Nischal (Migration)

[2017] AATA 2533

Nischal (Migration) [2017] AATA 2533 (1 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nitish Kumar Nischal

CASE NUMBER:  1700619

DIBP REFERENCE(S):  BCC2016/3826684

MEMBER:Tigiilagi Eteuati

DATE:1 August 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 01 August 2017 at 2:16pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Requirement to be enrolled in registered course – Applicant not enrolled in registered course – Lack of ability to pay tuition fees – Lack of desire to study in Australia

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 January 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

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

3. The applicant appeared before the Tribunal on 18 July 2017 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. The Minister’s delegate found that the applicant had not been enrolled in a registered course since 13 January 2016. This accords with records held by the Department and the issue was also conceded by the applicant.

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. The applicant said that he arrived in Australia in February 2014 to study a Master of International Tourism and Hotel Management degree. The applicant said that he had graduated with a Bachelor of Business Administration in India before his arrival in Australia. He said that after the first semester of study in Australia he found that Masters course was too difficult and he was failing the course. He said that he abandoned the Master’s degree and his subclass 573 visa was cancelled. The applicant said that he enrolled in a Certificate IV in Commercial Cookery and a Diploma in Hospitality at Spencer College in September 2014. He applied for a subclass 572 visa which was granted in March 2015.

13. The applicant said that he completed a Certificate IV in Commercial Cookery in November 2015 and this accords with the records held by the Department. However, the applicant provided the Tribunal with various documents purportedly from Spencer College which indicated that the applicant completed a commercial cookery course in November 2016.

14. The applicant said that he was to begin a Diploma in Hospitality in December 2015 but he could not afford the fees so he ceased studying. His enrolment in the Diploma course was cancelled on 13 January 2016.

15. The applicant said that since that time he has been residing in Australia but not working. He said that despite his parents not being able to pay for his tuition fees, they have fully supported him financially since he stopped studying over a year and a half ago in late 2015. The Tribunal asked the applicant why he remained in Australia if he was not working or studying since late 2015. He said that he was hoping that someone would give him money so he would be able to begin studying again.

16. The applicant said that if he was successful before the Tribunal he would apply for another visa and enrol in a Diploma in Hospitality and then in a Masters degree course.

17. The Tribunal raised its concern that given that the applicant was unable to pay his fees for a vocational course in the past that he would not be able to pay his tuition in the future. The applicant said that he had a cousin who was willing to pay for his tuition. He then changed his evidence and said that it was actually his uncle who would pay for his tuition.

18. The Tribunal raised its concern that the applicant may have no desire to study in Australia and that he may not be a genuine student given that he held a Bachelors degree and came to Australia to study a Masters course but then changed his visa and course to study vocational courses in cookery and hospitality and finally ceased studying altogether. The applicant said that he found the Masters course too difficult and thought that the cookery course and hospitality course he enrolled in were similar in substance to his Masters course. He said that he hoped to finish these vocational courses and eventually re-enrol in a Masters course.

19. The Tribunal finds that, given that the applicant was unable to pay his fees for a vocational course in the past that he would not be able to pay his tuition in the future.  The Tribunal does not accept that the applicant has a relative who has agreed to pay for his tuition fees and would be able to do so. First, the applicant gave inconsistent evidence as to the identity of this relative. First he claimed that the relative was his cousin and later he said that it was his uncle who had agreed to support him. Secondly, if the applicant had cousin or uncle who was in a position to pay for his fees the applicant provided no meaningful explanation as to why he did not ask his relative for money when he could not pay his fees but instead waited for almost a year to ask for the money. The applicant said that he asked his relative money in November 2016 and his relative told him he would pay for his tuition. The Tribunal asked the applicant why he did not enrol in a course and pay his fees in November when his uncle agreed to pay his fees. The applicant said that his uncle had problems transferring money to the applicant. The applicant told the Tribunal that his relative had been listed as a guarantor for his fees when he first arrived in Australia. The Tribunal has no confidence that the applicant’s relative would pay the applicant’s fees in the future in circumstances where he had been a guarantor for the applicant’s fees in the past and had been unable to pay for the fees when the applicant’s parents were unable to pay his fees.

20. In addition, the Tribunal finds that the applicant does not have the desire to study in Australia given that he held a Bachelors degree and came to Australia to study a Masters course but then changed his visa and course to study vocational courses in cookery and hospitality and finally ceased studying altogether. This conclusion is strengthened by the fact that the applicant ceased studying altogether in late 2015 and did not even seek to ask his guarantor relative for money for tuition until November 2016.

21. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete any higher education courses in Australia. The Tribunal has also considered that, because his visa was cancelled for breach of condition 8202, the applicant may have to wait for some time before being granted another student visa.

22. However, the Tribunal finds that the applicant’s lack of ability pay for courses in Australia and his lack of desire to successfully undertake courses in Australia heavily outweighs any hardship that he, or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

24. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.

    Tigiilagi Eteuati
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.