Shakya (Migration)

[2020] AATA 169

Shakya (Migration) [2020] AATA 169 (22 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Binesh Shakya (‘Applicant’)

CASE NUMBER:  1932269

HOME AFFAIRS REFERENCE(S):          BCC2019/3261974

MEMBER:Dr Jason Harkess

DATE:22 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 22 January 2020 at 2:05pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant failed to attend tribunal hearing – not a genuine student – applicant failed to maintain enrolment in a full time registered course – breached condition 8202 – applicant had downgraded his enrolment –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 338, 347
Migration Regulations 1994 (Cth), Schedule 2, cl 500.611, Schedule 8

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of Nepal and is 25 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 7 November 2019 cancelling his Subclass 500 student visa pursuant to s 116(1) of the Migration Act 1958 (Cth) (‘the Act’).

Original Visa Grant

1. The Applicant’s visa was granted on 22 March 2018. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

1. The visa had an original expiry date of 10 September 2020 before it was cancelled. It provided for more than two years five months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.

Reasons for Cancellation

1. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, the delegate found that the Applicant had failed to comply with that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would 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 had been granted.

1. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

1. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicant when he lodged his review application on 13 November 2019.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the ground for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 15 January 2020. The Applicant appeared before the Tribunal by video link to give evidence and present arguments.

1. The Applicant was assisted by his registered migration agent, Mr Wilson Sharma, who also attended the hearing by video link.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be affirmed in this case.

GROUND FOR CANCELLATION

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

1. Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa.[2] It requires the visa holder to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

   [2] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).

1. The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.[3]

   [3] The AQF is administered by the Department of Education and Training. See generally < type="1">

2. The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ‘downgrading’ to a simpler course. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

Has the Applicant Failed to Comply with Condition 8202(2)(b)?

Delegate’s Allegations and Findings

1. As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete, an English Language Programs course followed by a Bachelor of Tourism and Hospitality Management. The English course was to commence on 29 January 2018 and finish on 2 March 2018 and was run by Academy of English. The Bachelor of Tourism and Hospitality Management was to follow the English course, with a course commencement date of 19 March 2018 and finish date of 10 July 2020. The Bachelor’s course was to be undertaken at Academies Australasia Polytechnic Pty Limited. The Bachelor’s course, being the higher-level course of the two courses for which the visa was granted, sits at AQF Level 7.

1. As the delegate’s decision record further notes, on 9 August 2018 the Applicant’s enrolment in the Bachelor of Tourism and Hospitality Management course was cancelled by the course provider. The Applicant then enrolled in a Certificate IV in Commercial Cookery, commencing on 15 October 2018 and finishing on 12 April 2020, and a Diploma of Hospitality Management, commencing on 27 April 2020 and finishing on 25 October 2020. Both the Certificate IV and Diploma courses were to be undertaken at Elizabeth Bence Pty Ltd (trading as Duke College). The Certificate IV course sits at AQF Level 4 while the Diploma course sits at AQF Level 5.

1. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[4] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued.

   [4] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

1. The delegate found that the Applicant had breached Condition 8202(2)(b) of his visa because he had downgraded his enrolment from an AQF Level 7 course to an AQF Level 5 course.

Applicant’s Response to Allegations

1. The Department of Home Affairs (‘the Department’) wrote to the Applicant by letter dated 14 October 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the matters that have been summarised above and put the Applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The Applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.

1. The Applicant responded to the NOICC in writing on 18 October 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202 of his visa as alleged, although he sought to explain the circumstances giving rise to the breach.

1. At the hearing before the Tribunal on 15 January 2020, the Applicant admitted that his enrolment in the Bachelor of Tourism and Hospitality Management course was cancelled on 9 August 2018 and that he only maintained enrolment in a Certificate IV in Commercial Cookery and Diploma of Hospitality Management after that. The Applicant admitted that this amounted to a breach of Condition 8202(2)(b) of his visa.

