KUNWAR (Migration)

[2020] AATA 4309

KUNWAR (Migration) [2020] AATA 4309 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kuldeep Jung KUNWAR

CASE NUMBER:  1821894

HOME AFFAIRS REFERENCE:               BCC2018/1504435

MEMBER:L. Symons

DATE:9 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 9 September 2020 at 5:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-payment of fees – financial hardship – responsibility to check student email account regularly –  requirements of Standard 13 of the National Code 2017 – 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 24 July 2018 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 was not enrolled in a full-time registered course since 26 October 2017 in breach of condition 8202(2)(a) of his Student visa. He applied to the Tribunal for a review of that decision on 28 July 2018.

3. The applicant appeared before the Tribunal on 9 January 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.  

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 AND FINDINGS

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 breach 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)

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

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

8. In the present case, the applicant was granted a Student visa on 7 May 2017. This visa was subject to a number of conditions including condition 8202. On 12 July 2018, 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 full-time registered course of study since 26 October 2017. 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.  

9. The applicant’s migration agent provided the Department of Home Affairs (the Department) with a submission dated 24 July 2018 in response to the NOITCC. He also provided a Confirmation of Enrolment (COE) from La Trobe University, two COEs from Holmes Institute, a COE from Victoria University, a COE from Think Colleges Pty Ltd, a Psychologist Report dated 16 July 2018, an interim transcript from Holmes Institute dated 11 November 2015 and an online statement of results from Victoria University dated 2 August 2017. The Department cancelled the applicant’s Student visa on 24 July 2018.

10. The applicant has provided to the Tribunal a bundle of supporting documents including multiple copies of documents previously provided to the Department. He also provided the Tribunal with multiple copies of an Academic Transcript from Victoria University, correspondence with the Holmes Institute, the Holmes Institute’s Policy Statement, Conditional Offer of Admission Letter from the University of Wollongong dated 13 December 2019, International Student Offer and Acceptance Agreement from the Polytechnic Institute Australia Pty Ltd dated 19 November 2018, International Application for Admission to Southern Cross University dated 12 July 2018, a Letter of Completion from the Polytechnic Australia dated 21 November 2019, a Visa Grant Notice from the Department dated 15 March 2017, an Academic Transcript from the Polytechnic Institute Australia, a COE from the Polytechnic Institute Australia Pty Ltd, a COE from the Australian Ideal College and a COE from the University of Wollongong.   

11. The applicant provided the Tribunal with a written statement dated 7 January 2020 together with some supporting documents (referred to above). In his statement, he stated that the Department cancelled his visa because he did not comply with condition 8202. He stated that he believes that he has always complied with condition 8202. He stated that it may look like he has not complied with condition 8202 but it was his education provider’s fault. He stated that the Holmes Institute did not inform him of their intention to cancel his enrolment in the Bachelor of Professional Accounting as required under the National Code of Practices for Providers of Education and Training to Overseas Students and under their own Policies.

12. The applicant stated that he understood that, if he was not enrolled in a registered course, he would be in breach of condition 8202 of his Student visa. He stated that he did not breach condition 8202 of his Student visa.  

13. The records of the Department of Education indicate that the applicant was enrolled in a Bachelor of Professional Accounting from 21 August 2017 to 31 December 2018. It indicates that his enrolment in that course was cancelled on 26 October 2017 for non-payment of fees. It indicates that he subsequently enrolled in a general English course from 17 September 2018 to 21 October 2018. 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 from 26 October 2017 to 16 September 2018, he had breached condition 8202(2) of his Student visa.

14. The applicant responded that he considers himself to be a genuine student. He stated that if he is a person who does not pay the fees and has his COE cancelled due to “a 50% remaining fee”, he would not review the decision to cancel his Student visa. He stated that he was in a situation where he could not help himself. He stated that he tried to enrol in a course in the best way he could. He stated that, because of a lack of communication he was unaware that his COE was cancelled.

15. The applicant stated that after eight or nine months his Student visa was cancelled. He stated that if he had breached a condition it should have been notified to him then and not six or seven months later. He stated that he was not able to enrol in a course and because of that his visa was cancelled after July (2018). He stated that it was his “first glimpse” of himself with immigration. He stated that he had no idea whether he could study or not. He stated that he went to an agent and asked if it was possible for him to study again. He stated that he then completed his studies.  

16. The applicant repeated that he was not aware that his enrolment was cancelled in October (2017) and if there had been proper communication he would not be in this position. He stated that the problem with the payment of his fees was out of his control. He stated that he was not able to pay the fees 3 years ago. He stated that he was young when he came to Australia. He stated that if there is a “strike” on his immigration history, his career would be in jeopardy. He stated that he is trying “to retract” himself and be a better person.

17. Having initially claimed that he never breached condition 8202 of his Student visa, the applicant subsequently conceded that his enrolment in the Bachelor of Professional Accounting degree at the Holmes Institute was cancelled in October 2017 and, as a result, his Student visa was subsequently cancelled. He claimed that he was not notified of the cancellation of his COE until July 2018. (In his response to the NOITCC, his migration agent submitted that he was under the impression, until February 2018, that he was enrolled at the Holmes Institute.) The issue of his notification of the cancellation of his COE is relevant to the exercise of the discretion in relation to whether or not his Student visa should be cancelled and is considered below.

18. The Tribunal accepts the evidence from the Department of Education, referred to in paragraph 13 above, and finds that the applicant was not enrolled in a full-time registered course from 26 October 2017 to 16 September 2018 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

19. 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’.

20. The Tribunal wrote to the applicant on 21 January 2020, pursuant to s.359A of the Act, and received a response on 4 February 2020. The Tribunal again wrote to the applicant on 27 July 2020, pursuant to s.359AA of the Act, and received a response on 10 August 2020. The Tribunal has had regard to the responses when considering it discretion to cancel the visa. 

    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?

21. The applicant gave evidence that when he came to Australia his intention was to study hospitality leading to a Master’s degree. He stated that he subsequently changed to accounting as he wanted to have a career in accounting. He stated that he completed a Bachelor of Business Accounting on 14 October 2019. The Tribunal asked him whether there was any reason for him to remain in Australia as he has now completed the Bachelor of Business Accounting degree.

22. The applicant responded that he had a tough time with the Bachelor degree and the “academic scenario”. He stated that he reflected on his grades and wished they were higher. He stated that other international students have done similar courses. He stated that he would be in a competitive market. He stated that if he remains in Australia for a post graduate program, he will try his best to get good grades as it would help him to compete with others. He stated that he would make his parents proud.

23. The records of the Department of Education indicate that the applicant initially enrolled in an Advanced Diploma of Hospitality from 10 February 2014 to 18 December 2015 and a Bachelor of Business (Tourism and Hospitality) from 4 January 2016 to 4 November 2016. His enrolment in the Advanced Diploma was cancelled on 17 July 2014 for unsatisfactory course progress. He then enrolled in a Bachelor of Professional Accounting from 28 July 2014 to 31 July 2017. His enrolment in that course was cancelled on 28 April 2016 as he notified the education provider that he was ceasing his studies. He also enrolled in a Bachelor of Business (Accounting) from 3 December 2015 to 20 July 2018. His enrolment in that course was cancelled on 13 September 2017 for unsatisfactory course progress.

24. The records of the Department of Education indicate that the applicant then enrolled in a Bachelor of Professional Accounting from 21 August 2017 to 31 December 2018 and his enrolment in that course was cancelled on 26 October 2017 for non-payment of fees. He  then enrolled in a general English language course from 17 September 2018 to 21 October 2018. He completed that 4 weeks course. He then enrolled in a Bachelor of Business (Accounting) from 12 November 2018 to 7 November 2020 and completed that course on 14 October 2019.

25. The Tribunal put the above information to the applicant, pursuant to s.359AA of the Act, and noted that he has been in Australia since 4 February 2014 and has only completed a 4 weeks English language course and a Bachelor of Business (Accounting) degree which was not completed until 14 October 2019. The Tribunal noted that he has a poor record as a student in Australia and it may find that he has not fulfilled the purpose for which he was granted the Student visa and that his Student visa should be cancelled.

26. The applicant responded that he agreed with this information and it looks bad. He stated that the sole purpose of his coming to Australia was to complete the undergraduate degree. He stated that he has shown proof that he intends undertaking post graduate studies in Australia. He stated that he wants to complete the postgraduate course in Australia at the University of Wollongong as he would not be able to compete in the market with his current degree and experience. He stated that he wants to rectify the poor past to make his future better with a Master’s degree. He stated that it is a valuable degree now.

27. The applicant stated that he wants his resume to look better. He stated that he wants to  show that he is a genuine student and can complete a post graduate degree. He stated that that would help him to be a better person for himself and everyone else and to return to Nepal. He stated that his experience and degree would make it easier to get a good job and a good life in Nepal.

28. The applicant provided the Tribunal with a COE for a Master of Supply Chain Management at the University of Wollongong from 10 February 2020 to 5 May 2021. The Tribunal is not convinced that this course would advance his career in accounting or make him more competitive in the accounting field.

29. The applicant’s evidence is that he did not work for the first six months after he arrived in Australia. He stated that since then he has worked most of the time. He stated that he has worked in a number of jobs like working at KFC, as a bar tender, at Woolworths, as an education consultant and as an Uber driver. He stated that, prior to the cancellation of his Student visa, he worked at Woolworths and as an education consultant. He stated that, after his Student visa was cancelled, he gave up his job at Woolworths and now works as an Uber driver.  

30. The applicant’s evidence in relation to his employment history in Australia indicates that he primarily worked in the service industry. It does not indicate that his work experience was or is directly related to his chosen career path of accounting. The Tribunal is therefore not convinced that his work experience in Australia would help him to get a “good job”, particularly in his chosen career in accounting, in Nepal.

31. The Tribunal is not satisfied that the applicant has demonstrated a compelling need to remain in Australia.

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

    The extent of compliance with visa conditions

33. The applicant has filed with the Tribunal a copy of his Visa Grant Notice which indicates that he was issued with a subclass 500 Student visa for the Higher Education Sector and this visa was subject to conditions 8105, 8202, 8501, 8516, 8517, 8532 and 8533.

