Priyank (Migration)

[2019] AATA 2279

Priyank (Migration) [2019] AATA 2279 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PRIYANK PRIYANK

CASE NUMBER:  1702646

HOME AFFAIRS REFERENCE(S):           BCC2016/3220528

MEMBER:Mr S Norman

DATE:16 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 April 2019 at 10:15am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in a registered course – breach of conditions – obtained COE one day after delegate’s decision – adverse findings – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 189, 198
Migration Regulations 1994, Schedule 2,

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 February 2017 made by a delegate of the Minister for Immigration and Border Protection 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 Department decision was not lodged with the Tribunal. However, by email of 5 February 2019, the applicant’s migration agent provided the Department ‘Notification of Cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under section s116 (General Power) of the Migration Act 1958’ dated 6 February 2017. That contained the information in the Notice of Intention to Consider Cancellation (set out below).

3. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2)(a) – enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The migration agent had subsequently advised they were not able to contact the applicant ‘for a long time and therefore cannot represent the case’. The applicant had not changed/revoked the appointment of the representative; however the applicant was issued a copy of the hearing invitation letter by email. 

5. The applicant had then appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. 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. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis they were not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 17 March 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 23 December 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS), indicated he had not been enrolled in a registered course of study for the period 17 August 2015 to 1 August 2016. It therefore appeared he had breached condition 8202(2)(a); and that his visa may be cancelled pursuant to s.116(1)(b) of the Act.

10. The applicant responded to the NOICC. He referred to health issues; that he was continuously trying to obtain enrolment at a university; he asked that the Department not ‘spoil his career and dreams’. The applicant did not however, dispute there were grounds to cancel the visa.

11. When discussed at hearing, the applicant said he obtained a COE to commence a Masters degree on 8 May 2017 – end date 5 March 2019 (at Group Colleges Australia). The COE for that course was granted on 7 February 2017, being one day after the delegate’s decision to cancel the Student visa.

12. That being said, as the COE for the Masters degree had not granted prior to the applicant’s Student visa being cancelled by the Department, based on the evidence before the Tribunal, I accept the applicant had not been enrolled in a registered course of study for the period 17 August 2015 to 1 August 2016 (approximately 11 ½ months). At hearing, the applicant did not dispute that this was correct.

13. 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

14. 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 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’.

15. Regarding the now 33 year old Indian citizen applicant’s purpose for travelling to and staying in Australia, there is no evidence to indicate the applicant’s initial intention for travelling to and staying in Australia was not the purposes of study. At hearing, the applicant said he now wished to complete his studies in Australia, however based on all the findings herein, the Tribunal is not satisfied the applicant’s present intention for continuing to reside in Australia, is for the purposes of study.

16. Regarding the extent of compliance with conditions attached to the Student visa, the applicant failed to maintain enrolment in a registered course of study from 17 August 2015 to 1 August 2016. When discussed at hearing, the applicant said he had subsequently completed an Advanced Diploma of Business in January 2017. However, from then until the Tribunal hearing (being 10 April 2019), the applicant had not undertaken any studies in Australia. The principal purpose of the grant of a Student visa is to allow non-citizens to travel to and reside in Australia for the purposes of study (something commonly explained to an applicant on the grant of their Student visa). The applicant has not complied with this. The Tribunal believes this breach to have been significant.

17. Regarding the hardship that may be caused to the applicant or his family if his visa is cancelled he said that he had no siblings, and that his parents had passed away in India when he was young and that he was raised by his grandparents. He said his grandfather passed away in late 2016; and though the applicant’s Student visa was not cancelled until February 2017, he was unable to return to India. He said his grandmother was having heart problems in India. The applicant also said he would not be able to ‘pursue his dream’ to study at the tertiary level in Australia; and that he would be (words to the effect) disappointed for not successfully completing his studies and for ‘wasting time’. The applicant also conceded that he had ‘made a mistake’.

18. At hearing, the Tribunal noted that country information it had considered indicated that India has one of the fastest growing large economies in the world.[1] Also, that regarding education the country information stated:  

    India’s higher education system stands third in size in the world after the US and China with nearly 26 million students in over 45,000 institutions in the country. In the last decade the country has witnessed a particularly high growth rate in student enrolment at a CAGR of 10.8% and institutions at 9%. …  

    Indian higher education has been progressing at a fast pace adding over 20,000 colleges and about 8 million students between the ten year period 2001 - 2011. As of 2011, Indian higher education system is spread over 42 central universities, 275 state universities, 130 deemed universities and 90 private universities. … [2]

    [1] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Economic Overview’, p.8.

    [2] ‘HIGHER EDUCATION IN INDIA - Access, Equity, Quality’,  Obadya Ray Shaguri - EAN World Congress Scholar 2013, accessed 27 February 2019.

19. At hearing, the applicant said he was employed as a ‘production manager’ at a TV station and later in a marketing role with varying employers in or around New Delhi, for the five years prior to travelling to Australia in March/April 2015. In Australia, he had been employed since April 2015 in a food distribution business in Mascot/Botany. The Tribunal then noted that it may find he could engage in further studies in India and find work commensurate with his skills in India. He accepted this was correct but he believed that he would have better job prospects in India if he successfully completed tertiary education in Australia. In the circumstances, the Tribunal proposes to accept  that if the applicant’s Student visa is cancelled, he may be subject to some limited hardship.

20. Regarding the circumstances in which the ground for cancellation arose, the applicant had lodged by email dated 17 January 2017 (and in other correspondence), the following:

    ·IELTS test scores; reference to a COE for a MBA (Spring 2015) – cancelled for non-commencement[3]

    ·A letter dated 1 June 2005 from JAGRAN – being the applicant’s letter of resignation[4]

    ·a letter dated 21 July 2009 from the New Deli Young Men’s Christian Association referring to prior studies of the applicant[5]

    ·other evidence (including that which referred to prior work and study in India). 