Conclusion

1. Based on the evidence before the Tribunal, it is reasonably clear that the Applicant was in breach of his visa as alleged by the delegate. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(b) of his visa.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

1. The matters that ought to be considered are specifically listed in PAM3 as follows:

(a)   the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

(b)   the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

(c)   the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

(d)   the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

(e)   the Applicant’s past and present behaviour towards the Department (e.g. whether they have been truthful and co-operative in their dealings with the Department);

(f) whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

(g)   whether there are mandatory legal consequences arising from a decision to cancel the visa;

(h)   whether Australia has obligations under any relevant international agreements that would be breached as a result.

Purpose of Applicant’s Stay in Australia

1. The visa which the delegate cancelled was the Applicant’s third Australian student visa. To understand the purpose of this third student visa it is necessary to consider the Applicant’s student visa history.

1. According to the Applicant, he first arrived in Australia on 13 December 2013 shortly after having been granted his first student visa. That visa was valid for approximately two and a half years. It had been granted on the basis that the Applicant was enrolled in and would successfully complete an English course followed by an Advanced Diploma in Hospitality at Think College, which was then to be followed by a Bachelor of Business (Tourism and Hospitality) at La Trobe University.

1. The Applicant provided documentary evidence from Think College that shows that he completed the English course. However, by his own admission, he did not complete the Advanced Diploma in Hospitality. He said that he studied for only one semester in the Advanced Diploma course before he quit. He did not commence the Bachelor of Business (Tourism and Hospitality) course at La Trobe University.

1. According to the Applicant, he then enrolled in a Certificate IV in Business Administration, a Diploma of Management, an Advanced Diploma of Management, and a Bachelor of Professional Accounting at Holmes Institute. He started the Certificate IV in Business Administration towards the end of 2014 and has produced an academic transcript that demonstrates that he passed all units in his first term of studies. He also produced an academic transcript showing that he achieved competency in three units of the Diploma of Management course in the first half of 2015.

1. Near the expiry of his first student visa, the Applicant applied for and was granted his second student visa in early 2016. That second student visa had been granted on the basis that he was enrolled in and would successfully complete the courses referred to in paragraph 29 above. The second visa would last for another two years. However, he achieved very little during that period with respect to what he had proposed by way of study. He did not complete the Certificate IV in Business Administration. He did not complete the Diploma of Management. He appears not to have started the Advanced Diploma of Management at all. With respect to the Bachelor of Professional Accounting, the Applicant produced to the Tribunal an academic transcript showing his achievements. Of the six units in which he was enrolled in the Bachelor’s course, in 2016 and 2017, he failed every one. His final marks were 40% for Retail Management, 36% for Comparative Business Ethics & Social Responsibility, 32% for Economics & International Trade, 6% for Introduction to Accounting, 5% for Organisational Behaviour and 3% for Business Finance.

1. In early 2018 the Applicant applied for, and was granted, his third successive student visa, the cancellation of which is now the subject of review before the Tribunal. It seems reasonably clear to the Tribunal that the Applicant was granted his third student visa for the essential purpose of completing a Bachelor’s degree, namely the Bachelor of Tourism and Hospitality Management. Completing a Bachelor’s degree was the primary aim of each of his first two visas. The third student visa appears to have been granted in order to give the Applicant a final opportunity to achieve this goal. However, once again, he has failed to make any meaningful progress. The Applicant produced an academic transcript to the Tribunal relating to his first semester of studies in 2018 in the Bachelor of Tourism and Hospitality Management. It shows that he failed all four units in which he was enrolled. His enrolment in the Bachelor’s course was subsequently cancelled on 9 August 2018.

1. It is within this context that the Applicant’s non-compliance with Condition 8202 must be assessed. Given the Applicant’s history of failure associated with his previous two student visas, the Applicant’s transgression in this instance must be regarded as very serious. As discussed below, the breach of Condition 8202 on this occasion was largely attributable to the conscious decision-making processes of the Applicant. By his own choosing, he has violated the fundamental purpose for which his third student visa was granted. This weighs heavily in favour of cancellation of his visa.

1. The Tribunal has considered the possibility that the purpose of the Applicant’s visa could potentially be restored by the Applicant undertaking to enrol in and successfully completing yet another Bachelor’s course. In evidence, the Applicant stated that he has now progressed significantly in relation to completing a Certificate IV in Commercial Cookery. Documentary evidence in the form of an academic transcript was produced to the Tribunal which corroborated this claim. However, a Certificate IV is not a Bachelor’s degree. Completion of it does not, therefore, represent an immediate ‘fix’ to the situation the Applicant has created. The Applicant’s visa was not granted for the primary purpose of completing a Certificate IV course. It was granted for the primary purpose of completing a Bachelor’s course.