34. The records of the Department of Education indicate that the applicant was not enrolled in a full-time registered course from 26 October 2017 to 16 September 2018 and the Tribunal has found accordingly. This was a substantial period of time in which he was in breach of condition 8202(2)(a) of his Student visa.

35. During the hearing, the applicant gave evidence that he has not breached any other visa conditions. Condition 8516 of his Student visa requires that the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In this case, the applicant is the primary applicant and must satisfy the primary criteria.

36. One of the criteria that the applicant is required to satisfy and continue to satisfy is cl.500.214 which requires that:

    (1)  The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).

    (2)  While the applicant holds the visa, sufficient funds will be available to meet:

    (a)  the costs and expenses of the applicant during the applicant’s intended stay in Australia; and

    (b)  the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.

    (3)  If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).

    (4)  The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).

37. The evidence provided by the applicant to the Tribunal (see below) indicates that he was unable to undertake his examinations at the Holmes Institute in October 2017 as he had not paid his trimester fees and he was unable to enrol in February 2018 for the following trimester as he did not have sufficient funds to pay his fees. Accordingly, he did not continue to satisfy cl.500.214(2)(a) during his stay in Australia and therefore breached condition 8516 of his Student visa. The Tribunal finds that he breached condition 8516 of his Student visa for a substantial period of time.  

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

    Degree of hardship that may be caused       

39. The Tribunal asked the applicant what hardship may be caused to him if his Student visa is cancelled. He responded that everything he has done in his life since the age of 19 years would be in jeopardy. He stated that everything he has done in Australia and “built his empire on” would be in jeopardy. He stated that his beliefs for his parents would be wasted.

40. In his statement to the Tribunal dated 7 January 2020, the applicant stated that his parents have invested a significant amount in his education in Australia. He stated that his family will suffer if he is not allowed to undertake his course at the University of Wollongong. He stated that he will be deprived of migration opportunities to Australia due to the exclusion periods if his Student visa is cancelled. He stated that his family will experience disappointment and shame if his visa is cancelled before he is able to complete a course in Australia.

41. In his statement to the Tribunal dated 7 January 2020, the applicant stated that he has demonstrated that he is able to complete a Bachelor level course and has secured enrolment in a Master of Supply Chain Management and Master of Project Management with a reputed university. He stated that his completion of the Bachelor degree in accounting demonstrates his desire to successfully undertake higher education courses in Australia and this outweighs the alleged breach of condition 8202 due to the Holmes Institute’s failure to comply with their own cancellation policies and the National Code.

42. The Tribunal accepts that the applicant’s parents have invested a significant amount of money in his education in Australia and would be disappointed if his Student visa is cancelled. His evidence is that his sole purpose in coming to Australia was to complete an undergraduate degree. He has now achieved that purpose, graduated with a Bachelor of Business (Accounting) degree and presumably avoided disappointing and shaming his family. This achievement would have provided his parents some satisfaction and pride.

1. The Tribunal accepts that the applicant would like to remain in Australia and complete the Master of Supply Chain Management degree. The Tribunal is not satisfied that this degree would assist him in his chosen career path of accounting and is therefore not satisfied that it would cause him significant hardship if he is unable to complete it.

2. During the hearing, the applicant repeated several times that it was his intention to complete his studies in Australia, return to Nepal and obtain employment in Nepal. His statement that he will be deprived of migration opportunities to Australia if his Student visa is cancelled is therefore not consistent with that evidence.

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

   Circumstances in which the ground for cancellation arose

4. The circumstances in which the ground for cancellation arose are that the applicant failed to maintain enrolment in a full-time registered course from 26 October 2017 to 16 September 2018 resulting in the breach of condition 8202(2)(a) of his Student visa and the cancellation of this visa.

5. In response to the NOITCC, the applicant’s migration agent submitted that the applicant completed twenty out of twenty four subjects for a Bachelor of Business (Accounting) degree at Victoria University. He submitted that he repeatedly failed the same subjects and then decided to enrol at the Holmes Institute to complete the last four subjects of his degree. He submitted that the Holmes Institute gave him credit for the subjects he had undertaken at Victoria University. He submitted that he enrolled at the Holmes Institute on 23 August 2017 for a course commencing 21 August 2017 to 31 December 2018.

6. The applicant’s migration agent submitted that the applicant paid half the tuition fees to the Holmes Institute at the time of enrolment. He submitted that he could not pay the remaining fees to the Holmes Institute due to financial hardship caused by a marital dispute between his parents. He submitted that his parents were supporting his education. He submitted that for that reason his examinations were deferred to February 2018. He submitted that the Holmes Institute did not send him any notice of their intention to cancel his enrolment and advised him that he could attend his supplementary examinations in February 2018.

7. The applicant’s migration agent submitted that the applicant could not pay his tuition fees (in February 2018) due to financial hardship. He submitted that in April 2018 the Holmes Institute sent him an email inquiring about his visa status and did not mention his enrolment status. He submitted that he contacted the Holmes Institute on 10 July 2018, requested re-enrolment and paid his outstanding fees. He submitted that the Holmes Institute then informed him that his enrolment with the Holmes Institute had ceased. He also submitted  that he was under the assumption, until February 2018, that he was enrolled at the Holmes Institute.  

8. The applicant’s migration agent submitted that evidence was attached in relation to the applicant’s financial hardship being due to circumstances beyond his control, the Holmes Institute sending the applicant an email in April 2018 inquiring about his visa status, the payment of his outstanding fees in July 2018 and a screen shot of the Holmes Institute Student Portal which still showed the applicant as being enrolled there. None of this evidence was provided to the Department.

9. The applicant provided the Department with a COE issued by the Holmes Institute in relation to the applicant’s enrolment in a Bachelor of Professional Accounting degree from 21 August 2017 to 31 December 2018. It indicated that his tuition fees were paid for the period 21 August 2017 to 1 September 2017. This is not consistent with the submission made by his migration agent that he paid half the tuition fees to the Holmes Institute at the time of enrolment. There is no evidence that he paid any tuition fees to the Holmes Institute thereafter contrary to his migration agent’s submission that he paid the rest of his outstanding fees in July 2018.  

10. The applicant’s migration agent submitted to the Department that, due to non-payment of fees, the applicant’s examinations were deferred to February 2018 and he was advised by the Holmes Institute that he could attend supplementary examinations in February 2018. No evidence was provided to support this submission. The Department was provided with barely legible email correspondence between the applicant and the Holmes Institute. It indicates that at 12.21pm on 1 February 2018 Mr Rob Relton, Campus Director, at the Holmes Institute wrote to the applicant stating ‘what is your question Kuldeep’. At 12.24pm on 1 February 2018 the applicant responded ‘I am in a situation where I haven’t given my exams for the last semester I studied before summer break because of financial issue. Is it possible to give supplementary exams for one/two subjects I studied and repeat other subjects I studied from March. Please advise me how I can pass BPA before my visa expiry which finishes on July 2018.’

11. This email correspondence indicates that in February 2018 the applicant made inquiries with the Holmes Institute whether it would be possible for him to do supplementary examinations (in lieu of the examinations he failed to take in 2017). This tends to indicate that his examinations were not deferred until February 2018 and he was not advised by the Holmes Institute that he could undertake supplementary examinations in February 2018 as submitted by his migration agent.

12. In his submission to the Department, the applicant’s migration agent stated that the applicant was “always under the assumption” until February 2018 that he was enrolled with the Holmes Institute. It is not clear why he made this assumption considering that he had only paid his tuition fees until 1 September 2017 and was not allowed to sit the examinations in October 2017 for this reason. It is also not clear how he found out in February 2018 that he was not enrolled at the Holmes Institute. One possible explanation is that he only checked his student email account at the Holmes Institute in February 2018 and then realised that his enrolment had been cancelled on 26 October 2017.  

13. The applicant filed with the Department a Psychologist Report dated 16 July 2018 from Mr Hamid Dadgostar, Psychologist. In his report, Mr Dadgostar stated that the applicant was “referred to this practice for a psychological assessment in regard to his mental health state and academic progress from October 2017 to now. He wishes to use the result of this assessment to mitigate the reasons for his student’s visa compliance difficulty to the Department of Immigration and Border Protection.” (sic) 

14. In his Report, Mr Dadgostar provided a history given to him by the applicant including that in August 2017 his parents were going through a divorce, that this was shameful in Nepalese culture, there was rejection by the whole society and it was frowned upon by every aspect of Nepalese society and that this crisis led to a lack of funds from his parents for his enrolment. He stated that the applicant reported feeling so depressed that he “could not tolerate being with others or in crowded places and, for that reason, could not cope with being at school surrounded by so many people”.

15. In his Report, Mr Dadgostar stated that he administered the Kessler 10, which is a ten item self-report questionnaire based on questions about the level of anxiety and depressive symptoms in the most recent 4 weeks period. He found that the results indicated Depressive and Anxiety symptoms. He concluded that the applicant’s anxiety and depressive symptoms directly affected his studies which had manifested as a lack of motivation and interest in academic progress.

16. During the hearing, the applicant gave evidence in relation to his education and employment history in Australia. He was working at Woolworths and as an education consultant at the time he was assessed by Mr Dadgostar. This is not consistent with the information he provided Mr Dadgostar that he was so depressed that he “could not tolerate being with others or in crowded places and, for that reason, could not cope with being at school surrounded by so many people”. He was also not enrolled in any studies in the 4 weeks prior to his appointment with Mr Dadgostar on 13 July 2018. He had not been studying since at least October 2017. Further, his evidence to the Tribunal indicates that his parents are together and did not go through a divorce as reported to Mr Dadgostar.

17. The Report from Mr Dadgostar was obtained for the purpose of assisting the applicant’s case before the Department. It is primarily based on self-reporting and some of his self-reporting is not consistent with his own evidence to the Tribunal. In view of the above, the Tribunal places no weight on this Report.

18. The applicant filed with the Tribunal a written statement dated 7 January 2020. In his statement, he stated that as at 26 October 2017 he had completed all his assignments and other internal requirements and just needed to complete his supplementary exams. He claimed that, as at 1 February 2018, the Holmes Institute did not notify him of the dates for his supplementary exams. He also claimed that the Holmes Institute did not inform him of their intention to cancel his enrolment in the Bachelor of Professional Accounting or of the actual cancellation of his enrolment in this course in breach of the National Code of Practice for Providers of Education and Training to Overseas Students and their own policies. He claimed that the conduct of the Holmes Institute resulted in the cancellation of his Student visa.

