KALSI (Migration)

[2020] AATA 5261

KALSI (Migration) [2020] AATA 5261 (30 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vishal KALSI

CASE NUMBER:  1905111

HOME AFFAIRS REFERENCE:               BCC2018/5357752

MEMBER:Linda Symons

DATE:30 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 September 2020 at 5:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course ceased – education provider de-registered and re-launched – letter of release denied – applicant retained employment – decision under review affirmed    

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector 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 was not enrolled in a registered course since 12 February 2018. The issues in the present case are 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 16 September 2020 to give evidence and present arguments.

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 AND FINDINGS

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 was granted a Student visa by the Department of Home Affairs (the Department) on 29 September 2015. This visa was subject to a number of conditions including condition 8202. On 24 January 2019, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he was not enrolled in a registered course since 12 February 2018. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. He did not provide a response to the NOITCC. His Student visa was cancelled on 25 February 2019.

8. The applicant attended a hearing before the Tribunal on 16 September 2020. During the hearing, he gave evidence that, whilst in Australia, he has undertaken an English language course, a Certificate IV in Business and a Diploma of Business. He stated that the last time he studied in Australia was in December 2018. He disagreed with the Department that he was not enrolled in a registered course since 12 February 2018.

9. The records of the Department of Education indicate that the applicant was enrolled in a Certificate IV in Spoken and Written English from 12 October 2015 to 24 January 2016. He then enrolled in a Certificate IV in Business from 8 February 2016 to 5 February 2017and a Diploma of Business from 6 February 2017 to 4 February 2018. He enrolled in an Advanced Diploma of Business from 5 February 2018 to 3 February 2019. He did not commence that course and his Confirmation of Enrolment (COE) was cancelled on 12 February 2018. He has not enrolled in any other registered course since then.

10. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that, as he was not enrolled in a registered course since 12 February 2018, he had breached condition 8202(2) of his Student visa. He responded that what the Tribunal said was right but what he said was also right. He stated that the Department does not have a record that he studied in 2018.

11. The applicant earlier gave evidence that he completed a Diploma of Business on 12 February 2018. He stated that he was enrolled at the Grand Academy, it was subsequently de-registered and they opened a new College called AHMI in Harris Park. The staff was aware that the Grand Academy had been de-registered but the students were initially not aware of this. They were subsequently told that the registration of the Grand Academy had been cancelled and they were going to start a new College known as AHMI in Harris Park.

12. The applicant stated that he then enrolled in an Advanced Diploma of Business at AHMI in Harris Park, paid his fees in cash and studied there. He stated that he was not given his Diploma of Business and asked for it. He was not happy studying at AHMI and asked for a letter of release so that he could study elsewhere. He was asked to pay $5,000.00 in cash to receive his Diploma of Business and the letter of release. He paid $3,500.00 and received his Diploma of Business. He was not given a letter of release. He studied at AHMI for six or seven months excluding holidays. He left there in November or December (2018).

13. The applicant stated that when he received the NOITCC he spoke to someone at AHMI and was told that they would manage it and solve the problem. After his Student visa was cancelled and he lodged an appeal with the Tribunal, he left AHMI as he did not want to pay fees “for no reason”.  

14. The Tribunal asked the applicant whether he was issued with a COE from AHMI and he responded no. He stated that they were told that they could continue with the same COE. When asked why he thought his old COE (from the Grand Academy) would be valid at AHMI, he responded that maybe he made a mistake. He stated that some of the other students told him that it was the same COE for the same course with the same staff. They just changed the name. He asked AHMI and was told not to worry.

15. The Tribunal asked the applicant when he found out that he did not have a valid COE. He responded that he was thinking at the back of his mind that there was some fraud at AHMI. When he received the NOITCC he went to AHMI and told them about it and questioned why he had received the NOITCC when he was paying his fees and attending classes. He was told that they did not know and would fix it for him. When asked why he did not respond to the NOITCC, he stated that he was trying to get a COE. He paid his education agent fees to obtain a COE.

16. The applicant stated that on the same day he saw his education agent he received an email informing him that his Student visa had been cancelled. He was unfamiliar with the procedure and saw his education agent again as he did not know how to respond. His agent told him that he could not do anything and would have to apply to the Tribunal.

