Rajput (Migration)

[2020] AATA 2688

Rajput (Migration) [2020] AATA 2688 (30 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Aditya Rajput

CASE NUMBER:  1931116

DIBP REFERENCE(S):  BCC2019/3240756

MEMBER:  Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:          30 March 2020 at 2:12 pm (VIC time)

DATE OF WRITTEN RECORD:                27 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 27 May 2020 at 11:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – failure to respond to NOICC – consideration of discretion – significant breach – reliance on agent – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 October 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

1. At the hearing on 30 March 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 30 April 2019, made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 student visa, under section 116(1)(b) of the Migration Act 1958.

1. The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australian Qualifications Framework (“AQF”) at the same level as or at a higher band of the registered course in relation to which the visa was granted.

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

1. The applicant appeared before the tribunal on 30 March 2020 to give evidence and to present arguments.

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

1. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(b) of schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition, under section 166(1) of the Act, the visa may be cancelled. Paragraph (2)(b) of condition 8202 states that:

A visa holder must maintain enrolment in a registered course that once completed, will provide a qualification from the Australian Qualifications Framework and is at the same level as, or at a higher level than, the registered course in relation to which the visa was cancelled.

1. The applicant’s visa was granted for the purpose of studying a Bachelor of Business at the Holmes Institute, which is an AQF level 7 course. Information available to the Department in the Provider Registration and International Student Management System indicated that on 11 April 2019, the applicant’s enrolment in the Bachelor of Business was cancelled by the education provider and the applicant has not maintained or sought enrolment in, or been enrolled in, an AQF level 7 course since this date.

1. PRISMS indicated that the highest COE the applicant held thereafter was for an enrolment in a Diploma of Hospitality and Management. That enrolment is at an AQF level 5.

1. As the applicant was not enrolled in a course at the AQF level 9 master’s degree or level 10 doctorate degree, the circumstances of clause 8202(3) do not apply to him.

1. On 2 October 2019, a notice of intention to consider cancellation was sent to the applicant. No response was received to the notice of intention to consider cancellation. At the hearing on 30 March 2020, the applicant acknowledged that he breached the visa condition and

acknowledged that he was not enrolled in the Bachelor of Business, which once completed, would provide him with an AQF level 7 qualification.

1. The applicant gave honest and candid evidence at the hearing that it was an honest mistake that he failed to comply with the condition of the relevant visa, as he simply was not aware of it at the time. He had sought advice from an education agent and migration as to the course that he enrolled in, being a cookery course and the Diploma of Hospitality and Management and unfortunately for the applicant, the individual who advised him to enrol in the AQF level 5 course did not inform him that it would be a breach of his visa condition to not maintain enrolment at the level 7 course.

1. The applicant gave further evidence that due to various family difficulties he was suffering from and dealing with on or around the time of October 2019, he did not receive the notice of intention to consider cancellation until on or after 20 October 2019, simply because he did not check his mail.

1. The Tribunal finds that the applicant’s failure to respond to the notice of intention to consider cancellation was not done in bad faith and on that basis, makes no adverse finding against him for his failure to respond to the relevant notice.

1. The Tribunal explained to the applicant that notwithstanding his reliance upon an education agent who recommended that he enrol in the cookery course and the Diploma of Hospitality and Management, it is the expectation of the Department that visa holders are aware of the relevant conditions that attach to their visa and if one changes course, then one ought to contact the Department to change the visa, so that it aligns with the relevant course that an applicant is undertaking and that a failure to be aware of the visa conditions that attach to one’s visa is not considered to be a reason that is beyond the control of a visa holder.

1. Based on the above, the Tribunal finds that the applicant has not complied with subclause 8202(2)(b), as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted.

1. Having found that the applicant has not complied with a condition of the visa, the Tribunal must now consider whether the visa should be cancelled.

1. 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, the matters in the Department’s procedure advice manual - general visa cancellation powers manual.

1. As to the applicant’s purpose for travel and stay in Australia, the applicant’s student TU 500 visa was granted on 18 October 2018 for the purpose of studying towards a Bachelor of Business degree and the visa itself was granted until 15 March 2021. Information available in the PRISMS system indicate that the applicant’s enrolment was cancelled on 11 April 2019, prior to which the applicant obtained a new enrolment in a Certificate in Cookery and a Diploma of Hospitality and Management.