19. In his statement dated 7 January 2020, the applicant stated that he received the NOITCC on 12 July 2018 and his visa was cancelled on 24 July 2018. He stated that the Holmes Institute only confirmed the cancellation of his enrolment with the Holmes Institute on 10 July 2018 and made him believe that he was enrolled with the Holmes Institute during that whole period he was waiting to sit the examinations in February 2018 which had been promised to him. He stated that on 19 July 2018 he applied to study a Bachelor of Business Accounting at Southern Cross University and was advised by his education agent that Southern Cross University did not offer a Bachelor of Business Accounting in the July 2018 intake. He stated that his education agent advised him to enrol in a General English course.  

20. In his statement, the applicant stated that he continued to seek enrolment in a Bachelor degree and enrolled in a Bachelor of Business (Accounting) at the Polytechnic Institute Australia commencing 12 November 2018. He stated that he was granted credit for studies he had undertaken at the Holmes Institute and Victoria University and was able to complete his degree on 14 October 2019. He stated that he was always enrolled in a Bachelor degree, except for the period between October 2017 and July 2018 and always complied with condition 8202. He sought consideration of the discretion not to cancel his visa.

21. In his statement, the applicant referred to correspondence between him and Mr Rob Relton, Campus Director, at the Holmes Institute between 17 October 2017 and 1 February 2018. He stated that on 10 July 2018 he received notification of the cancellation of his enrolment due to outstanding fees.

22. The applicant provided the Tribunal with email correspondence between himself and the Holmes Institute. The first email is dated 7 September 2017 and is from the Holmes Institute to the applicant. It refers to outstanding fees and provides details for the payment of the fees. The next email is dated 17 October 2017 and is from the applicant to the Holmes Institute. The title of the email is ‘My exams list and fees issues’. It states, in part, the following:

    I got into Holmes this semester late in week five. I did undertake four subjects of which I paid the fees for two subjects to get enrolled. As it was the last semester (four subjects) that I needed to form for graduating for BPA. There was a situation in this semester that made me distracted from the studies and couldn’t manage to get a grip and pass through this semester.

    The situation was my uncle in Nepal got expired and I had terrible time handling myself up. Due to this I couldn’t manage to attend as many classes as should have and failed to submit assignments. So I was ill prepared to this exam with fees and studies.

    I am convinced to get passed on two subjects which I prepared by all means, on Saturday which I had exams of Accounting Theory and Taxation Law. There was no name in the exam list from which I was denied of giving my exams. My next two exams are on Thursday and Friday of Accounting Theory and Current Issue and Auditing respectively.

    I come to the campus to see you today. However, I was advised that you are busy and I couldn’t schedule an appointment with you. So I request my exams of the subjects to be scheduled as per the campus advise. However, if I could give the exams for Auditing on Friday then it would be less load for later examinations. Moreover, I assure you to pay the fees prior to summer semester. As I am in right situation and I feel that I can make it up for my degree and finance going well very soon. I wish to hear from you.  

23. The response to this email was not provided to the Tribunal. The Tribunal is of the view that this is significant particularly in view of the numerous other emails he has provided the Department and the Tribunal. One possible explanation for this is that the Holmes Institute did not respond to this email which the Tribunal considers to be unlikely in view of all the email correspondence from the Holmes Institute provided to the Tribunal. Another possible explanation is that the response does not support the applicant’s assertion that he was not informed of the Holmes Institute’s intention to cancel his enrolment. 

24. The next email provided to the Tribunal is dated 1 February 2018 at 12.12pm from the applicant to Mr Rob Relton, Campus Director, at the Holmes Institute. It stated ‘I haven’t got a reply so came to you for any advise you can give me. I am able to pay fees now. Mr Relton replied at 12.21pm on 1 February 2018 asking ‘what is your question Kuldeep.’ At 12.24pm on 1 February 2018 the applicant responded ‘I am in a situation where I haven’t given my exams for the last semester I studied before summer break because of financial issue. Is it possible to give supplementary exams for one/two subjects I studied and repeat other subjects I studied from March. Please advise me how I can pass BPA before my visa expiry which finishes on July 2018.’

25. The email correspondence indicates that Mr Relton responded at 12.30pm on 1 February 2018 stating ‘Have you paid the fees as required now Kuldeep?’ The applicant responded at 12.36pm ‘please I need an update and exam placement advice. I will pay fees asap. Thanks Rob.’ Mr Relton responded at 12.41pm on 1 February 2018 stating ‘once you have paid the outstanding fee and the future semester fee in full, you can make an application to take supplementary exams.’  There are two further emails that are only partially visible. The first is from the applicant at 12.44pm on 1 February 2018 and states ‘…when will be my supplementary exam.   …to pay for next semester how many subjects.   …due in total. Mr Relton responded at 12.48pm on 1 February 2018 ‘… with the finance staff in the campus.  …one, in October.’ 

26. The next email provided to the Tribunal is from the applicant to Mr Relton and is dated 9 July 2018 at 12.41pm. It stated ‘how much do I need to pay to start the semester next semester. I have some owing from last semester, please advise me. I will pay and is ready to start.’ In his response at 4.47pm on 10 July 2018, Mr Relton stated ‘your course with us was cancelled due to the outstanding fee. Have you been studying since you left Holmes?’. The applicant responded at 4.47pm on 10 July 2018 and stated ‘this is my COE. Was this  cancelled?’

27. Mr Relton responded on at 4.49pm on 10 July 2018 and stated ‘did you pay the full semester fee?’ The applicant responded at 4.49pm on 10 July 2018 and stated ‘I can pay now and will pay for next semester again’. Mr Relton responded at 4.52pm on 10 July 2018 and stated ‘given you have not answered either of my questions, I won’t be corresponding further. All the best.’ The applicant responded at 4.55pm on 10 July 2018 and stated ‘I had my October intake and because of my deferred exam due to non-payment of fees, I have to wait till Feb. So because of some issue in Nepal I wasn’t able to give exams because of non availability of fees. Now I am here to start my course and complete my bachelor degree. I am able to pay all my fees.’

28. In his response on 11 July 2018 at 7.57am, Mr Relton stated as follows:

    Hello Kuldeep. Your last study period with us was the July 2017 semester. The fees for this semester were not finalised by the due date or by the end of the exam period. Following the exam period your COE was terminated for non-payment of fees. You would have received several emails, calls and reminders on the need to have the fees prior to this. Till date, as noted in my earlier email, you have not finalised the outstanding fees and now have a large unexplained gap in your studies. As such, I would encourage you to seek alternative study options going forward. You are no longer a student with us.

29. The applicant responded at 8.09am on 11 July 2018 and stated as follows:

    Thanks for the reply Rob. In relation to that, my exams was deferred to Feb, but only the exams. Because it was my last four subjects I didn’t get enrolled. As because of financial reason I couldn’t pay by Feb as well, I had to stay silent. From Feb to now I have actual unexplained gap to you. In this scenario Rob, as I am too depressed to know that I wont be finishing my degree, for which only four subjects are outstanding. Can you please advise me what I can do. I am really really worried. Thanks.

30. The applicant wrote to Mr Relton again at 8.51am on 11 July 2018 and stated ‘I wish you have found my previous email. I am in a lot of trouble. I am feeling too low here. Any way I can complete my degree. Looking to hear from you’. The applicant wrote to Mr Relton again on 17 July 2018 at 5.07pm and stated ‘Dear Rob. As we have communicated before I want to meet you tmr and talk with you in person. I will come up with by fees payable and related documents. Wish to meet you and looking forward to your response’. Mr Relton responded on 17 July 2018 at 5.13pm and stated ‘please refer to my email dated 11/7/2018’.

31. The applicant responded on 17 July 2018 at 5.14pm and stated ‘I have talked to my GP as well as my doctor. That’s why I want to speak to you now I have asked my friends for the money and borrowed it to pay the fees. I wish you understand and schedule to meet. Please.’ The Tribunal has not been provided with any further correspondence in this chain of correspondence.

32. During the hearing, the applicant gave evidence that the information provided to him by the Holmes Institute was not complete. He stated that they did not communicate with him in relation to his enrolment being cancelled. He stated that he was on his last semester of studies and was enrolled in four subjects. He stated that because of personal issues he was unable to pay his fees. He stated that, when he went for his final examination, it was mentioned that students who could not do their examinations on that day could enrol in February (2018).

33. The applicant stated that he contacted the Holmes Institute and was given vague answers. He stated that he got an answer in February (2018). He stated that when he asked the campus director “for enrolment or to do exam”, he told him that he had not been enrolled since July (2017). He stated that he paid the full fees. He stated that he did everything he could to enrol and complete the course. He stated that he wanted to complete his course. He stated that his aim was to finish his degree in Australia. He stated that he paid his fees in July 2018. He stated that he got no suggestions (from Mr Relton).

1. The applicant stated that he received a call from the Department informing him that he was  no longer a student. He stated that he asked what the rules were and was informed. He stated that he tried to contact the Campus Director (Mr Relton). He stated that Mr Relton did not communicate with him face to face. He stated that he went to his lawyer who wrote a response to the Department. He stated that he then received notification of the cancellation of his Student visa. He stated that he was trying to complete his course. He stated that he tried to enrol in another institution and had submitted proof.

2. The applicant stated that in November 2018 he got into the Polytechnic Institute Australia. He stated that he was given advance credit towards his degree and needed to do 13 units. He stated that he completed the Bachelor of Business degree in a year. He stated that he was not informed that his COE was cancelled. When asked whether there was any period that he says he was not enrolled in a registered course, he responded yes. He stated that the Holmes Institute says he was not enrolled since October (2017). He stated that he does not have any evidence of being informed of this. 