1. In oral evidence given at the hearing before the Tribunal, the Applicant made some suggestion as to the possibility of enrolling in another Bachelor’s course following his completion of the Diploma of Hospitality Management. Specifically, reference was made to the possibility of enrolling in a Bachelor of Culinary Management. The difficulty with this proposition is that the Applicant has already been afforded three opportunities to complete a Bachelor’s degree, having been granted three successive student visas to complete such a qualification. It seems reasonably clear to the Tribunal that he is either unable or unwilling to make satisfactory progress towards completion of a Bachelor’s degree. The Tribunal has considered the evidence of the Applicant to the contrary. Ultimately, the Tribunal does not accept this evidence. The Tribunal therefore sees little point in allowing the Applicant to remain in Australia for the purpose of completing a Bachelor’s degree. This consideration also weighs significantly in favour of cancelling his student visa.

1. Lastly, the Tribunal notes that, by their nature, student visas are ‘temporary’ and are designed to provide non-citizens the right of abode in Australia on a short-term basis for a very discrete purpose. Beyond his claimed desire to study, the Applicant has not claimed that he has any other legitimate reason for wishing to remain in Australia. The Tribunal finds that the Applicant has no compelling need to remain in Australia.

Circumstances Giving Rise to Ground for Cancellation

1. The Applicant’s NOICC response is reproduced below:

Dear Sir/Madam,

I am Binesh Shakya. I am writing this statement in response to the Notice of intention to consider cancellation of my Student visa from Department of Home Affairs.

Initially, I was an Accounting student prior to joining Bachelor of Tourism & Hospitality Management at Academies Australasia Polytechnic Pty Limited. While I was doing my Accounting, I used to work part-time in a kitchen and gradually, my interest grew more towards food and hospitality industry. With time, I got the opportunity to work as a Chef at Etiquite Catering as a part-timer which further boosted my interest in the field. I started to get involved and acquire more knowledge in food and hospitality industry. As my interest grew more and more in this area, I decided to join Hospitality Management Course. After a long thought and discussion with my family and friends, I decided to join Bachelor of Tourism & Hospitality Management to maintain the AQF Level of 7 for which I was initially granted the Student Visa.

On 19 March 2018, I joined Bachelor of Tourism & Hospitality Management at Academics Australasia Polytechnic Pty Limited to achieve my goal of making a career in Food and Hospitality Industry. But, when I started my classes, I found it completely different than I have thought of. It was hard for me to grasp as well as I was not able to implement my study at my work place. The course was more about management studies rather than teaching to get students involved in food and hospitality service. I wanted to start from the root level of the hospitality industry but the course was not suited to me as it focused more on management. My dream was to acquire knowledge in food and hospitality industry from basic level of the industry and contribute to the economy of my home country. But, as the course was progressing, I started thinking that the course would not deliver me of what I had thought of. I started to get depressed and was not able to perform well in the studies.

To overcome all these problems and to continue pursuing my dream, I joined Certificate IV in Commercial Cookery leading into Advanced Diploma of Hospitality Management at Elizabeth Bence School of Fashion, Duke College. After completing this course, I would be able to get all the basic and root level knowledge of food and hospitality industry and later joining the Bachelor of Hospitality Management would help me to gain managerial skills as well. After joining the course, I was able to perform well and my grades also improved a lot. Now, I am happy that the current course will help me to realize my dream and lead me to a successful career.

I consider myself lucky enough to have the opportunity to study here and I wish to complete my course here at Duke College. This place has taught me a lot of things which will forever stay with me and I believe that it will play a vital role in building my career and live my dream of starting a business in my home country in the very field of food and hospitality industry. With all due respect, I would be grateful if I am allowed to complete my studies here at Duke College. I am very thankful to the case officer for providing me with the time to look into my submission and hereby humbly request to provide me with an opportunity to complete my studies here in Australia.