17. The applicant stated that he understood that if he was not enrolled in a registered course, he was in breach of condition 8202 of his Student visa. He did not agree that he had breached condition 8202 of his Student visa. He made a mistake. He then stated that he did breach condition 8202 of his Student visa and it was unfortunate for him that his visa was cancelled. He is a good student and really wants to study here.

18. The Tribunal discussed with the applicant whether he had any evidence to support his claim that he studied at AHMI in 2018. He stated that he withdrew the sum of $3,500.00 from his Commonwealth Bank account to pay AHMI in August or September 2018 and would be able to go to the Commonwealth Bank straight after the hearing, obtain a statement and provide it to the Tribunal the day after the hearing. He stated that he would be able to go to AHMI and obtain a letter from a teacher.

19. At the end of the hearing, the Tribunal asked the applicant how long he needed to provide the Tribunal with written evidence that he was enrolled in a registered course at AHMI and studied there until November or December 2018. He responded that he would see a teacher at AHMI and obtain a letter and would obtain a bank statement and provide it to the Tribunal the following day. The Tribunal gave him until 23 September 2020 to provide written evidence. He has not provided the Tribunal with any evidence to date. He has not contacted the Tribunal to seek further time to do so. His failure to provide any evidence to support his claims raises doubt about the credibility of his evidence.

20. The evidence before the Tribunal from the Department of Education is that the applicant’s enrolment in an Advanced Diploma of Business was cancelled on 12 February 2018 and he has not enrolled in any other registered course since then. (see paragraphs 9 and 10 above). The Tribunal prefers this evidence to the oral evidence given by the applicant.

21. In view of the above, the Tribunal finds that the applicant has not complied with condition 8202(2) of his Student visa.

    Consideration of the discretion to cancel the visa

22. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling      need to travel to or remain in Australia?

23. The applicant gave evidence that the purpose for which he travelled to Australia was to study here and do something for his future. He stated that he studied here, was a good student, got good marks and passed everything on the first go. When asked why he did not return to India if he came here to study and was not studying, he responded that he lodged an application for review with the Tribunal and thought he could not go to India.  

24. The Tribunal asked the applicant whether there was any need for him to remain in Australia. He responded that he really wants to study here. He came here to do a business course. He now wants to study at TAFE and do carpentry or some other trade. He asked his education agent if he could study at TAFE and was told he could not.

25. The evidence before the Tribunal indicates that the applicant has completed a Certificate IV in Spoken and Written English, a Certificate IV in Business and a Diploma of Business.

26. The Tribunal gives this consideration some weight in the applicant’s favour.   

    The extent of compliance with visa conditions

27. The applicant was granted a subclass 572 Student visa on 29 September 2015. He has not been enrolled in a registered course since 12 February 2018. This is a substantial period of time during which he was in breach of condition 8202(2) of his Student visa.

28. The Tribunal noted that the applicant had not been enrolled in a registered course of study for a considerable period of time and asked him what his plan was if he had not received the NOITCC from the Department. He responded that he did not have experience in anything like this. Maybe he would have contacted a migration agent and maybe he would have enrolled at TAFE. He was very stressed and did not know what to do. He went to an education agent and not to a migration agent.

29. The Tribunal asked the applicant if he had breached any other condition of his Student visa and he responded no. His evidence to the Tribunal was that he currently worked part time as a truck driver at Breeze Logistics and had worked that for approximately 6 months. Prior to that he worked part time as a driver for a steel company from September 2019 to February 2020. He was unemployed for 6 or 7 months before that and prior to that worked part time as a driver for a company called Holcin from 2017.

30. The records of the Department indicate that the applicant’s Student visa was cancelled on 3 April 2019 and he thereafter remained in Australia as an unlawful non-citizen. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he had no regard for Australia’s immigration laws and that his Student visa should remain cancelled. He responded that “it is all good”, he did not want to say anything and thought that because he had appealed, he could stay here and work.

31. The records of the Department indicate that the applicant was granted a subclass 572 Student visa on 29 September 2015. This visa was subject to conditions 8202, 8533, 8501, 8106, 8516 and 8517. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he had breached more than one condition of his Student visa. The Tribunal noted that he had also been working when he did not have permission to do so. He responded that the Tribunal was right.