3. The Tribunal asked the applicant why he did not pay his fees to the Holmes Institute on time. He stated that his parents sponsored his studies in Australia. He stated that there were times when things went wrong over which he did not have any control. He stated that, in those scenarios, it was difficult for him to pay the fees. He stated that his uncle died and a friend’s mother died and he was distracted. He stated that he was going through a tough time and could not pay the fees before the examinations. He stated that he was communicating with Student Services. He stated that his family is now “back to level” and could sponsor him.

4. The Tribunal asked the applicant whether there was any other reason why he could not pay his fees. He responded that his family sponsored his studies and things happened in his country that he did not have control over. When asked what things he was referring to, he responded that his brother was studying a Bachelor degree in Nepal. He stated that there were factors relating to health. He stated that his grandmother was ill and his mother was also sick during that period. He stated that it is not about why he could not pay the fees.

5. The Tribunal asked the applicant why his uncle’s death prevented him from paying his fees. He responded that it was not financial and was an emotional attachment. He stated that it was difficult for him to ask his parents to pay his fees. The Tribunal noted that his parents sent him to Australia to study. When asked whether they stopped paying his fees, he responded no. When asked what he did with the money they sent for his fees, he responded that they did not send him money because there was a problem. When asked about the problem, he responded that there were scenarios. He stated that he did not push them much to help him to pay the fees. He stated that he did not want to give them pressure.

6. The applicant gave evidence to the Tribunal that he has about twenty family members living in Australia including a brother-in-law and cousins. He stated that he lives with two cousins. He stated that, other than for two of them, the others are Australian citizens. He stated that some of them have lived here for more than 10 years and others for more than 15 years. The Tribunal asked him why he did not ask his relatives for help if he could not pay his fees. He responded that he came here on a Student visa and does not have dependents. He stated that he tried to get help. He stated that everyone is working and has liabilities. He stated that he rather rely on himself and his parents. He stated that he knows what would happen if he asked them to help him with his fees. He stated that he asked his friends.   

7. The applicant stated that he could not undertake his examinations in October 2017 because he did not pay his fees. He stated that he was able to do his examinations in February 2018 and that is why he was not enrolled between October 2017 and February 2018. The Tribunal asked him what he thought would happen if he did not pay his fees and did not study. He responded that when he was at Victoria University, he was notified that his COE would be cancelled within 20 days. He stated that he could appeal. He stated that in this case he did not know. He stated that if he knew he would have got another COE.  

8. The Tribunal asked the applicant whether he paid the outstanding fees before the examinations in February 2018 and he answered no. He stated that he received no communication. He stated that he tried to communicate and pay the fees. The Tribunal asked him why he thought he could do the examinations in February 2018 if he had not paid the fees. He responded that in October 2017 he was unable to do the examinations and students were told that those who did not do the examinations in October 2017 could do them in February 2018.

9. The Tribunal pointed out to the applicant that he still needed to pay the fees in order to do the examinations in February 2018. He responded that there should be a way he would be eligible to do the examinations. He stated that during every communication he had between October 2017 and February 2018 he tried to get an (examination) schedule. When asked why he thought he would get an examination schedule if he had not paid the fees, he responded that he was not able to pay the fees in February 2018. He stated that he was trying to communicate with the Campus Director (at the Holmes Institute) to find out what was happening with the enrolment.

10. The applicant stated that he was still in contact with the Campus Director and did not think that was right. He stated that he is in this situation because there was not enough communication from the Holmes Institute in relation to his enrolment and examinations. He stated that he would rather have forms of communication in relation to the cancellation and being able to undertake the examinations even though he only paid half the fees.  

11. The Tribunal has a number of concerns in relation to the applicant’s explanation for why he did not pay his fees to the Holmes Institute, his evidence in relation to the payment of his fees, his claims that he was unaware that he was not enrolled at the Holmes Institute until July 2018 or, alternatively, February 2018 and his claim that he was told that he could sit the examinations in February 2018. There are a number of contradictions within his oral evidence and inconsistencies between his oral evidence and the written evidence provided by him.

12. The applicant provided the Tribunal with an email dated 17 October 2017 from him to the Holmes Institute in which he stated that “there was a situation” that distracted him from his studies. He stated that the situation was that his uncle passed away, he had a “terrible time handling” himself, could not attend classes, failed to submit assignments and was ill prepared for the examinations in relation to his studies and paying fees. In his response to the NOITCC, his migration agent submitted that he was unable to pay his fees due to financial hardship caused by a dispute in his parents’ marital relationship.

13. The applicant provided evidence to the Department in the form of a Report dated 16 July 2018 from Mr Hamid Dadgostar, Psychologist. In his report, Mr Dadgostar set out the history given by the applicant including that in August 2017 his parents were going through a divorce and this resulted in a lack of funds from his parents for his enrolment. This explanation for why he did not pay his fees is different from the explanation he gave the Holmes Institute.

14. When the Tribunal asked the applicant why he did not pay his fees, his response was vague and his explanation kept changing. He initially stated that his parents sponsored his studies in Australia, there were times when things went wrong over which he had no control and it was difficult for him to pay the fees. He then stated that his uncle died and a friend’s mother died and he was distracted, going through a tough time and could not pay the fees before the examinations. When asked why his uncle’s death prevented him from paying his fees, he responded that it was not financial and was an emotional attachment.

15. The Tribunal asked the applicant whether there was any other reason why he could not pay his fees. He responded that his grandmother was ill and his mother was also sick during that period. He stated that it was difficult for him to ask his parents to pay his fees. When asked whether his parents stopped paying his fees, he responded no. He then stated that they did not send him money because there was a problem. When asked about the problem, he responded that there were scenarios. He stated that he did not push them much to help him to pay the fees because he did not want to put them under pressure.

16. These inconsistencies in the applicant’s explanations for why he could not pay his fees raise concerns in relation to his credibility as a witness and the veracity of the different explanations he has provided to the Holmes Institute, the Psychologist he consulted and to the Tribunal. The Tribunal raised this as an issue with the applicant and he provided a long rambling response that did not address the issue. 

17. The applicant’s evidence in relation to how much of his tuition fees he paid to the Holmes Institute is also inconsistent. In his response to the NOITCC, his migration agent submitted that he paid half his tuition fees at the time of enrolment but could not pay the rest until July 2018 due to financial hardship. The applicant provided the Tribunal with a copy of his COE from the Holmes Institute which stated that he had enrolled in a Bachelor of Professional Accounting from 21 August 2017 to 31 December 2018 and had paid his tuition fees from 21 August 2017 to 1 September 2017. This was clearly not half of his tuition fees.

18. In his evidence to the Tribunal, the applicant stated that he was unable to pay his fees due to personal issues. He stated that he paid his fees in full in July 2018. The email correspondence between him and the Holmes Institute, referred to above, clearly indicate that the fees were still outstanding as at 11 July 2018. He has provided the Tribunal with a large volume of supporting documents but has not provided the Tribunal with a receipt for the payment of his outstanding fees to the Holmes Institute.  

19. The applicant’s claims that he was told that he could sit the examinations in February 2018 and he was unaware that he was not enrolled at the Holmes Institute until July 2018 are also inconsistent with the evidence. 

20. In his written statement to the Tribunal dated 7 January 2020, the applicant stated, in part, the following:

    On or before 26 October 2017, I had completed and attempted all my assignments and other internal requirements for the unit completion at Holmes Institute. I just needed to finish my supplementary exam which Holmes Institute has failed to conduct …..”   

21. This statement is not consistent with the applicant’s own emails to the Holmes Institute dated 17 October 2017 and 9 July 2018. On 17 October 2017, he stated that he started the July (2017) semester late, enrolled in four subjects, paid fees for two subjects and due to his uncle’s death he was distracted from his studies, did not attend many classes, failed to submit assignments, was ill prepared for the examinations and fees and did not “pass through this semester”. In his email dated 9 July 2018, he inquired about how much he needed to pay in fees for the next semester and stated that he still had outstanding fees from the last semester.

22. In view of the above, the applicant had clearly not completed all assignments and internal requirements, such as the payment of outstanding fees, to complete his studies at the Holmes Institute (other than doing a supplementary exam) by 26 October 2017.

23. The applicant sent an email to the Holmes Institute at 12.24pm on 1 February 2018 stating that he did not do his examinations in the semester prior to the summer break and inquired whether it was possible to do supplementary examinations for one/two subjects he studied and repeat other subjects he studied, from March (2018). He sought advice on how he could pass his Bachelor of Professional Accounting degree before his Student visa expired in July 2018.

24. This email from the applicant tends to indicate that he had not been told that he could sit supplementary examinations in February 2018 and was only making inquiries in February 2018 as to whether it was possible to do so. If he had been told that he could do supplementary examinations in February 2018 and he was inquiring as to when they were going to be held as he claims, the Tribunal would expect his email to the Holmes Institute to reflect this. The Tribunal would also expect him to have provided the Tribunal with evidence from the Holmes Institute in relation to him undertaking supplementary examinations in February 2018. Despite providing the Tribunal with a large volume of supporting documents, he has not provided the Tribunal with this evidence.

100.   In his response to the NOITCC, the applicant’s migration agent submitted “Mr Kunwar further contacted Holmes Institute on 10 July 2018 and requested re-enrol and paid his outstanding fees, then only Holmes Institute Sydney inform Mr Kunwar that his enrolment with Holmes Institute Sydney is ceased.” (sic) The Tribunal finds this submission to be internally inconsistent. It raises the issue of why the applicant contacted the Holmes Institute on 10 July 2018 to request re-enrolment if he was not aware that his enrolment had been cancelled.

101.   Later in the response to the NOITC, the applicant’s migration agent submitted that “he was always under the assumption until February 2018 that he was enrolled with Holmes Institute Sydney.” This submission is not consistent with the earlier submission that the Holmes Institute only informed him on 10 July 2018 that his enrolment had been cancelled. 

102.   During the hearing, the applicant gave evidence that he could not sit his examinations in October 2017 because he had not paid his fees. He stated that he was able to do his examinations in February 2018 and that is why he was not enrolled between October 2017 and February 2018. This tends to indicate that he was fully aware of the fact that he was not enrolled at the Holmes Institute between October 2017 and February 2018 prior to either February 2018 or July 2018.