    ·Certificate/s of Sickness from 10/08/2015-30/11/2015 – providing for the applicant’s short term absence from university due to depression[6] - though as discussed below, he was able to maintain ongoing work during this period

    ·An undated statement titled ‘Gap Explanation Statement’ - referring to an academic English program; failing same and what was referred to as “arguments with the management”; having been told to reapply; that this was a waste of four months for the applicant; that he commenced work as a volunteer in Friends World Television; that he may not able to support himself even though he had money for his studies in Sydney; that he did not enrol in an appropriate course and was in deep depression; that he visited a doctor; 10 months later he “started planning to study again”; there was some discussion about which university he may attend; he eventually enrolled for a Diploma course based on advice from his new education agent; he now wants to enrol in (ie) a MBA.

    ·The Tribunal also notes that some of the above evidence had also been lodged at hearing.

    [3] Department – folio 16.

    [4] Department – folio 16.

    [5] Department – folio 17.

    [6] Department – from folio 54.

21. When discussed at hearing, the applicant explained that around June 2015, he attempted to change his degree course at the University of Technology (UTS). He was then asked for further hardcopy evidence about his being educated in the English language in India. He requested his family send hard copies of his prior Indian education qualifications but that information had only been returned to the applicant one or two weeks after the ‘cut off’ date for enrolling in the applicant’s now preferred degree course at UTS (in the Spring 2015 Semester). The applicant said he argued with the UTS, but they did not agree to allow him to enrol in the Spring 2015 Semester.

22. When then asked why he did not enrol in the Autumn 2016 Semester at UTS, he said he was not allowed. Though no corroborating evidence was lodged, the applicant said he attempted to gain enrolment in a degree course between August 2015 and June 2016 on multiple occasions, and at numerous Colleges/Universities, but that he was not successful. He said the reason for this was that by the time of the commencement of the Autumn 2016 Semester (in March 2016), there was around an eight month gap in his studies and no University or College would grant him a COE to study a degree course.

23. At hearing, the Tribunal advised the applicant it may not accept this claim, but he repeated that he was told he would not be allowed to be given a COE due to him having an eight month gap in his studies. The Tribunal now rejects this claim as false for two reasons. First, and as put to the applicant at hearing, on numerous occasions when ex-Student visa applicants have appeared before the Tribunal, it is not uncommon for them to have been able to obtain a COE for a degree course though they had not been enrolled in a registered course in excess of the eight months claimed by the current applicant. The second reason the Tribunal rejects this claim as false, is that the applicant was in fact able to obtain a COE for a Masters degree at Group Colleges Australia (course start date 8 May 2017 - course end date 5 March 2019).

24. When then asked how he had progressed in the Masters degree at Group Colleges Australia, the applicant said he had paid for two subjects (approximately $1,700) of the 16 subjects he needed to successfully complete to be awarded the Masters degree. However, and though it took some time to clarify, the applicant eventually conceded he had not commenced this degree. He said he was unsure if he would be allowed to remain in Australia for the duration of the Masters degree and he therefore had not wished to expend any monies. He said the Masters degree would cost approximately $30,000 and he had access to a $40,000 student loan from an Indian bank (though he said that none of this money had yet been borrowed).

25. Given the applicant had engaged a migration agent to assist him (though that agent no longer formally acts for the applicant), and given he conceded that he had enquired with a ‘new education agent’, when asked if he enquired about whether he could transfer course credits (gained towards an Australian Masters degree) to a university in India, or whether he had found out if he could recover any monies he may have paid for an Australian Masters degree if his Student visa decision was affirmed, or whether he had found out whether he may be allowed to (ie) complete a Semester in the Masters degree before departing Australia (assuming his Student visa cancellation decision was affirmed), the applicant said he had not.

26. That being said, the Tribunal accepts that an applicant may be concerned about expending money on education in Australia, if they were unsure whether they would be allowed to successfully complete that education. However, in the present case, the applicant had not studied in a registered course since mid-2015 (though he did complete a six month Advanced Diploma of Business in mid-January 2017). Further, he had not undertaken any study in Australia since that time (since mid-January 2017).  Furthermore, the Tribunal does not accept the applicant was unable to enrol in a degree course in Australia, for any reason he claimed.

27. Regarding the claims the applicant was home-sick in and from mid-2015 and that he suffered depression from that time, at hearing he explained that he had attended his local doctor and had been prescribed some medication, and which he had taken for one or two months. However, he also confirmed that he had worked continuously since arriving in Australia in April 2015 (when he was 29 years old), and up to the date of the Tribunal hearing. Therefore, even if the Tribunal accepts the applicant attended a doctor as claimed and for the reasons he claimed, I am not satisfied this prevented him from studying in Australia – given for instance, it did not prevent him from continually working.

28. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. Based on all the accepted evidence herein, the Tribunal is also not satisfied there is any compelling need for the applicant to travel to or remain in Australia.

29. Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. Further, the Tribunal notes the applicant could temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

30. The Tribunal also notes that if the applicant’s Student visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

31. Notwithstanding the applicant’s claims at hearing to now wish to complete his tertiary studies in Australia, the inter alia lengthy period of his non-enrolment in a registered course of study, his failure to have engaged in any study since mid-January 2017, and the adverse findings and reasons relating to the applicant’s claimed reasons for failing to maintain enrolment in a registered course of study, have satisfied the Tribunal it should exercise the discretion to affirm the decision to cancel the applicant’s Student visa in this case.  

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

    DECISION

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

    Mr S Norman
    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.