32. The applicant’s conduct indicates, at best, a failure to ensure that he complied with Australia’s immigration laws and, at worst, a wilful disregard for Australia’s immigration laws.

33. The Tribunal does not give this consideration any weight in the applicant’s favour.    

    Degree of hardship that may be caused

34. The Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that it would ruin his dreams of studying in Australia. He wants to fulfill his dreams and will not be able to do anything if he does not have a visa. He had faith and still hopes that he can study here without tension and stress. He wants to study a trade at TAFE.

35. The Tribunal does not give this consideration any weight in the applicant’s favour.

    Circumstances in which the ground for cancellation arose

36. The applicant’s evidence of the circumstances in which the ground for cancellation arose are referred to above at paragraphs 11 to 18. He has not provided the Tribunal with any documentary evidence to support his claim that he was enrolled in a registered course at AHMI and studied there in 2018 despite his evidence that he was able to do so the day after the hearing.   

37. There were inconsistencies within the applicant’s oral evidence and inconsistencies between his oral evidence and the written evidence before the Tribunal. He stated that he left AHMI in November or December 2018. He also stated that, after his Student visa was cancelled and he lodged an appeal with the Tribunal, he left AHMI as he did not want to pay fees “for no reason”. The records of the Tribunal indicate that he lodged an application for review with the Tribunal on 5 March 2019. There is a considerable difference between him leaving AHMI in November or December 2018 and him leaving AHMI after 5 March 2019. 

38. The Tribunal asked the applicant why he thought his old COE (from the Grand Academy) would be valid at AHMI. He responded that maybe he made a mistake. He stated that some of the other students told him that it was the same COE for the same course with the same staff. They just changed the name. He asked AHMI and was told not to worry. However, he also stated that he enrolled in an Advanced Diploma of Business at AHMI, paid his fees in cash and studied there. This is not consistent with his earlier evidence that he relied on his previous enrolment at the Grand Academy. Further, if he had enrolled in a registered course at AHMI, the Tribunal would expect him to have been issued with a COE.

39. The applicant gave evidence that he suspected that AHMI was involved in fraud. This was all the more reason why he should have obtained advice from an education agent and a migration agent to ensure that he was not the victim of fraud and that he was not in breach of a condition of his Student visa.

40. Even if the applicant did enrol in an Advanced Diploma of Business at AHMI and studied there in 2018 as he claims, the onus was on him to ensure that he was enrolled in a registered course as required under condition 8202(2) of his Student visa. The evidence from the Department of Education, which the Tribunal has accepted, is that he has not been enrolled in a registered course since 12 February 2018.

41. The applicant gave evidence that his mistake was not responding to the NOITCC. He stated that if he had, he may not have this problem. He was a good student and he wanted to study. He has been in Australia for almost 5 years and is used to everything. He has been interested in studying a trade for the last 2 years but could not enrol at TAFE. What happened was unfortunate, but he still has hope.

42. The Tribunal gives this consideration little weight in the applicant’s favour.

    Past and present behaviour of the visa holder towards the Department

43. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department.

44. The Tribunal gives this consideration some weight in the applicant’s favour.  

45. Whether there would be consequential cancellations under s.140 of the Act

46. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act.

47. The Tribunal gives this consideration no weight in the applicant’s favour.

    Legal consequences of a decision to cancel the visa

48. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

49. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.

50. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa.

51. The Tribunal gives this consideration no weight in the applicant’s favour.   

    Australia’s international obligations

52. The Tribunal asked the applicant whether there was any reason why he could not return to India. He responded no. He stated that he wants to study in Australia and hopes to get a visa. He does not want to ruin his future.

53. On the evidence before it, the Tribunal is not satisfied that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations.

54. The Tribunal gives this consideration no weight in the applicant’s favour.

    Any other relevant matter

55. The Tribunal is not aware of any other relevant matter.

56. The Tribunal gives this consideration no weight in the applicant’s favour. 

    CONCLUSION

57. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the Student visa should be cancelled.

    DECISION

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

    L. Symons
    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.