Sandeep (Migration)

[2020] AATA 144

Sandeep (Migration) [2020] AATA 144 (29 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Sandeep

CASE NUMBER:  1804471

HOME AFFAIRS REFERENCE(S):          BCC2017/4262809

MEMBER:Wendy Banfield

DATE:29 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 January 2020 at 5:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – failure to maintain enrolment – unsatisfactory academic progress – consideration of discretion – difficulties settling into student life – length of time in Australia without engaging in study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 February 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant did not undertake a Bachelor degree which was the purpose of the visa, he did not maintain enrolment in a registered course of study for more than six months and failed to make academic progress over a substantial period of time. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 25 years old. He came to Australia on 9 December 2014 as the holder of a Subclass 573 Student visa and was enrolled to study a Diploma course leading to a degree. Since his arrival the applicant has completed a Certificate IV and Diploma of Business. As of the date of the hearing, he has departed Australia once since his arrival for approximately three weeks.

4. Prior to the hearing the applicant submitted the following evidence:

   ·     Psychologist’s reports dated 18 May 2015 and 1 July 2015;

   ·     Applicant’s academic record from secondary school in India;

   ·     Certificate and academic transcript for a Certificate IV in Business dated 7 January 2016;

   ·     Statement of attainment towards a Diploma of Business dated 4 May 2017.

   The hearing

5. The applicant advised he came to Australia in December 2014 to attend University of Wollongong (UW). He had enrolled in a package of courses including a Diploma and Bachelor degree in Banking and Financial Services. The applicant said the university was far from Sydney and he requested a transfer. He then enrolled with an education provider in Sydney where he studied a Certificate IV in Business. When he began his Diploma the college closed and he was referred to another provider.

6. The Tribunal asked the applicant why he studied a Certificate IV course when he had been enrolled in a Diploma and Bachelor’s. He said in India he was a science student but he was advised by an agent to study Accounting. As he did not have a background in Accounting, he was told to do a Certificate course first. The applicant said he had successfully studied science in high school but did not pursue that field as he was advised it would be better for his future to study Accounting. He chose to study in Australia because there was too much competition in India.

7. The applicant said he sought a refund of his fees paid for a Bachelor degree to the college that closed but it was denied. Thereafter his family’s financial situation was not good which led to the gap in study of six months referred to by the Department. According to the applicant he studied hard and expects to get credit for some of his subjects. He claimed that he will then be able to complete a Bachelor degree in two years.

8. The Tribunal put to the applicant that he had been required to study higher education and to undertake a Certificate course he should have applied to change his Student visa class. The applicant said he was advised by UW and others that he should start with a Certificate course. He confirmed he completed a Diploma course in 2017. The applicant said he had only been enrolled in Bachelor degree courses in Banking and Finance and Accounting.

9. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because subject to his comment or response it appears he has been enrolled in different Bachelor programs that have all been cancelled. The information put to him was that according to the Provider Registration and International Student Management System (PRISMS), he has been enrolled in Bachelor degrees in Banking and Finance, Accounting and Business. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and was advised that he may seek additional time. The Tribunal advised that if he requested time to respond his request would be considered and the hearing may be adjourned.

10. The applicant did not request time to respond but said he knew about the record. He proceeded to explain he was enrolled at UW to study a Diploma and Bachelor’s; he then transferred to AIPE in Sydney to study a package of Certificate IV, Diploma and Bachelor of Business with accounting subjects. He did the Certificate course there until the college closed and he moved to Hambro College. There he completed a Diploma and was going to study a Bachelor degree but his visa was cancelled when he still had some subjects left of the Diploma. The applicant said during this period he was trying to get a refund from AIPE.

11. The Tribunal reminded the applicant that despite his explanation, he had been required to maintain enrolment. He was asked how he had been going to continue his studies at the time given the financial situation. According to the applicant his father needed some time to provide funds but it was too late and the Department cancelled his visa. When asked what he did when he was not studying the applicant said he enrolled in an English course but did not complete it. He also worked part-time which he said was in accordance with his visa conditions.

12. The Tribunal asked the applicant to comment on his submission to the Department that he had withdrawn from UW because of stress from travelling. He said he did not live in Wollongong because he had no friends or accommodation there. He tried travelling for two months but it was too difficult due to early lectures. The applicant referred to his medical evidence in this regard.

