Randev (Migration) - [2018] AATA 5220

Randev (Migration) [2018] AATA 5220 (4 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amritpal Singh Randev
CASE NUMBER:  1710314
DIBP REFERENCE(S):  BCC2017/807740
MEMBER:Tigiilagi Eteuati
DATE AND TIME OF
ORAL DECISION AND REASONS:          4 September 2018 at 12:55 pm (QLD time)
DATE OF WRITTEN RECORD:                26 November 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review.
Statement made on 26 November 2018 at 5:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – enrolment cancelled – consideration of discretion – academic performance – attendance record – ability and motivation to successfully undertake an education course in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cl 573.223, 573.231; Schedule 8, Conditions 8202, 8516
CASES
Singh v Minister for Immigration & Anor [2015] FCCA 2998

APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 May 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s subclass 573 Higher Education Sector visa under section 116 of the Migration Act 1958 (the Act).
At the hearing on 4 September 2018 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
The delegate cancelled the visa under section 116(1)(b) on the basis that the applicant did not meet the condition of his visa to continue to satisfy primary and secondary criteria for the grant of his visa. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 September 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under section 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. Relevantly to this case these include grounds set out in 116(1)(b). If satisfied that the grounds made out, the decision-maker must proceed to consider whether the visa should be cancelled having looked at all relevant circumstances which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) if the Minister or Tribunal is satisfied that the holder did not comply with a condition of their visa.
In this instance, condition 8516 attached to the applicant’s visa. This condition requires that a visa holder must continue to be a person who would satisfy the primary and secondary criteria as required for the grant of a visa. In the present case the delegate found the applicant had failed to continue to satisfy the criteria for the grant of the visa in paragraph 573.223(1A) or the alternative criteria in paragraph 573.231 of Schedule 2 to the Migration Regulations. For a person in the applicant’s circumstances these criteria can be summarised as Smith J did at paragraph 31 of his reasons in Singh v Minister for Immigration & Anor [2015] FCCA 2998 as follows.
In summary, in order to satisfy the criteria for the grant of a class TU visa by reference to subclass 573 an applicant in this applicant’s circumstances had to either have had both at the time of the application, and the time of the decision, a confirmation of enrolment in a course of study for the award of relevantly a Bachelor’s degree or at the time of the decision be enrolled in, or be subject of a current offer of enrolment in a course of study specified by the Minister.
The Minister’s delegate determined that the applicant had not met the criteria in paragraphs 573.223(1A) or the alternative criteria in paragraph 573.231 of schedule 2 to the Regulations since 22 August 2016 when his enrolment in a Bachelor of Business with Holmes College was cancelled. This is consistent with records held by the Department which were put to the applicant in the required way and this was conceded by the applicant. On the basis of the above information the Tribunal finds that the applicant ceased to meet paragraph 573.223(1A) with his enrolment in a Bachelor of Business was cancelled on 22 August 2016 and he did not meet the alternative criteria in paragraph 573.231 as he was not enrolled in a course specified by the Minister. Indeed, the applicant was not enrolled in any course between 22 August 2016 and 3 April 2017.
For these reasons the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As this ground does not require mandatory cancellation under 116 the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa the Tribunal has had regard to all matters and evidence which have been provided by the applicant and his representative to the Department and the Tribunal and it has also considered Departmental policy contained in the Department’s Procedures Advice Manual.
At the hearing the applicant said that when he arrived in Australia in February 2013 he was enrolled in a Certificate IV in Business, in his words, leading to a Bachelor of Business. It appears from the records accessible by the Tribunal on the PRISM system that the applicant, when he arrived in Australia was, indeed, enrolled in a Certificate IV in Business to be followed by Diplomas in Management and Business at Sarina Russo to be followed by a Bachelor of Business at James Cook University. This is also consistent with the applicant’s representative’s response to the Notice of Intention to Consider Cancellation which I will refer to as the NOICC.
At the hearing, initially the applicant indicated that he had successfully completed the Certificate IV in Business; however, this appeared to be contrary to the documents that he had provided in response to the NOICC which indicated that he had passed two units going towards the Certificate IV. It was also contrary to the records in the PRISM system, which were put to the applicant in the required way, which indicated that the applicant did not complete the Certificate IV in Business and that his enrolment in the Diploma of Management and Business was cancelled on 3 January 2014 for unsatisfactory course progress indicating that he also had unsatisfactory course progress in the Certificate IV in Business and that his attendance in both of these courses was very poor. The applicant’s enrolment in the Bachelor of Business at James Cook University was subsequently and consequently cancelled on 14 January 2014.
