Pandey (Migration)

[2019] AATA 6170

Pandey (Migration) [2019] AATA 6170 (24 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sumit Pandey

CASE NUMBER:  1828374

HOME AFFAIRS REFERENCE(S):           BCC2018/1523921

MEMBER:Michael Biviano

DATE:24 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 October 2019 at 10:05am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – change of course – family refused to support – applicant attempted to get sponsorship – no hardship – circumstances not beyond control of applicant – 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 19 September 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 had not been enrolled in a registered course of study from 26 October 2017 and he was not compliant with condition 8202 of his visa.  The Delegate went on to consider whether the factors in favour of cancellation outweighed those against cancellation.  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 October 2019 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:

   ·must be enrolled in a full-time registered course: 8202(2)(a)

   ·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: 8202(2)(b),

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

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

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 decision record of the Delegate of the Department of Home Affairs dated 19 September 2018, which was provided to the Tribunal by the applicant confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 16 February 2017 and the reasons for the cancellation of the visa (Decision Record).

9. The applicant arrived in Australia on 25 February 2017 pursuant to a student visa class TU 500 to study a Masters of International Tourism and Hotel Management at Southern Cross University. He claims that he ceased studies before the examinations and he did not sit the examinations at the end of first semester because he was advised that having a Masters of International Tourism and Hotel Management would not assist his career in the Hotel Management field having regard to the fact that he had already obtained a Bachelor of Hotel Management, Catering and Tourism in India.

10. He then enrolled in a Master of Professional Accounting at Holmes Institute in mid-2017 which he considered was more beneficial to his career and to get a job in restaurant management in a hotel and then eventually move into hotel executive management. The cost of the course was $6500 per semester and he gave evidence that his family had intended to fund his education and he would pay them back from his earnings once he had completed the Master’s Degree and he was able to obtain a temporary skilled work visa in Australia to work full time for a few years before returning to India.

11. The applicant gave evidence that he negotiated to pay his tuition fees for the first semester of the Master of Professional Accounting in two instalments, the first instalment of approximately half on enrolment and the second instalment being the balance in September 2017. He gave evidence that he could not afford to pay the second instalment because his family refused to continue to support him and pay his tuition fees.

12. When questioned about what happened as to why his family refused to support him he explained that the family had provided sufficient fees for him to have enrolled and for the second instalment of the tuition fees for September 2017 but:-

    a.He had been encouraged and influenced by some of his friends that studying was a waste of time considering his qualifications and experience and that he should seek to get sponsored to work visa in Australia under a 457 visa;

    b.Based on that advice he spent approximately $1900 on getting a work skills assessment done for that purpose instead of spending it on tuition fees; and

    c.He paid $3000 to a person to arrange a meeting at Deep Water with representatives at a company for the purpose of attempting to gain sponsorship and he lost the $3,000.

13. In all the circumstances, by the applicant’s conduct it appears that the applicant was more interested in remaining in Australia to work rather than to undertake his studies.

14. The applicant had the opportunity to pay his tuition fees and it is the responsibility of the applicant to ensure that he has tuition fees available for payment and that he pays his tuition fees.

15. The applicant accepted that the sole reason the enrolment in the Master of Professional Accounting course at Holmes Institute ceased was because he did not pay his tuition fees.

16. The Decision Record confirms that since 26 October 2017 he has not been enrolled in a registered course of study.

17. The applicant received the Notice of Intention to Consider Cancellation of the visa dated 23 July 2018 (NOICC) from the Department because he had not been enrolled since 26 October 2017 being a period of nearly 9 months and the applicant sent a response to the NOICC by email to the Department dated 3 August 2018 (Response). 

18. The Response did not dispute that the applicant was not enrolled and it stated, omitting formalities:-

    ‘This email is in response to the Notice of Intention to Consider Cancellation which is dated
    on 23/7/2018. For the same I requested an extension for 5 days which was approved on
    30/7/2018.

    Client Name Sumit Pandey

    Date of Birth 16/08/1989

    Cancellation ID C6ZS8JXOM

    File Number BCC2018/1523921

    I acknowledge my COE from Holmes institute got cancelled and I have not enrolled myself in any full time course since November 2017. I understand the seriousness of my conduct here. I will request you to consider my situation before you make any decision on my visa.

    Post arrival in Sydney from the beginning of my studies I have been home sick and I have felt very alone. 2017 had been a difficult year for me, with regards to concentrating on my studies, making correct decisions and right choices. I have always lived and functioned around a lot of friends, but after coming to Sydney i have experienced a big vacuum. I have felt like being in an ocean which has been shocking, intimidating without a support system. While sitting in lectures while I was attending the Uni, most of the time I have felt so out of place, while travelling in trains from uni or my part time work. For most of the last year I have been just hiding in my room finishing cigarette packets, being on my own. My one wrong decision has lead to another wrong decision and so on.

    I had nearly given up on life and there have been a couple of times where I have found myself so low and empty I ended up calling the Lifeline Australia 131114 number, I just needed a place to burst out.

    I had dreams of getting my masters degree from Australia and it will be such a shame for me and my family if I am unable to do so.

    I have consulted a general practitioner who has advised me to see psychologist to help me deal with depression and I have attached a copy of the letter given to me by the GP.

    I would like to request you to give a second chance and not cancel my visa so I could get my
    masters degree. I am ready to enrol and commence my studies immediately if given another chance and clean up my act.

    Yours Sincerely.