103.   In the email correspondence between the applicant and Mr Relton, Campus Director at the Holmes Institute referred to above, Mr Relton wrote to the applicant at 7.57am on 11 July 2018 and stated “following the exam period your COE was terminated for non-payment of fees. You would have received several emails, calls and reminders on the need to have the fees prior to this.” In his response to this email at 8.09am on 11 July 2018, the applicant stated “my exams was deferred to Feb, but only the exams. Because it was my last four subjects I didn’t get enrolled. As because of financial reason I couldn’t pay by Feb as well, I had to stay silent”. (sic)

104.   This exchange of emails indicates that the applicant, having enrolled in the trimester commencing July 2017, decided not to enrol in the following trimester as he was again unable to pay his fees. He would therefore have been aware that he was not enrolled in a registered course from October 2017 onwards. Further, in his response at 8.09am on 11 July 2018, he did not deny receiving several emails, calls and reminders from the Holmes Institute. The Tribunal would expect that if he had not received them, he would have said so in his response.

105.   The Tribunal raised this as an issue with the applicant. He responded that he knows where the Campus Director is coming from and why he stated that he would have got several emails. He stated that he was still confused why his enrolment was cancelled in October 2017 when his examinations were in February 2018. He stated that if he got “the chance to react to cancellation” he would have done so. He stated that things were not clear and he was not able to do anything about the cancellation. He stated that there were some emails in relation to the payment of tuition fees. He stated that in some semesters, he still got emails even after he paid the fees. He questioned whether the College should not be doing their best to help him to study. He stated that general emails were sent to him. He stated that they did not give him a proper indication of what would happen. He stated that he only knew about it in July which was a problem. He stated that because of that he is in this position.

106.   The applicant’s evidence that in some semesters he got emails even after he paid the fees is not consistent with the evidence before the Tribunal. The evidence before the Tribunal is that he only enrolled in one trimester at the Holmes Institute, in relation to his Bachelor of Professional Accounting, and this was the trimester commencing July 2017. His evidence is that he started his studies five weeks after the trimester commenced. His evidence is that he enrolled in four subjects but only paid for two subjects at the time of enrolment. His COE indicates that he only paid his fees from 21 August 2017 to 1 September 2017.

107.   In view of the above, the Tribunal does not accept that the applicant was unaware until February 2018 or, alternatively, until July 2018 that he was not enrolled in a registered course. His email to Mr Renton dated 11 July 2018, stated “my exams was deferred to Feb, but only the exams. Because it was my last four subjects I didn’t get enrolled. As because of financial reason I couldn’t pay by Feb as well, I had to stay silent”. (sic) This tends to indicate that he was aware that he was not enrolled in a registered course from at least October 2017 to 11 July 2018. His evidence to the Tribunal was that he was aware that his Student visa was subject to a number of conditions and that if he was not enrolled in a registered course, he would be in breach of condition 8202 of his visa.

1. Following the hearing, the Tribunal wrote to the Holmes Institute on 10 January 2020 and requested information from them pursuant to s.359(1) of the Act. The Holmes Institute responded on 20 January 2020 and included copies of correspondence with the applicant in their response. The Tribunal wrote to the applicant on 21 January 2020, pursuant to s.359A of the Act, and put the following information to him:

   In conducting the review, we are required by the Migration Act 1958 to invite you to

   comment on or respond to certain information which we consider would, subject to

   your comments or response, be the reason, or a part of the reason, for affirming the

   decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   1. The Tribunal is in receipt of correspondence from the Holmes Institute to you

   which indicates that on 23 August 2017 the Holmes Institute wrote to you in

   relation to your outstanding fees. The letter states in part “a review of our

   records indicates that as at 1/9/2017 your enrolment will no longer be active.

   An additional payment of tuition fees will be required to continue your

   enrolment beyond this date. A late fee of $220.00 will apply if payment is not

   received by the due date. Failure to maintain a current enrolment is a breach

   of your Student visa and may result in Holmes Institute reporting you to the

   Department of Industry, Innovation, Science, Research and Tertiary Education

   (DIISRTE formerly DEEWR) for not meeting the conditions of your Student

   visa. This could result in the cancellation of your Student visa. Any questions

   regarding your fees should be directed to Student Services at the campus

   where you are studying. Please do NOT reply to this email. NOTE: All students

   have access to the “Student Complaints, Disputes and Appeals Procedure”

   available at and in the Student Handbook. This letter was

   sent to you by email to your student email address on 23 August 2017 at

   11.04am.

   2. On 30 August 2017, the Holmes Institute wrote to you in relation to your

   outstanding fees and noted that it was a final reminder. The letter states in part

   “a review of our records indicates that as at 1/9/2017 your enrolment will no

   longer be active. An additional payment of tuition fees will be required to

   continue your enrolment beyond this date. A late fee of $220.00 will apply if

   payment is not received by the due date. Failure to maintain a current

   enrolment is a breach of your Student visa and may result in Holmes Institute

   reporting you to the Department of Industry, Innovation, Science, Research

   and Tertiary Education (DIISRTE formerly DEEWR) for not meeting the

   conditions of your Student visa. This could result in the cancellation of your

   Student visa. Any questions regarding your fees should be directed to Student

   Services at the campus where you are studying. Please do NOT reply to this

   email. NOTE: All students have access to the “Student Complaints, Disputes

   and Appeals Procedure” available at and in the Student

   Handbook. This letter was sent to you by email to your student email address

   on 30 August 2017 at 2.57pm.

   3. On 6 September 2017, the Holmes Institute wrote to you in relation to your

   outstanding fees and noted that there was a serious breach. The letter states in

   part “a review of our records indicates your fees are now seriously overdue and

   you no longer have a current enrolment at Holmes Institute. Unless your fees

   are paid in the next 7 days we will have no alternative but to report you to the

   Department of Industry, Innovation, Science, Research and Tertiary Education

   (DIISRTE formerly DEEWR) for not meeting the conditions of your Student

   visa. Any questions regarding your fees should be directed to Student

   Services at the campus where you are studying. Please do NOT reply to this

   email. NOTE: All students have access to the “Student Complaints, Disputes

   and Appeals Procedure” available at and in the Student

   Handbook. This letter was sent to you by email to your student email address

   on 6 September 2017 at 11.58am.

   The Holmes Institute has informed the Tribunal that, in addition to these

   emails, numerous attempts were made to call and SMS you regarding

   outstanding fees. The Tribunal has also been informed that you did not

   exercise your rights to make an internal or external appeal at any stage.

   The Holmes Institute has informed the Tribunal that there is no record of a

   conversation between you and an officer of the Holmes Institute informing you

   that you were unable to sit the examinations in October 2017 but could sit them

   in February 2018. The Tribunal was informed that this sort of scenario would

   only be applicable if a student had actually updated their enrolment status and

   made a successful appeal. The Tribunal was informed that this was not the

   case in relation to you.

   This information is relevant to the review because the Tribunal may find that you were

   informed by the Holmes Institute in writing on 23 August 2017, 23 August 2017 (should be 30 August 2017) and 6 September 2017 that you had outstanding fees and were given an opportunity to pay the outstanding fees. The Tribunal may find that you were informed in writing on 23 August 2017 and 30 August 2017 that your enrolment would be ineffective from 1 September 2017, if the outstanding fees were not paid, that failure to maintain a current enrolment is a breach of your Student visa, that the Holmes Institute may report you to the DIIRTE for not meeting the conditions of your Student visa, that this

   could result in the cancellation of your Student visa and that you were referred to the

   “Student Complaints, Disputes and Appeals Procedure” available at

   and in the Student Handbook contrary to your evidence to the

   Tribunal.

   The Tribunal may find that you were informed in writing on 6 September

   2017 that your enrolment at the Holmes Institute was cancelled and that the Holmes

   Institute will have no alternative but to report you to DIISRTE for not meeting the

   conditions of your Student visa. The Tribunal may find that you did not exercise your

   rights to an internal appeal or an external appeal and that you were not informed by
   the Holmes Institute that you could not sit the examinations in October 2017 but could
   sit them in February 2018 as claimed before the Tribunal.

   If we rely on this information in making our decision, we may find that you have
   breached condition 8202 of your Student visa and that your Student visa should be
   cancelled.

   You are invited to give comments on or respond to the above information in writing.
   Your comments or response should be received by 4 February 2020. If the
   comments or response are in a language other than English, they must be
   accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 4 February 2020, you
   may ask us for an extension of time in which to provide the comments or response. If
   you make such a request, it must be received by us before 4 February 2020 and you
   must state the reason why the extension of time is required. We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

109.   On 4 February 2020, the Tribunal received an email from the applicant’s migration agent enclosing correspondence between him and the Holmes Institute and a detailed response from the applicant.

1. The Tribunal wrote to the applicant again on 27 July 2020, pursuant to s.359A of the Act, and put the following information to him:

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   The Tribunal is in receipt of information from the Holmes Institute that the emails sent to your student email address were auto generated warning emails. This includes an email sent to you on 13 September 2017 which was a Notice of Intention to Report you to the Department of Industry Innovation, Science, Research and Tertiary Education. This email also indicates that your COE will be cancelled, sets out your appeal rights, the time frame within which appeals must be lodged and the procedure that is followed. A copy of this email is enclosed for your information.

   The Tribunal is in receipt of information from the Holmes Institute that you were referred to its complaints and appeals policy of the Holmes Institute in correspondence with you and that at no stage did you exercise your rights to lodge an internal or external appeal.

   This information is relevant to the review because the Tribunal may find that you were informed by the Holmes Institute in writing of its intention to cancel your COE and that you did not exercise your rights to lodge an internal appeal or an external appeal against this decision. If we rely on this information in making our decision, we may find that you have breached condition 8202 of your Student visa and that your Student visa should be cancelled.

   You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 10 August 2020. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide your written comments or response by 10 August 2020, you

   may ask us for an extension of time in which to provide the comments or response. If

   you make such a request, it must be received by us before 10 August 2020 and you

   must state the reason why the extension of time is required. We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

111.   On 10 August 2020, the Tribunal received a detailed response together with supporting documents from the applicant’s representative.

112.   In his response dated 4 February 2020, the applicant stated that “the Holmes Institute Sydney has provided completely inaccurate and falsified information to the Tribunal and I have no knowledge of such information being sent to me by Holmes Institute Sydney”. This is a serious allegation to make particularly against a large and long-established education provider like the Holmes Institute.