The applicant said that after his enrolment in the Bachelor of Business was cancelled he approached a business called Max Migration as he said that he needed to enrol in courses including a Bachelors course to meet the conditions of his visa. He said that he spoke to someone at Max Migration, although he could not remember the name of the person to whom he spoke. He said that that person indicated that he could gain enrolment for the applicant in various Diplomas at Skills Institute Australia and that, when the applicant was ready, he could re-enrol in the Bachelors course. The applicant subsequently enrolled in Diplomas in Business, an Advanced Diploma in Business and a Diploma of Marketing at Skills Institute Australia on 16 January 2014.
The Tribunal notes at this point that the applicant had breached conditions 8516 as he was no longer enrolled in the Bachelors course and also condition 8202 as he was not enrolled in any course from 14 January 2014 to 16 January 2014. The applicant said that he commenced the Diploma of Business beginning of 2014 and completed that course in mid-2014 and he has provided evidence of the certificate in relation to that Diploma.
He said that he then began the Advanced Diploma of Business at Skills Institute Australia in the middle of 2014 but that he withdrew from the course at the end of 2014 as he was failing that course.
He said that he did not begin the Diploma of Marketing in which he was enrolled as he did not have the funds to pay the fees for that course as he had squandered the money that his parents had sent him for his school fees. The applicant said that he did not undertake any study from the end of 2014 until November 2015 when he enrolled in a Bachelor of Business at Holmes College. He said that when he began the Bachelor of Business at Holmes College in November 2015 he was enrolled in four subjects. He said that he failed all four subjects during his first semester at Holmes. He said that after he failed those subjects he approached Holmes indicating that he no longer wished to undertake a Bachelor of Business and wished to undertake a Diploma at Holmes instead but he said that Holmes refused this request.
He said that he, therefore, began his second semester at Holmes in the first semester of 2016 where he was again enrolled in four units. This time he indicated that he passed two units and failed two. The applicant indicated that he had wished to continue studying at Holmes but that Holmes College had indicated that he was excluded from further studies at Holmes because of his poor academic performance. This is contrary to the response to the NOICC which was provided by the applicant’s representative in which he indicated that the applicant ceased to study at Holmes and did not continue the studies as Holmes Institute was not fulfilling his specific needs. At the hearing the applicant was adamant this was not the case and that Holmes had excluded him from studies. The applicant said that after his enrolment at Holmes was cancelled on 22 August 2016 he returned to Max Migration who indicated to him that they would continue to try to seek for the applicant to be re-enrolled at Holmes College. They indicated to him that they had some kind of affiliation with Holmes College. The Tribunal notes that from 22 August 2016 the applicant was again in breach of both conditions 8516 and 8202 as he was not enrolled in a Bachelors course or any other higher education course in Australia and, in fact, he was not enrolled in any course between that time and 3 April 2017.
The applicant said that after 22 August 2016 he also applied to other institutions including Griffith University for enrolment in a Bachelors course. He said that he was unsuccessful in obtaining further enrolment in any other courses. The Department sent an email to the applicant on 30 March 2017 asking the applicant to confirm his contact details as the Department needed to send the applicant a letter in regards to his visa. Shortly thereafter the applicant said that he returned to Max Migration and that Max Migration indicated that he should enrol in further courses and enrolled the applicant in a Diploma of Project Management and an Advanced Diploma of Project Management on 3 April 2017. The first of those courses to begin on 18 April 2017, although the applicant has admitted that after August 2016 he has not undertaken any further studies in Australia.
The Tribunal notes that the visa that was cancelled in this case was issued to the applicant in May 2016, less than four months before he ceased all his studies in August 2016. The applicant was sent a NOICC on 6 April 2017 and he, through his agent, replied to that NOICC on 5 May 2017. In that response the applicant’s agent indicated that the applicant had ceased studying at Holmes because Holmes was not sufficiently supportive and did not meet his specific needs. He also provided that the applicant’s grandfather had passed away in January 2017 and that this, along with his failure academically up until this point, had caused the applicant to be depressed.
Although no medical evidence was provided to support this diagnosis, the applicant’s representative provided a document entitled Death Certificate which has been untranslated and is in a foreign language which is unintelligible to the Tribunal. However, for the purpose of these proceedings the Tribunal is willing to accept that the applicant’s grandfather passed away in January 2017.
The applicant’s visa was cancelled on 8 May 2017 but because his visa was cancelled for breach of condition 8516 there was no bar preventing him from reapplying for a further visa offshore. However, the applicant did not leave Australia to study in India or to apply for another visa to come to Australia; instead, he has remained in Australia from the cancellation of his visa until today.
The applicant indicated that he approached the Department of Immigration to seek work and study rights in Australia but this was refused. When asked when this occurred the applicant was unable to provide the Tribunal with a date and was evasive with the Tribunal. The Tribunal does not accept that the applicant ever approached the Department of Immigration requesting for work or study rights after his visa was cancelled.
The Tribunal asked the applicant whether he or any of his family members would suffer any hardship if his visa were to remain cancelled and he said, yes, that it would be embarrassing for him to return to India having not completed a Bachelors course. He indicated that he had family members studying at other places overseas and it would be embarrassing for him to return to his village in the Punjab having not completed a Bachelors course after being here for so long.