1. The applicant’s student visa was granted on the basis that the applicant was enrolled in an AQF level 7 bachelor degree however, at the time of this decision, it is clear that the applicant holds an enrolment at the AQF level 5 diploma level. Based on the above evidence, it is clear that the applicant has not maintained enrolment in a course at the same level as, or higher level than the registered course in relation to which the visa was granted. The Tribunal finds that the applicant’s purpose for being in Australia is now no longer in accordance with the purpose for which the visa was granted and the Tribunal affords this some weight in favour of the visa being cancelled.

1. As to the extent of compliance with visa conditions, there is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions that his visa is subject to. However, given the length of time for which the applicant has not been enrolled in the correct level of enrolment, which is fundamental to the grant of a student visa, the Tribunal finds the non-compliance with the visa condition to be reasonably significant, in view of the length of time the applicant has been noncompliant with the condition and the Tribunal gives this factor some weight in favour of the visa being cancelled.

1. As to the circumstances in which the ground for cancellation arose, as I have already set out, the applicant has given honest and candid evidence that he was simply unaware, unintentionally and certainly not in any bad faith, of the visa condition that attached to the grant of his student visa. That is to say, he informed the Tribunal that he sought advice from an education agent prior to enrolling in the cookery and Diploma of Hospitality and Management course that I have just set out above and the agent did not inform him of the visa condition that attached. The applicant gave honest and candid evidence that had he known it would have been a breach of his visa condition to downgrade his enrolment, he would not have done so.

1. Whilst the Tribunal has some sympathy for this position, it is considered to be the responsibility of a visa holder to be aware of the conditions that attach to their visa. Therefore, on the basis of these matters, I am not persuaded that the reason for the visa breach was due to a circumstance beyond the control of the applicant and I give this significant weight in favour of the visa being cancelled.

1. As to a degree of hardship that may be caused to the applicant and his family members if the visa is cancelled, the Tribunal acknowledges that there would be some financial hardship occasioned to the applicant if his visa were to be cancelled, because he would not be able to complete his current course. The Tribunal further acknowledges that it is the dream of the parents of the applicant for him to study in Australia and obtain a qualification in Australia and that it is his wish to return to his home country to work in the family restaurant business with his father on the basis of completing the hospitality and management diploma that he was undertaking prior to his visa being cancelled.

1. The Tribunal acknowledges that the applicant would suffer some hardship as a result of the visa being cancelled. However, in view of the fact that I have found that the reason for the noncompliance is not due to a matter beyond the control of the applicant, I give the hardship suffered by the applicant minor weight in favour of the visa not being cancelled.

1. As to the applicant’s past and present behaviour towards the Department, as I have already set out, the applicant did not respond to the notice of intention to consider cancellation however, the Tribunal accepts the applicant’s evidence at the hearing, that he had reasonable reasons for not responding to the notice of intention to consider cancellation. The applicant was confronted with various family difficulties on or around the relevant time and he simply did not check his mail due to those ongoing challenges at the relevant time. The Tribunal finds that the applicant has not acted in any bad faith by failing to respond to the notice of intention to consider cancellation and I therefore give these matters no weight, in favour of the visa being cancelled.

1. There is no evidence before the Tribunal of any consequential cancellations under section 140 of the Act as a result of the visa holder’s cancelled visa and I therefore give this factor no weight for or against cancelling or not cancelling the visa.

1. If the visa were to be cancelled, the applicant would become an unlawful citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia within the required time. The applicant may also be affected

by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia.

1. However, these are mandatory and intended consequences of the legislation and in view of the fact that I have found that the reasons for the visa breach were not on account of a matter outside of the control of the applicant, I do not give these considerations any weight against cancelling the visa.

1. There is no information before the Tribunal to indicate that the circumstances of this case are such that would engage Australia’s international obligations and I therefore give this factor no weight for or against cancelling or not cancelling the visa.

1. As to whether there are any other relevant matters, the applicant candidly informed the Tribunal that he did not intend to breach his visa condition, that had he been advised by the relevant education agent who he engaged, that it would be a breach of his visa condition to downgrade his course, then he would not have embarked upon the course that he did. The applicant gave further evidence that it was based on a friend’s recommendation that he undertook the cookery and hospitality courses and that all in all, it was not his intention to breach his visa condition in the fashion that he did.

1. The Tribunal takes these matters into account and on account of the applicant’s honest and candid evidence that he was simply unaware of the visa condition attached to his visa, the Tribunal gives these matters some very minor weight in favour of not cancelling the visa.

1. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out that the reasons for the breach of the visa condition were not matters that were outside of the control of the applicant.

1. It is also clear that the considerations I have arrived at after examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. The Tribunal affirms the decision to cancel the applicant’s class TU visa.

DECISION

1. The Tribunal affirms the decision under review.

Vanessa Plain Member