1. The Applicant’s evidence given at the hearing before the Tribunal is generally consistent with the contents of his NOICC response. He said that his interest did not lie in accounting. He said that, shortly after he commenced the Bachelor of Tourism and Hospitality Management in 2018, he realised that three of the foundational units involved accounting, economics and marketing. He was not interested in these subjects. He said that his education agent had ‘lied’ to him about what the Bachelor’s course entailed. He said that he had told his agent that he wanted to study cooking. The Applicant attempted to convey to the Tribunal that he had been under a misapprehension as to what the Bachelor’s course involved. That, he says, is why he failed to make satisfactory progress and why he ultimately made the decision to abandon the course in favour of starting a Certificate IV in Commercial Cookery.

1. The Tribunal inquired of the Applicant as to whether he reviewed the enrolment documentation that his education agent would have provided to him before he instructed the agent to enrol him in the Bachelor of Tourism and Hospitality. The Tribunal drew the Applicant’s attention to the fact that such documentation would have informed the Applicant as to the subject matter covered in the Bachelor’s course. In particular, the documents would have revealed to the Applicant that the units that he was obliged to undertake at the outset of the Bachelor’s course covered subject matter that he did not like. The Applicant stated that he received such materials from the agent but he did not read them. He therefore did not know exactly what subject matter he would be studying in the Bachelor’s course until he actually started the course.

1. The Tribunal finds that the actions of the Applicant in this regard are quite incredible for a person who claims to be a genuine student. Given his history of failures with respect to his previous enrolments in Bachelor’s courses, the Tribunal would have expected that a genuine student in the Applicant’s position would have taken considerable care to ensure that the Bachelor of Tourism and Hospitality was indeed to the right course for him and that it would meet his particular needs. But it appears from the Applicant’s own evidence that he walked blindly into the classroom knowing very little about the Bachelor’s course other than what he had been verbally told by his education agent. The Tribunal does not accept the Applicant’s evidence that his agent had misled him. It seems implausible that an education agent would misrepresent to his own client the subject matter covered by a course when that same agent has provided the client with the relevant material that outlines the course content. The Tribunal finds that it is more likely that the Applicant simply was not interested in reading the material, to properly inform himself about the subject matter covered in the Bachelor’s course, because he was not genuinely interested in completing the Bachelor’s course. Had this evidence been before the delegate of the Minister who had granted the Applicant’s first student visa, before the decision was made to grant it, it is likely that the visa would not have been granted. This consideration weighs heavily in favour of cancelling the Applicant’s visa.

Extent of First Applicant’s Compliance with Visa Conditions

1. The Tribunal has given consideration to the Applicant’s compliance with other visa conditions that attached to the third student visa, as well as with the conditions of the first and second student visas that were previously issued to him. There is no information before the Tribunal that suggests that previous allegations have been formally made against the Applicant for non-compliance with his visa conditions. However, having regard to the material that has been considered above, and with the benefit of hindsight, it seems reasonably clear that there is a consistent pattern of failure on the Applicant’s part to make meaningful progress towards completion of a Bachelor’s qualification.

1. In this regard, there appears to be a case to answer that he has breached Condition 8202(2)(b), which imposes a continuing obligation on visa holders to make satisfactory progress in their courses of study. The Tribunal acknowledges that, to establish a breach of this condition, there must be evidence of the relevant course provider having certified that the particular student has failed to make satisfactory progress.[5] While there is no such evidence before the Tribunal, it seems that several course providers would have been justified in making such a certification in relation to the Applicant during the currency of all three of his student visas. This consideration weighs in favour of cancelling his visa.

Hardship

[5] See Maan v Minister of Immigration and Citizenship (2009) 179 FCR 581, [44]-[45].

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. He has expressed a continuing desire to do further studies in Australia, particularly his Certificate IV in Cookery so that he can go on to fulfil his dream of becoming a great chef. However, that is not the purpose for which his third student visa was granted. The Tribunal also notes that he can pursue a career as a chef without completing a Bachelor’s course.

1. The Tribunal otherwise acknowledges that both the Applicant and his family will suffer some degree of emotional hardship and disappointment if his visa is cancelled and he is forced to return to Nepal.

First Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, 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. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

1. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Nepal and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member