In the submissions provided by the applicant’s agent he also indicated that the applicant may suffer financial hardship as he may not be able to secure a well-paying job in India, that obtaining admission to a tertiary institute in India may be difficult and that the applicant’s family had already expended a large amount of money in sending the applicant to Australia and that they may suffer “a financial, emotional and psychological hardship”.
At the hearing the applicant also indicated that he has an Australian citizen partner in Australia with whom he lives. He indicated that if his visa remained cancelled that he would leave Australia and attempt to apply for another student visa offshore. He said that he and his partner had discussed the matter and that if he were unable to return to Australia that his partner would relocate to India where they would be married and settle.
The Tribunal raised its concern with the applicant that because of his very poor academic performance in the past including his failure to complete even a Certificate IV in Business and because on his evidence he had failed six out of the eight units he had undertaken in the Bachelors course at Holmes that he may not have the ability to successfully undertake an education course in Australia. The applicant indicated that he had the ability to successfully undertake a course if he were given the chance and asked the Tribunal for another chance to undertake further studies in Australia. He indicated that one of the reasons why he had been unsuccessful previously was he had not applied himself including when he first arrived in Australia to undertake the Certificate IV where he was not satisfactorily attending classes.
The Tribunal also raised its concern with the applicant that the applicant may not have the will and desire to successfully undertake courses in Australia. The Tribunal indicated that this concern arose from the fact that he was not satisfactorily attending his courses at Sarina Russo, that he had gone for long periods of time without studying at all including from the end of 2014 up until November 2015 and that he had not studied at all after August 2016. The Tribunal also raised with the applicant that his failure to study at all since August 2016 or to return to India to apply for another visa or to commence studies there may indicate that he was not a genuine student. The applicant indicated that he did intend to study, that he had the will and desire and if given another opportunity he would do so. He indicated that if he was not a genuine student that he would have simply married his partner in Australia and applied to remain permanently in Australia on that basis.
The Tribunal finds that the applicant does not have the ability to successfully undertake an education course in Australia. That is evidenced by his very poor academic record in the past as mentioned previously.
Further, the Tribunal does not consider that the applicant has the will or desire to successfully undertake a course in Australia. That is evidenced by the applicant’s failure to maintain satisfactory attendance in his courses at Sarina Russo and the long periods of time in which the applicant was not studying at all including from the end of 2014 to November 2015 and then from August 2016 up until the present date.
The Tribunal also notes that the applicant, although he enrolled again in vocational courses in Project Management in April 2017 did not commence any studies in those courses even prior to the cancellation of his visa and as the Tribunal has found that the applicant did not seek study rights with the Department, the Tribunal considers that this also indicates that the applicant does not have the will and desire to study. As matters stand, the applicant has not studied at all on his own admission since August 2016 and it is now September 2018.
The Tribunal is willing to accept that the applicant and his family members may suffer some disappointment and be upset that his visa was cancelled before he was able to successfully complete a Bachelor’s degree in Australia. The Tribunal has also taken into account that the applicant has told the Tribunal that he has been deceiving his family and that they are unaware that his visa has been cancelled and that on learning that this is the case that may cause them some considerable distress. The Tribunal has also considered that the applicant’s family members have expended a large amount of money while the applicant has been here and the submissions by the applicant’s representative that it may be difficult for the applicant to gain admission in a higher education institute in India and that his prospects of securing what has been described as a suitable job may be adversely affected by his inability to complete a degree course in Australia.
The Tribunal has also considered that the applicant has an Australian citizen partner in Australia and on his evidence that she would be likely to relocate to India if the applicant were not able to secure another visa to Australia. However, the purpose of a student visa is for an applicant to study in Australia. As the Tribunal has found that the applicant does not have the will and desire to successfully undertake an education course in Australia, it appears that setting aside the decision would simply delay the inevitable conclusion that the applicant would have to return to India without a degree. The Tribunal notes that the applicant has been granted two subclass 573 visas to complete a Bachelors course and has been unable to do so during the currency of those visas.
It appears that the only utility to this review is that, if the applicant is successful, he will be able to apply for another student visa onshore, whereas if he is unsuccessful, he will have to apply for another visa offshore. That is so because even if the applicant’s visa had not been cancelled, it would have expired on 30 September 2017 and because the applicant’s visa was cancelled for breach of condition 8516 there is no bar under public interest criteria 4013 preventing him from being successfully granted a visa for a period of three years.

The Tribunal finds that the applicant’s lack of ability and desire to successfully undertake an education course in Australia heavily outweighs any hardship that he, his family members, and his partner may face because of the cancellation of the applicant’s visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s class TU visa. The time is 1.30. That is my decision and the oral reasons for my decision.
Tigiilagi Eteuati
Member