    Sumit Pandey

19. The applicant readily conceded in evidence, that he was not enrolled in a registered course of study from 26 October 2017 until the date of the visa cancellation on 19 September 2018.

20. On the evidence before the Tribunal the applicant was not enrolled in a registered course between 26 October 2017 and 19 September 2018. Accordingly the applicant has not complied with condition 8202(2) of his visa. As this was a condition which was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

21. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or the Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

22. The applicant gave evidence that he came to Australia to study and undertake a Masters of International Tourism and Hotel Management as discussed above.  However the applicant decided to change his course of study to Master of Professional Accounting to improve his career options.

23. Notwithstanding that the applicant has been in Australia since 25 February 2017, being two years and eight months he has not completed a semester of studies and not passed any subjects.

24. The applicant in evidence at the hearing claimed that essentially his non-enrolment on 26 October 2017 arose by reason that he was unable to meet the tuition fees for the second semester in 2017 and he was not in a financial position to pay the second instalment due for the Master of Professional Accounting in 2017 or in any Master’s course in 2018 due to his financial position.

25. The period of non-enrolment from 26 October 2017 until the cancellation of the visa on 19 September 2018 is a period of 10 months and three weeks which is a long period of time not to be studying in Australia which creates doubts as to whether the applicant has travelled and stayed in Australia for the purposes of study.

26. The applicant has given evidence that if possible he intends to remain in Australia to obtain some qualification for his efforts. He gave evidence that if the cancellation of the visa was set aside he wanted to stay in Australia and study a Diploma of Hospitality and an Advanced Diploma of Hospitality. Those courses are vocational education and training (VET) courses and lower courses than his current qualifications and it appears that they are at a lower level of qualification than the registered course in relation to which the visa was granted, which may constitute a further breach of condition 8202(2)(b) of the visa. The applicant was questioned about his ability to pay for those courses. He claimed that the VET courses would cost some $15,000 but he only had $2,000 in savings and he would have to borrow from his uncle and friends to meet the tuition fees. The applicant did not produce any corroborating evidence that he could meet the tuition costs. Based on the applicant’s own evidence, the Tribunal is not satisfied that even if the cancellation of the visa were set aside that the applicant would be able to pay his tuition fees for that course.

27. Having regard to the applicant’s evidence the Tribunal accepts that the applicant may have travelled to Australia intending to study and that he does intend studying in the future but given his conduct in Australia as set out above and his inability to complete one semester of study since his arrival in Australia in February 2017 and his failure to pay the tuition fees despite having the funds, the Tribunal gives these matters only marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

28. The applicant gave evidence that he was not enrolled in a course of study from 26 October 2017 until the cancellation of the visa on 19 September 2018 being a period of nearly 11 months which is a long period of time.  Therefore the applicant has not complied with condition 8202(2) for a long period of time.  The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason of non-enrolment. 

29. The applicant in the Response and in evidence confirmed the reasons as to why he was not enrolled during that period of time of almost 11 months, which are set out above. The Tribunal does not find those reasons compelling in circumstances where the applicant was essentially the cause of the non-enrolment by not paying tuition fees and spending the money in other endeavours to obtain a work visa in Australia. 

30. The applicant in the Response raised his depression and mental issues as factors that contributed to him not being enrolled. The applicant in evidence conceded that they were not the reason why he was not enrolled. He confirmed that his financial issues were the reason as to why he was not enrolled and his family refused to continue to support his studies in Australia.

31. Further the applicant did not tender any medical evidence or psychological report that his condition was so severe that he could not study by reason of his medical condition or could not seek enrolment and deferment of his studies by reason of his psychological condition. The applicant conceded that while he was suffering from some depression and he had called Lifeline, they were not the reason why his enrolment ceased and he did not re-enrol in a course of study.

32. The Tribunal finds the reason for the non-enrolment was the non-payment of tuition fees, which was the responsibility of the applicant, which he had received from his family but spent on other endeavours.

33. Having regard to the substantial period of non-enrolment and the duration of the breach, the Tribunal gives it some weight towards the visa being cancelled.

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

34. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

35. The applicant gave evidence that he did not believe his family would suffer any hardship as a result of the cancellation of the visa.

36. He gave evidence the visa cancellation would cause him a significant degree of hardship as he would not have completed his studies and he would not be returning from Australia with any qualifications and with a debt owed to his family. In essence he claims that his time in Australia would have been wasted.

37. However, the applicant conceded that he would be able to return to India and study in India, which lessens the degree of hardship of the effect of a cancellation.

38. The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

39. The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

40. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

41. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

42. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment as being beyond his control.

43. The applicant knew and was aware that by not being enrolled in a registered course of study he would have been in breach of condition 8202 and that his visa may be cancelled.

44. The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to his visa and the applicant was not enrolled for a period of nearly 13-and-a-half months which is a long period to be in breach of the visa.

45. The Tribunal has considered the applicant’s explanation for why he was not enrolled for this long period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

46. According to the Decision Record, the applicant had responded to the NOICC as set out above. Further there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

47. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being 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

48. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visas.

49. Further, if the Tribunal decides to affirm the decision to cancel the TU500 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

50. However, these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

51. The applicant gave evidence that if the visa remained cancelled he would return to India and therefore there is no indication that he would become unlawful or be subject to detention.

52. Accordingly the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    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

1. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to India and he did not give any reasons as to why he could not return to India and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

2. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

   Any other relevant matters

3. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

   Conclusion

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

   DECISION

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

   Michael Biviano
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   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.