13. The applicant was asked to comment on any compelling need to remain in Australia. He said he wants to complete his Bachelor degree here because it will give him a good future. The applicant said he did not continue with a Bachelor’s due to the distance to UW and because the second college closed. Then he only held a Bridging visa and could not study more than four months. He said he is allowed to work for 20 hours and has a casual delivery job. Regarding any hardship that may result from his visa being cancelled, the applicant asked for time to finish a Bachelor of Accounting. He said there are no consequential cancellations and he is aware of the legal consequences. The applicant does not have children or any civil or political issues that would prevent him returning to his home country.

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

15. 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

16. 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. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). 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.

    Does the ground for cancellation exist?

17. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

18. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

19. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

20. The Tribunal has considered the claims and submissions made by the applicant as well as prescribed matters under the Act where applicable, findings and reasons relating to the conduct of the applicant and whether the applicant is or is likely to be a genuine student or whether such conduct is contemplated by the visa held. The applicant’s education history in Australia is that he was first granted a Student visa in December 2014 to study a Diploma and Bachelor degree. Despite holding a visa that required him to study higher education, the applicant has only completed one Certificate and one Diploma course since his arrival. He also remained in Australia without being enrolled to study for six months. The applicant gave reasons for his failure to complete a degree and for the gap in his enrolment but did not dispute there were grounds to cancel his Student visa.

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

22. 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’.

    ·     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 travelled to Australia holding a Student visa and had obtained enrolment in a Diploma course and Bachelor degree. He began his studies at UW until he transferred to a college in Sydney. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

24. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant advised he wants to complete his Bachelor degree in Australia because it will give him a good future. He had made a similar submission to the Department as well as advising at the time that he was enrolled in a Bachelor of Accounting that was due commence on 8 May 2018.

25. The Tribunal accepts the applicant may wish to remain in Australia to study but does not find this to be a particularly strong reason why he needs to stay. Given the applicant’s academic history over the course of nearly five years, the Tribunal is not satisfied he will remain enrolled or complete a degree, which is the reason for the grant of the visa in 2014. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

26. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment, study at the appropriate level, or progress satisfactorily is not consistent with being a genuine student and weigh against the applicant in this case.

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

27. The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant did not make any specific claims in this regard but asked for time to finish a Bachelor of Accounting. He submitted to the Department that cancellation of his visa will be disappointing as he is an only child and his parents want him to receive higher education in Australia. The Tribunal accepts there will be a degree of hardship caused as a result of the applicant’s visa being cancelled and affords some weight in his favour in considering this criterion.

28. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

29. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not complete a course in the higher education sector; he remained in Australia without being enrolled to study for six months and failed to make satisfactory academic progress as would be expected of a genuine student. The applicant gave reasons for this which included his decision to transfer to an education provider in Sydney because UW was too far away from where he was living. The applicant provided a psychologist’s report dated 18 May 2015 which appears to have been produced in order to obtain a release letter from UW. The report refers to the applicant’s difficulties adapting to living and studying in Australia with only one friend and suffering from stress, anxiety and depression. The report states that at the time, the applicant wanted a release letter as he was planning to return to India and enrol in a university there. The Tribunal places some weight on the applicant’s claims of difficulties settling into the student life in Australia and accepts he sought some medical assistance in order to obtain a release from UW.

30. The applicant transferred to a college in Sydney and enrolled in a Certificate IV in Business leading to a Diploma and Bachelor degree. A second psychologist’s report sets out the applicant’s improvement in his mental health and his decision not to return to India. The applicant also claimed that after he finished the Certificate IV in Business the college closed and he was not able to get a refund of money paid. It was for this reason, and his family’s financial situation at the time that the applicant claimed led to him not being enrolled for six months. 

31. The Tribunal accepts the applicant may have faced some issues adjusting to studying in Australia and with his education provider but is not satisfied they account for his failure to behave in the manner of a genuine student. Although the applicant may have encountered some stressful events they are not adequate reasons for the applicant to stay in Australia without studying at the appropriate level and without being enrolled for half of the year.

32. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. It was open to him to apply to change his visa class if he did not feel able to study in the higher education sector and he could have deferred his studies rather than fail to maintain enrolment. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

33. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

34. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

35. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be 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

36. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

37. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

38. There are no other relevant mattes to be considered in the applicant’s case.

    Conclusion

39. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia without conducting himself as a genuine student to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Wendy Banfield
   Member

   
   

   ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.