113.   In support of his assertion against the Holmes Institute, the applicant referred to email correspondence from the Holmes Institute to him dated 9 August 2017, 23 August 2017 and 30 August 2017. He stated that on 9 August 2017 the Holmes Institute sent him a Letter of Offer to his personal email address. As he was not enrolled at the Holmes Institute on that date and did not have a student email address, it is to be expected that the Holmes Institute would have to correspond with him to his personal email address. The Tribunal does not accept that this is evidence that the Holmes Institute falsified the letters it provided to the Tribunal.

114.   The applicant referred to a different email sent to him at 4.51pm on 23 August 2017 from Student Services at the Gold Coast Campus of the Holmes Institute sending him a COE. He questioned why the Holmes Institute would have sent him an email at 11.04am on 23 August 2017 from the Student Accounts Office at the Melbourne Campus of the Holmes Institute about outstanding fees on the first date of his enrolment and prior to the COE being sent to him. He submitted that the email about outstanding fees was sent to him before he was enrolled.

115.   In submissions to the Tribunal dated 10 August 2020, the applicant’s representative submitted that the applicant was misled because he received two “strikingly different” messages from the Holmes Institute on the same day (23 August 2017). She also submitted that the applicant did not receive the first email dated 23 August 2017 and it was falsified because it was sent before the applicant was formally enrolled at the Holmes Institute. She submitted that the first email dated 23 August 2017 was sent from Melbourne and the second email dated 23 August 2017 was sent from the Gold Coast and they contradict each other. She submitted that there may have been miscommunication between internal branches that led to a student receiving two emails on the same date “meaning completely different things”.

116.   The applicant’s representative also submitted that the email dated 23 August 2017 from the Student Accounts Office at the Holmes Institute was sent from Melbourne and that the telephone number is different. She also noted that emails from the Holmes Institute are from four different addresses. The Tribunal does not accept that this is evidence that the emails from the Holmes Institute provided to the Tribunal were falsified. The Holmes Institute is a large education provider with campuses in Sydney, Melbourne, Brisbane and the Gold Coast. It is not unusual for large organisations to split administrative functions such as Student Accounts and Student Services into different offices that are located in different branch offices/campuses. 

117.   The applicant’s evidence is that he was five weeks late in enrolling at the Holmes Institute in 2017. He has provided the Tribunal with an email dated 9 August 2017 that he received from Student Services at the Sydney Campus of the Holmes Institute requesting that he attend the Campus on 11 August 2017 for enrolment. He did not enrol until 23 August 2017.

118.   In her response dated 10 August 2020, the applicant’s representative stated that the applicant had provided a screenshot for “half payment” being payment of the tuition fees for two out of four subjects that were fully paid as at 8 August 2017. The screen shot was not provided to the Tribunal. It was also submitted that the full fees for the Bachelor of Professional Accounting degree was $22,200.00 and the applicant had paid half of this amount as at 8-9 August 2017. No receipt or bank statement was provided to support this submission. This submission contradicts the applicant’s own evidence, that he was unable to sit the examinations in October 2017 because he had not paid the fees, and his COE.

119.   The applicant has provided the Tribunal with a copy of the Letter of Offer and Offer Acceptance Form from the Holmes Institute dated 9 August 2017. It indicates, in relation to the fee structure, that the Bachelor of Professional Accounting degree commenced on 10 July 2017 and concluded on 31 December 2018. It indicates that his total fees for this degree was $22,200.00 and that this was divided into three payments of $7,400.00 each over three trimesters. It indicates that the first trimester ended on 20 October 2017. Under Terms and Conditions it includes, in part, the following:

Fees are due and payable according to the accompanying Letter of Offer. Deposit is due on acceptance of the offer. Fees for subsequent study periods are due two weeks prior to the commencement of the study period. Failure to make payment by the due date will incur additional late fees. Unpaid fees will result in the cancellation of a student’s enrolment at the end of an appeals process. International students are required to demonstrate to the Australian Government sufficient funds to cover their studies in Australia. As such financial hardship is not considered grounds for appeal. A fee of $300.00 will be levied on students who fail to make payments by the required date and where an enrolment has to be reinstated after cancellation.

120.   The applicant has provided the Tribunal with a copy of his COE for the Bachelor of Professional Accounting degree at the Holmes Institute. It indicates that his total fees for this degree was $22,200.00. It indicates that, as at 23 August 2017, he had paid the sum of $3,700.00 being his tuition fees for the period 21 August 2017 to 1 September 2017.  

121.   The above evidence indicates that the applicant was late in contacting the Holmes Institute, obtaining a Letter of Offer and enrolling in the Bachelor of Professional Accounting degree. The trimester commenced on 10 July 2017 and he enrolled on 23 August 2017. At the time of enrolment, he paid a deposit of $3,700.00 rather than the full trimester fee of $7,400.00. The Terms and Conditions of the Acceptance of Offer required him to pay the fees for the trimester two weeks prior to the commencement of the study period. The study period commenced on 10 July 2017. By the time he enrolled on 23 August 2017, his fees were already overdue.

122.   The two emails dated 23 August 2017 were sent to the applicant from different sections in Administration in the Holmes Institute. The first email was from the Student Accounts Office in Melbourne and the second was from the Student Services Office on the Gold Coast. The applicant enrolled at the Sydney Campus of the Holmes Institute. It is entirely possible that when his details were uploaded onto the computer system at the time of enrolment, a letter in relation to the payment of outstanding fees was autogenerated from the Student Accounts Office in Melbourne. The evidence before the Tribunal indicates that the deadline for students to pay any outstanding fees for that trimester was 31 August 2017.

123.   There is no claim that the second email dated 23 August 2017 and sent at 4.51pm was autogenerated. It is therefore entirely possible that a COE was sent to the applicant from the Student Services Office on the Gold Coast later in the day on 23 August 2017 to confirm his enrolment at the Sydney Campus. The Tribunal does not accept that the fact that the email enclosing his COE was sent at 4.51pm on 23 August 2017 is evidence that he was enrolled at 4.51pm on 23 August 2017 as claimed by the applicant and his representative. It follows that the Tribunal does not accept that he was not formally enrolled at the time the first email dated 23 August 2017 was sent to him at 11.04am. The Tribunal does not accept that the email sent by the Holmes Institute at 4.51pm on 23 August 2017 is evidence that the Holmes Institute falsified the letters that it provided to the Tribunal.

124.   In his response dated 4 February 2020, the applicant relied on an email dated 30 August 2017 sent at 8.55am to his personal email address from Mr Rob Relton, Campus Director, at the Sydney Campus of the Holmes Institute as evidence that the Holmes Institute falsified the letters that it provided to the Tribunal. This email reminds him that his trimester fee was due on 31 August 2017. It indicates that students who have not finalised their fees in full by 5.00pm on 31 August 2017 would incur a late fee of $330.00 as noted in the payment plan signed at the commencement of his studies. This tends to indicate that, instead of paying the trimester fee in full on 23 August 2017, the applicant had entered into a payment plan to pay it off in instalments with the final payment being made on or before 31 August 2017 and he had agreed to pay a late fee of $330.00.

125.   In his submission dated 4 August 2020, the applicant stated that having sent him the above email at 8.55am on 30 August 2017 it is unlikely that the Holmes Institute would have sent him another email at 2.57pm on 30 August 2017 in relation to his outstanding fees and that his enrolment would not be longer active after 1 September 2017 unless an additional payment of tuition fees was paid to continue his enrolment beyond that date. He stated that the emails provided contradictory information in relation to the due date and the amount of the late fee.

126.   In submissions to the Tribunal dated 10 August 2020, the applicant’s representative submitted that the emails did not state the due date clearly and she could only assume that it was either 31 August (2017) or 1 September (2017).

127.   The first email sent at 8.55am on 30 August 2017 was sent by Mr Rob Relton, Campus Director at the Sydney Campus, and indicates that the due date for payment of the fees is 31 August 2017. This is very clearly stated and there is no ambiguity. The second email sent at 2.57pm on 30 August 2017 was sent from the Student Accounts Office at the Melbourne Campus. It indicates that as at 1 September 2017 the applicant’s enrolment would no longer be active unless his fees were paid. His COE indicates that his fees were only paid until 1 September 2017. The due date for payment of fees and the date when his enrolment expires are two separate issues and the Tribunal does not accept that this information is contradictory.

128.   It is entirely possible that two emails could have been sent to the applicant on 30 August 2017, particularly if the second email was auto generated, as they were sent from different offices in different campuses in different States. The first email focussed on the payment of fees by 31 August 2017 and the second email informed him that the consequences of not paying his fees on time was that his enrolment ceased on 1 September 2017.

129.   The first email dated 30 August 2017 from Mr Relton refers to a late fee of $330.00 and the second autogenerated email dated 30 August 2017 refers to a late fee of $220.00. This is certainly inconsistent information. The applicant has provided to the Tribunal earlier emails he received dated 25 August 2017 and 28 August 2017 from the Sydney Campus of the Holmes Institute which also refer to a late fee of $330.00. There are several possible explanations for this inconsistency in the amount of the late fee. One being that the late fee had been increased to $330.00 and the auto generated letter had not been updated. Another being that the late fee in Sydney was higher than the late fee in Melbourne although this is unlikely. Whilst this is speculation on the part of the Tribunal, it indicates that there are many possible explanations for the inconsistency besides the falsification of documents.

130.   In her response dated 10 August 2020, the applicant’s representative submitted that the inconsistencies in the documents add up to “miscommunication and falsities imposed by Holmes on Mr Kunwar, and led to the breakdown of his studies, focus, his time, cost and efforts, and general well being whilst his parents were not paying him his fees due to their marriage breakdown”. The Tribunal has difficulty accepting this submission in view of the many inconsistencies and contradictions in the applicant’s evidence in relation to why he did not pay his fees. (see paragraphs 86-91 above).

