Panara (Migration)

[2019] AATA 3595

Panara (Migration) [2019] AATA 3595 (14 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aakash Navneet Kumar Panara

CASE NUMBER:  1827389

HOME AFFAIRS REFERENCE(S):           BCC2018/194844

MEMBER:Christine Kannis

DATE:14 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 14 July 2019 at 3:12pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – no compassionate circumstances –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 1 July 2019 to give evidence and present arguments.  

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

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

   Did the applicant comply with Condition 8202?

8. On 11 February 2015 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

9. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant was not been enrolled in a registered course of study from 14 July 2017 until 9 July 2018. The applicant completed an ILETS Intensive Preparation course on 14 July 2017. He enrolled in a Certificate III in Light Vehicle Mechanical Technology which was to commence on 9 July 2018 and a CoE was issued on that date.  Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 14 July 2017 and was not enrolled for a period of nearly 12 months. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

12. On  26 March 2018 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

    Response to NOICC

13. On 5 April 2018 the applicant responded to the NOICC and provided the following information:

    ·He came to Australia in 2015 and was enrolled in a Bachelor of Engineering (Mechanical). He failed most of the units in the first semester because the course was too difficult. He changed to a Bachelor of Aviation course however he failed all the units undertaken in two semesters. As a result he was excluded from the course.

    ·His first step towards this educational milestone was an English course. His family speaks a local dialect and he has spoken very little English in his life. He enrolled in an English course leading to a diploma level of education. The English course improved his English however he is still not ready for a Bachelor course because the level of English in such a high course would mean he would fail.

    ·He has an interest in technical education so he approached New England College for enrolment in Certificate III, IV and Diploma in Automotive Technology (Mechanical) leading to a Bachelor degree course.

    ·He has shown dedication to the subject he came to Australia to study. He has not deferred from learning and developing his technical education skills but he has gone down a level because he did not do well in his Bachelor level of study.

    ·He is not aware of the existence of non-streamline visa colleges. The people in charge of his admissions did not advise him about this. Had he known about these two types of colleges he would have tried to look for a more suitable course and college and he would have chosen the right college as per the criterion.

14. At the time of responding to the NOICC the applicant provided CoEs created on 4 April 2017 for ILETS Intensive Preparation courses. A Letter of Offer dated 8 March 2018 from New England College Perth was also provided. The Letter of Offer was for a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Overhauling and a Diploma of Automotive Technology.

    Evidence at hearing

15. The applicant told the Tribunal that he made a mistake in not enrolling in a course for six months. The Tribunal noted that he was not enrolled in a course for nearly 12 months.

16. The applicant’s enrolment in a Bachelor of Engineering (Mechanical) was cancelled on 28 July 2015 and his enrolment in a Bachelor of Aviation was cancelled on 3 February 2017. He said he found the Bachelor courses too difficult because he could not understand the lecturers. He decided to study English to enable him to understand the lecturers. His friends told him that as long as he was enrolled in a course he would not be breaching his visa conditions. The Tribunal noted that when he was studying English he was not enrolled in a Bachelor course.

17. The applicant told the Tribunal that after he completed an ILETS course on 14 July 2017 the university told him he could apply to resume the Bachelor of Aviation in 6 to 12 months. However at the time of responding to the NOICC the applicant provided a Letter of Offer for Certificate III and Certificate IV courses and a Diploma course. CoEs for these courses were issued on 9 July 2018.

18. The Tribunal asked the applicant what he had been doing since he completed the ILETS course on 14 July 2017 and commencement of study on 9 July 2018. He said he had been working 20 hours per week at McDonald’s and had been trying to get on with his study. He said after he completed the ILETS courses he purchased books relevant to the Bachelor of Aviation course and read them in preparation for further study.

19. The Tribunal asked the applicant whether he notified the Department of the change in his circumstances during the 12 months he was not enrolled in a course. He said he did not read the conditions of his visa carefully and was not aware of his visa obligations. He said he thought it was okay to have a six month break from study. As noted, the applicant was not enrolled for a period of nearly 12 months and only enrolled after the NOICC was issued.

20. When asked what hardship may result from cancellation of the visa the applicant said his family have given everything in a financial sense and have taken out loans to enable him to study in Australia. He said they will also be disappointed because they want him to obtain a proper degree from a respectable university.  The applicant said he wants to be a commercial pilot.

    Representative’s submissions at hearing

21. The representative asked the Tribunal to take into account that the applicant was young when he came to Australia and was not as serious about his study as he should have been. She said he had his ups and downs in the Bachelor courses and he thought studying English was enough to satisfy his visa conditions. Regarding his 12 months of non-enrolment the representative said he should have taken advice from a migration agent or contacted the Department. She said the Aviation course the applicant wishes to study is a sub-branch of the Bachelor of Engineering course he was originally enrolled in and it is not available in India. She said if he is not permitted to remain in Australia and study Aviation his career aspirations will be shattered.

22. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

23. The applicant told the Tribunal his purpose in coming to Australia was to study Engineering so he could work in a proper job. After failing units in a Bachelor of Engineering (Mechanical) he decided to enrol in a Bachelor of Aviation because it was a nice course and was in the same field of study.

24. The Tribunal noted that the applicant has been in Australia for more than four years and in that time the only courses he has successfully completed are ILETS courses.

25. The Tribunal finds the applicant’s breach of condition 8202 to be significant because the applicant was not engaging in any study and was not fulfilling the purpose of his travel to and stay in Australia for a period of nearly 12 months. 

26. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said he wanted to complete his study and said he knows he made a mistake in not taking his study seriously.

27. The applicant’s non-engagement in any study including the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

28. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.

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

29. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to his family however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

30. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said he made a mistake in not enrolling in a course for a period of six months. As noted, he was not enrolled for a period of nearly 12 months.

31. The circumstances which contributed to the applicant’s non-enrolment included that the Bachelor courses he studied were too difficult for him because of his poor English language skills. Prior to the granting of the student visa the applicant would have been required to evidence his English proficiency to undertake higher education in Australia. It was the applicant’s responsibility to ensure he was properly prepared for study in Australia.

32. The applicant said his friends told him that when he was studying English he was complying with his visa conditions because he was enrolled in a course. He did not offer any explanation for his non-enrolment for nearly 12 months other than to say he made a mistake and that the university told him he could resume his Bachelor of Aviation in 6 to 12 months. As noted, at the time the NOICC was issued the applicant had obtained a Letter of Offer for Certificate III and Certificate IV courses and a Diploma course and subsequently obtained CoEs for these courses.

33. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

34. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

35. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

36. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

37. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

38. The applicant told the Tribunal that in June 2019 he was granted study rights and the university has verbally advised him that it will make a conditional offer to him with respect to resuming the Bachelor of Aviation.

39. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

40. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which is visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

41. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.