him considerable benefit in fulfilling his goal upon  return to his home country or region.  The Tribunal considers any additional benefit of the BTHM in relation to the applicant’s stated career goal would be marginal and would be outweighed by the considerable time and expense of undertaking such study in Australia.

23. The applicant stated that if his visa is cancelled, it will be difficult for him to choose a career.  He stated he has decided to change his career to a chef and if his visa is cancelled he does not think he will get a job as an engineer after a break of nearly four years.  He stated he needs a Bachelor course to make good money and that the three year ban (whereby an applicant’s whose visa is cancelled cannot reapply for a visa to Australia for a period of three years) is unfair. The Tribunal has difficulty accepting these submissions and considers that the applicant is likely to be able to pursue a career as a chef on the basis of the study and work experience he has obtained in Australia.  The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia.  Further, the Tribunal notes that the applicant has been onshore for in excess of five years and has had ample opportunity to engage with and complete a Bachelor level course and will have options to complete further studies in India if he chooses.

24. The Tribunal notes that the nature of the student visa programme is necessarily temporary and after over five years onshore, the Tribunal has concerns about the applicant’s true intentions.  The Tribunal considers the applicant does not have any compelling need to remain in Australia as he could study a Bachelor course in his home country.  The Tribunal considers the evidence in favour of cancelling the applicant’s visa is greater than the evidence against cancelling the applicant’s visa in the matters described in paragraphs 18-24.

    Circumstances in which ground of cancellation arose

25. The Submissions and the applicant’s evidence at hearing was that in late 2016 things became financially difficult for the applicant’s family, he could not afford his fees and failed his subjects in 2017.  The applicant has not supplied any financial documents or academic transcripts or to corroborate this evidence.

26. The Tribunal empathises with the applicant and his family in relation to their financial issues.  However, the option to return to India to avoid breaching his visa conditions was open to the applicant at all times.

27. The Tribunal acknowledges the applicant’s father’s financial position was out of the applicant’s control, but also considers that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same.  Whilst the Tribunal also acknowledges the applicant’s submissions that he received misguided advice, it is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  Further, the applicant has not provided any corroborating evidence in relation to the claimed misguided advice.  The Tribunal gives equal weight in favour and against cancelling the applicant’s visa in this regard

    Extent of compliance with visa conditions

28. The Tribunal notes the applicant’s evidence that he has otherwise complied with student visa conditions and been a prudent student.  However, the breach of the condition associated with the current visa is extensive, being fifteen months and in fact, the applicant was also breaching his enrolment condition for a short time prior to the NOICC being issued.  The Tribunal considers the fifteen month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

29. When asked about this factor, the applicant stated that if his visa is cancelled, it will be difficult for him to choose a career.  He stated he has decided to change his career to a chef and if his visa is cancelled he does not think he will get a job as an engineer after a break of nearly four years.  He stated he needs a Bachelor course to make good money and that the three year ban (whereby an applicant’s whose visa is cancelled cannot reapply for a visa to Australia for a period of three years) is unfair.

30. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

31. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

32. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

    The visa holder’s past and present behaviour towards the Department

33. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department.  The Tribunal notes that the applicant at hearing and in the Submissions claims he has felt like a terrorist with no work, study or travel rights.  The Tribunal understands such limitations must be difficult for the applicant, who the Tribunal acknowledges has primarily maintained enrolment, in compliance with the 8202 enrolment condition.  However, the applicant’s statements in this regard also seemed to suggest a denial of responsibility and the Tribunal is disappointed by this.  Overall, the Tribunal considers the applicant’s behaviour warrants some weight against cancelling the applicant’s visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

34. This is not relevant to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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. If the current visa is cancelled, this will result in the following:

    a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

    b.the applicant will have limited options to apply for further visas in Australia;

    c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

    The Tribunal gives little weight to this consideration in favour of the applicant because:

    ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·it reflects the seriousness with which the Department takes this type of cancellation ground;

    ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

    Australia’s international obligations

36. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

    Any other relevant matters

37. The applicant has filed a copy of an itinerary demonstrating he was prepared to travel to India from 12 January 2019 to 26 February 2019 to avoid breaching his visa conditions following enrolment in the BTHM (which he enrolled in on 4 January 2019 but was not due to commence until 25 March 2019).  The Tribunal gives this some weight against cancelling the applicant’s visa.

    CONCLUSION

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

    DECISION

39. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    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.