131.   The Tribunal does, however, accept that the inconsistency in the emails from the Holmes Institute in relation to the amount of the late fee may have been confusing if the applicant was seeking to pay the outstanding fees. This could have been resolved by a telephone call to the Holmes Institute. The Tribunal is not satisfied that this inconsistency in the amount of the late fee is evidence that the Homes Institute has been involved in fraudulent activities. The Tribunal does not accept that this is evidence that the Holmes Institute falsified the letters it sent to the Tribunal as claimed by the applicant and his representative.  

132.   The applicant has provided the Tribunal with emails he received from the Sydney Campus of the Holmes Institute dated 25 August 2017, 28 August 2017, 29 August 2017 and 30 August 2017 reminding him that the deadline to pay his outstanding fees was 31 August 2017. The evidence from the Holmes Institute is that, when the outstanding fees were not paid by 31 August 2017, they sent the applicant an email on 6 September 2017. This email informed him that he no longer had a current enrolment at the Holmes Institute and unless his fees were paid in the next 7 days, they had no alternative but to report him to the Department of Industry, Innovation, Science, Research and Tertiary Education.

133.   The email dated 6 September 2017 refers to the Students Complaints, Disputes and Appeals Procedure and provides a link to the website. In his response dated 4 February 2020, the applicant denied receiving this email. He stated that he received an email from the Holmes Institute dated 11 September 2017 requesting him to resolve outstanding fees.

134.   The email from the Holmes Institute dated 11 September 2017 is different to the emails dated 25 August 2017, 28 August 2017, 29 August 2017 and 30 August 2017 in that it states that the records indicate that there is an outstanding payment due for the balance of his trimester fees, this needed to be resolved right away and that further action would commence that week if he continued to have fees owing. It requests him to contact David or Ferbina on level 6 to confirm the amount owing and make arrangements to pay the outstanding fee. It states “you must act on this matter now” and “you must report to the campus.”

135.   The applicant stated that upon receipt of the email dated 11 September 2017 he went to the Holmes Institute and spoke to Ferbina. He stated that he was told by Ferbina that he could sit the final examinations but his results would be put on hold until his outstanding fees were paid. In submissions dated 10 August 2020, his migration agent submitted that he has evidence that he attended the Holmes Institute in person on 11 September 2017 and entered into a payment plan. The Tribunal would expect that, having been told that further action would commence that week, he would have obtained something in writing from the Holmes Institute to confirm the payment plan and to ensure that further action was not commenced. He did not provide the Tribunal with any evidence that the issue of his outstanding fees was resolved with the Holmes Institute on 11 September 2017.

136.   The evidence before the Tribunal is that the Holmes Institute sent the applicant a Notice of Intention to Report him to the Department of Industry Innovation, Science, Research and Tertiary Education on 13 September 2017. This tends to indicate that there was no payment plan and the issue of payment of the outstanding fees had not been resolved on 11 September 2017 as claimed by the applicant. Further, the fact that he was prevented from sitting the examinations in October 2017 is inconsistent with his claim that an arrangement was entered into on 11 September 2017 that he could sit the examinations in October 2017 and pay his outstanding fees later.

137.   These issues raise concerns in relation to the veracity of the claim made by the applicant that he entered into an arrangement with the Holmes Institute on 11 September 2017 to resolve the issue of his outstanding fees. In view of the Tribunal’s concerns in relation to his credibility as a witness, referred to above, the Tribunal is not satisfied that he entered into an arrangement with the Holmes Institute on 11 September 2017 to resolve the issue of his outstanding fees. 

138.   In his response dated 4 February 2020, the applicant stated that the email dated 11 September 2017 from the Holmes Institute is inconsistent with their email dated 6 September 2017 and that this indicates that they did not send him the email dated 6 September 2017. The Tribunal does not accept this submission for the following reasons. The email dated 6 September 2017 informed him, among other things, that unless his fees were paid in the next 7 days, they had no alternative but to report him to the Department of Industry, Innovation, Science, Research and Tertiary Education.

139.   The statement in the email dated 11 September 2017 that further action would commence that week was a direct reference to the 7-day deadline in the email dated 6 September 2017. The sense of urgency conveyed in the email dated 11 September 2017 with statements like “you must act on this matter now” and “you must report to the campus” also tends to indicate that the email dated 6 September 2017 was sent to the applicant and the deadline for reporting him to the Department of Industry, Innovation, Science, Research and Tertiary Education was fast approaching.

140.   In her response dated 10 August 2020, the applicant’s representative submitted that the email dated 11 September 2017 from the Sydney Campus Director did not refer to appeal rights, did not “state any such clear words akin to an ‘intent to report’ or ‘intent to cancel enrolment by …. date’, nor does it state any substance on the action that will commence during that week,” does not refer to an intention to suspend and does not refer to the ‘Complaints and Appeals policy”. The evidence before the Tribunal is that the Holmes Institute wrote to the applicant on 6 September 2017 referring to some of these matters. There was therefore no need to repeat it in their email dated 11 September 2017 and, in any event, the 7 days deadline provided on 6 September 2017 had not expired by 11 September 2017 so a Notice of Intention to Report could not be issued.

141.   The evidence before the Tribunal is that the Holmes Institute wrote to the applicant on 13 September 2017 with a Notice of Intention to Report him to the Department of Industry Innovation, Science, Research and Tertiary Education, informed him of his rights to lodge an appeal and that he had 20 days within which to do so (as per the requirements under Standard 13 of the National Code 2017). The evidence before the Tribunal from the Holmes Institute is that he did not exercise his right of appeal. The applicant claims that he did not receive this email and therefore could not exercise his right of appeal. This issue is dealt with below.

142.   The applicant claimed that he received an email on 6 October 2017 from Mr Relton and questioned why he would have received this email if he was no longer enrolled. The email dated 6 October 2017 is a generic email providing information about the final examinations to be held between 13 October 2017 and 21 October 2017. Other email correspondence from Mr Relton indicates that the applicant was reported to the Department of Industry Innovation, Science, Research and Tertiary Education after the end of the examination period on 21 October 2017.

143.   The email dated 13 September 2017 from the Holmes Institute gave the applicant 20 days in which to exercise his right of appeal. The email dated 6 October 2017 is just after the end of that 20-day period. Whilst the Holmes Institute was able to report the applicant to the Department of Industry Innovation, Science, Research and Tertiary Education immediately after the expiration of the 20 day period, if he had not exercised his right to an internal and external appeal, it appears that they delayed doing so and gave him another opportunity to pay his outstanding fees and sit his examinations. The Tribunal does not accept that the issue of the email dated 6 October 2017 supports his assertion that the Holmes Institute falsified the emails that they provided to the Tribunal. 

144.   In her response dated 10 August 2020, the applicant’s representative submitted that the Holmes Institute “deliberately placed the student in two minds. One is that from September 2017 to February 2018 – the message is that if you pay you will sit the exams. Yet to the Department its message is within the same timeframe, markedly different - the student is no longer a student but at what point?” She submitted that the Holmes Institute only informed the applicant that he was no longer a student in July 2018 so that the applicant “would continue to believe he was a student so that he would endeavour to pay them the several thousand dollars of tuition fees.” She submitted that Mr Relton was only interested in having the fees paid.

145.   This submission is confused and confusing. It is inconsistent with the applicant’s own evidence that he entered into an arrangement with the Holmes Institute that he could sit the examinations in October 2017 without paying his outstanding fees.

146.   The evidence before the Tribunal is that the Holmes Institute did not initiate any contact with the applicant after 6 October 2017. This is consistent with the evidence from the Holmes Institute that the applicant was reported to the Department of Industry Innovation, Science, Research and Tertiary Education after the end of the examination period ending 21 October 2017 for failing to maintain his enrolment, his COE was cancelled and he was no longer a student at the Holmes Institute thereafter. There is no evidence before the Tribunal of any contact between the Holmes Institute and the applicant from November 2017 to January 2018.

147.   The evidence before the Tribunal is that the applicant then initiated email contact with Mr Relton, Campus Director at the Sydney Campus, on 1 February 2018. The subsequent chain of emails (referred to above) indicates that the applicant was aware that he was not enrolled at the Holmes Institute, he contacted Mr Relton seeking advice, he informed him that he now had the money to pay his tuition fees, he wished to organise supplementary examinations for one or two subjects and repeat other subjects. He was advised by Mr Relton that he would have to pay his outstanding fees (from the trimester ending 21 October 2017), pay his future fees and then apply to do supplementary examinations. This involved him re-enrolling as a student at the Holmes Institute. His final email to Mr Relton on 1 February 2018 was that he would pay the fees as soon as possible.

148.   The Tribunal has not been provided with any correspondence between the Holmes Institute and the applicant between 2 February 2018 and 8 July 2018. The applicant’s evidence to the Tribunal is that he could not enrol at the Holmes Institute in February 2018 because he did not have the money to pay his fees. The evidence before the Tribunal is that the applicant next initiated contact with Mr Relton on 9 July 2018 stating that he wanted to start studying the following semester and inquiring how much he needed to pay. Mr Relton replied that his course was cancelled due to outstanding fees and inquired whether he had been studying since he left the Holmes Institute. There was a chain of email correspondence (referred to above) between them until 17 July 2018. The Tribunal has not been provided with any further correspondence between them thereafter.

149.   The applicant’s representative’s criticism of Mr Relton in relation to the applicant’s outstanding fees is confusing in view of the circumstances. The Letter of Offer from the Holmes Institute indicates that the applicant’s tuition fees for the trimester ending 21 October 2017 was $7,400.00, the deposit was $7,400.00 (because of the late enrolment) and had to be paid at the time the offer was accepted. The offer was accepted on 23 August 2017 when he enrolled. However, he did not pay the full amount of his fees. His COE indicates that he paid tuition fees of $3,700.00 and his fees were paid up to 1 September 2017.

150.   This indicates that the applicant had an outstanding balance of $3,700.00 owing to the Holmes Institute. The evidence before the Tribunal indicates that he entered into a payment plan with the Holmes Institute to pay the outstanding balance of $3,700.00 by 31 August 2017. This sum was not paid by 31 August 2017 and was still outstanding as at 11 September 2017 when a final reminder was sent to him. It remained outstanding irrespective of whether or not his enrolment ceased that trimester or he chose to re-enrol in the following trimester or he was reported to the Department of Industry Innovation, Science, Research and Tertiary Education.

151.   The Holmes Institute was entitled to seek the repayment of outstanding fees from the applicant and to commence legal proceedings against him (even after he was no longer an enrolled student) to recover the outstanding fees if they decided to pursue that option. There is no evidence before the Tribunal to indicate that they commenced legal proceedings to recover outstanding fees from the applicant.

152.   In his response dated 4 February 2020, the applicant claimed that the Holmes Institute never conducted any orientation for him. His evidence is that he commenced his studies at the Holmes Institute in 2017 five weeks after the trimester began. The Holmes Institute advised him by email on 9 August 2017 that he needed to attend the Sydney Campus and enrol on 11 August 2017, but he failed to do so. In any event, the Letter of Offer from the Holmes Institute indicates that ‘Prior to commencement it is important that you read the Information for Intending Students and it provides a link to the website.

153.   The Information for Intending Students is a comprehensive document that covers a number of topics including fees, Complaints, Appeals and Disputes, Information for International Students and Policies and Procedures for International Students. Further, the applicant had previously been a student at the Holmes institute. His evidence is that he first started studying at the Holmes Institute on 20 July 2014 and studied there until the first trimester of 2016. He should therefore have been very familiar with the Holmes Institute.  

154.   In his response dated 4 February 2020, the applicant claimed that the Holmes Institute never informed him of his student email address of [email protected] prior to his enrolment and during his period of study. The Letter of Offer and Acceptance of Offer from the Holmes Institute indicates that ‘Prior to commencement it is important that you read the Information for Intending Students that can be found at and a link to a website is provided. Included in the Information for Intending Students is information that students are provided with a webmail address.

155.   The applicant should therefore have been aware of this information prior to his enrolment at the Holmes Institute on 23 August 2017. His COE also indicates that his Student ID is GUE2447. He needed this information to be able to access his student email account. He has acknowledged that he received his COE on 23 August 2017 and should therefore have been aware of this information on his date of enrolment. Further, he was a student at the Holmes Institute from 20 July 2014 until the first trimester of 2016 and should have been fully aware of his student webmail address at the Holmes Institute.

156.   The applicant has asserted that the Holmes Institute falsified the emails that were sent to the Tribunal, that he never received them and that the Holmes Institute failed to comply with the National Code. For the many reasons given above, the Tribunal does not accept that the emails dated 23 August 2017, 30 August 2017, 6 September 2017 and 13 September 2017 were falsified or fabricated by the Holmes Institute and were not sent to the applicant. The Tribunal is satisfied that they were sent to the applicant to his student email address.

157.   The applicant has not given evidence that he checked his student email account regularly and those emails were not received. There is no evidence before the Tribunal to indicate that he did not receive those emails sent to his student email account. There is a significant difference between him not receiving the emails and him not checking the emails in his student email account. His evidence is that he did not receive the emails in his personal email account. In his response dated 4 February 2020, he claimed that the Holmes Institute always corresponded with him to his personal email address. The evidence from the Holmes Institute indicates that they did not always correspond with him to his personal email address and that mail was also sent to his student email address.

158.   In submissions to the Tribunal dated 10 August 2020, the applicant’s representative submitted that important correspondence should have been sent to him to his personal email address or copied to his personal email address as well. In hindsight, this would certainly have been a precautionary step for the Holmes Institute to take in relation to the applicant. The issue though is whether the emails sent to the applicant to his student email account was proper notification in compliance with the Holmes Institute’s obligations under the National Code 2017.   

159.   In considering this issue, the Tribunal notes that the 2017 trimester that the applicant attended at the Holmes Institute commenced on 10 July 2017 and concluded on 21 October 2017. However, he did not obtain a Letter of Offer from the Holmes Institute until 9 August 2017. The Letter of Offer indicates ‘Prior to commencement it is important that you read the Information for Intending Students that can be found at and a link to a website is provided. Included in the Information for Intending Students is information that students are provided with a webmail address. The applicant was expected to have read this information prior to his enrolment.

160.   On 9 August 2017, the Holmes Institute requested the applicant to attend enrolment on 11 August 2017. He failed to do so. He subsequently enrolled on 23 August 2017 and would have been provided with information at that time. His evidence is that he commenced his studies at the Holmes Institute 5 weeks late. On 23 August 2017, the Holmes Institute sent him an email enclosing a COE to confirm his enrolment. He acknowledges receiving this email. The COE provided him with his student ID number which he would have required to access his student email account. His evidence is that he had previously been a student at the Holmes institute from 20 July 2014 until the first trimester of 2016. He would therefore have been very familiar with the practises and procedures at the Holmes Institute. In these circumstances, the Tribunal does not accept that he was not informed of his student email address.

161.   Further, as a student, the applicant had a reciprocal responsibility to the Holmes Institute. In circumstances where he was late in enrolling in his course, the Tribunal would expect that he would have made sure that he made inquiries with the Holmes Institute, caught up with all the requirements and was up to speed as soon as possible after his enrolment.

162.   The purpose of an education provider creating student email accounts is so that education providers can communicate with students. It is the responsibility of students to check their student email accounts regularly and respond to emails they receive from their education provider. It was the applicant’s responsibility to check his student email account regularly and respond to emails he received from the Holmes Institute. There is no evidence before the Tribunal to indicate that he did so. It may be the case that, as he was also receiving emails to his personal email address, particularly from the Sydney Campus, he did not bother to check his student email account. This, however, does not absolve him from his responsibility to check his student email account regularly and respond to emails he received from the Holmes Institute. The Tribunal is satisfied that the Holmes institute emailing him to his student email account was proper notification or the “correct form of service”.   

163.   In considering whether the Holmes Institute complied with its obligations under Standard 13 of the National Code, the Tribunal notes that the applicant sought enrolment several weeks after the commencement of the trimester, the Letter of Offer required him to pay the full amount of his trimester fees ($7,400.00) at the time he accepted the offer. He accepted the offer and enrolled on 23 August 2017 but did not pay the full amount of $7,400.00. He was therefore sent an email on 23 August 2017 to his student email address informing him that he was only enrolled to 1 September 2017, the balance of his tuition fees had to be paid to continue his enrolment after that date, a late fee applied and he was provided with two options for the payment of the balance of the tuition fees.

164.   On 23 August 2017, the Holmes Institute also informed the applicant that a failure to maintain current enrolment was a breach of his Student visa and could result in him being reported to the Department of Industry Innovation, Science, Research and Tertiary Education for not meeting the conditions of his Student visa and that this could result in the cancellation of his Student visa. He was also referred to the Students’ Complaints, Disputes and Appeals Procedure.

165.   On 30 August 2017, the Holmes Institute again sent the applicant an email to his student email address in identical terms to its previous email dated 23 August 2017 except that it had the words “Final Reminder” in capitals and bold.

166.   On 6 September 2017, the Holmes Institute sent the applicant an email to his student email address with the words “Serious Breach” in capitals and bold. It informed him that his fees were seriously overdue and he no longer had a current enrolment at the Holmes Institute. It informed him that unless his fees were paid within 7 days, they would have no alternative but to report him to the Department of Industry Innovation, Science, Research and Tertiary Education for not complying with the conditions of his Student visa. He was informed that a late fee applied, provided him with two options for the payment of the balance of the tuition fees and also referred to the Students’ Complaints, Disputes and Appeals Procedure.

167.   On 11 September 2017, the Director of the Sydney Campus of the Holmes Institute sent the applicant an email giving him a final opportunity to rectify the problem. It informed him that he still had outstanding fees, he needed to resolve the matter straight away or further action would commence that week. It informed him to attend the Campus immediately, see one of two nominated staff members and arrange to pay his outstanding fees. The applicant claims that he attended the Sydney Campus on 11 September 2017, spoke to a staff member and arranged to defer payment of his outstanding fees, until after the examinations in October 2017, to an unspecified date. He claims that he has evidence of this but did not provide it to the Tribunal. In any event, his outstanding fees were not paid on 11 September 2017.

168.   On 13 September 2017, the Holmes Institute sent the applicant an email titled ‘Notice of Intention to Report’ in capitals and bold. It contains the applicant’s residential address and indicates that it was sent to him by email to his student email address. It informed him that, in accordance with Standard 13 of the National Code, he was being advised of the Holmes Institute’s intention to report him to the Department of Industry Innovation, Science, Research and Tertiary Education for not maintaining his enrolment. It informed him that if he did not contact the Holmes Institute his COE would be cancelled.  

169.   The email dated 13 September 2017 informed the applicant that he could appeal against the decision by notifying the Holmes Institute in writing within 20 working days of the date above. If he appealed, an appointment would be made for him to present his case within ten days of receipt of his appeal notification. He could be accompanied by a support person. Following the appeal meeting, he would be given a written statement of the outcome. Immediately after the 20 working days if he did not lodge an appeal, the Holmes Institute would inform the Secretary of DIISRTE that he had not maintained his enrolment at Holmes Institute. If he lodged an appeal and it was dismissed, the Holmes Institute would inform the Secretary of Department of Industry Innovation, Science, Research and Tertiary Education immediately, unless he lodged an appeal to the external arbiter within seven days. If he appealed, his enrolment continued during the appeals process.

170.   The Tribunal was informed that the applicant did not exercise his appeal rights and the Holmes Institute reported him to the Department of Industry Innovation, Science, Research and Tertiary Education for not maintaining his enrolment.

171.   Having considered the above, the Tribunal is satisfied that the Holmes Institute has complied with the requirements of Standard 13 of the National Code 2017.[1]

[1] Standard 13, National Code 2017. (  Having had regard to all the evidence and submissions, the Tribunal gives this consideration little weight in the applicant’s favour.

Past and present behaviour of the applicant towards the Department

173.   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. The Tribunal gives this consideration weight in his favour.   

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

174.   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. The Tribunal does not give this consideration any weight in his favour.

Legal consequences of a decision to cancel the visa

175. 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.

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

177.   The Tribunal does not give this consideration any weight in his favour.   

Australia’s international obligations

178.   There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations.

179.   The Tribunal does not give this consideration any weight in his favour.

Any other relevant matter

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

CONCLUSION

181.   Having considered all the evidence and submissions 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 visa should be cancelled.

DECISION

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

L. Symons
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

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.