Sharma (Migration)

[2022] AATA 2570

Sharma (Migration) [2022] AATA 2570 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aashish Sharma

REPRESENTATIVE:  Ms Liuzhuo Chen (MARN: 1687418)

CASE NUMBER:  2003676

HOME AFFAIRS REFERENCE(S):          BCC2019/5279039

MEMBER:Joseph Lindsay

DATE:11 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 11 February 2022 at 12:54pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in studies – inconsistent advice from university in changing courses – allegations against migration agent – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant participated in an audio hearing with the Tribunal on 13 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, Ms Jaura. 

3. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 (Cth) (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?

6. 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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.

8. The applicant’s representative provided written submissions to the Tribunal. The Tribunal has considered these submissions. In the submissions received by the Tribunal on 13 September 2021, the applicant’s representative stated that on 22 January 2018, the applicant was granted a student (subclass 500) visa to study an Advanced Diploma of Engineering Technology at RMIT University starting from 5 February 2018 then a Bachelor of Engineering (Civil and Infrastructure) starting from 2 March 2020.

9. In the submissions, the representative makes admissions that the applicant was not enrolled in any course from around 7 January 2019 to around 7 February 2020. Further, at paragraph 36 of her submissions, the representative makes admissions that “it is undeniable that the applicant breached visa condition 8202.”

10. The Tribunal discussed these matters with the applicant. The applicant, in response, admitted that he did not remain enrolled in a registered course of study in the manner as stated by his representative.

11. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study from around 7 January 2019 to around 7 February 2020. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s 116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

12. 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 Procedural Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

13. In the hearing, the Tribunal spoke to Ms Jaura who said she is the applicant’s partner. Ms Jaura said the applicant had been scammed by his previous migration agent. Ms Jaura said she was also aware of others that have been scammed by the same migration agent. Ms Jaura said that she felt that the applicant was a genuine student. When asked what relevant information she wished to provide to the Tribunal, Ms Jaura said she had a bad experience with the same agent as the applicant. She said the agent’s name is Manan Ruparelia. Ms Jaura said Mr Ruparelia has gone to India. She said that Mr Ruparelia’s office was still open, and the office was called Endeavour Education Consultancy. Ms Jaura said she had not put in a complaint about Mr Ruparelia.

14. The Tribunal then spoke to the applicant about the applicant’s circumstances and discussed the information in the representative’s submissions with him. The submissions indicated that the applicant arrived in Australia in February 2018, and that his aim had been to complete a Bachelor of Engineering at RMIT. The submissions indicated that the applicant was very young when he first arrived in Australia, around 18 years old. The submissions indicated that the applicant felt he had been left out by his classmates, and that he got some racist comments from his classmates. The submissions indicated that the applicant felt he struggled to cope. When asked why he felt he struggled to cope, the applicant said he felt he was doing well with his course. However, the Tribunal put to the applicant that the submissions from the representative suggested otherwise. The Tribunal referred to paragraphs 6 and 7 of the submissions that states:

    6. After attending the classes for a few weeks, the applicant faced some challenges as he was left out by his classmates. He also received some racist comments from his classmates which brought his morale down. The applicant struggled to cope with the new life in Australia and started consulting his doctor back home over the phone due to anxiety and depression.

    7. In the meantime, the applicant became known that RMIT offers business management courses to undergraduate students. Thus, the applicant decided to change his course.

15. The Tribunal put to the applicant that his representative had indicated that, from essentially the beginning of his studies, the applicant was looking to change his course. The applicant explained that in his family there is a history of people becoming civil engineers, but he wanted to study business.

16. The Tribunal again referred the applicant to the submissions put forward by his representative that states:

    8. On 22 February 2018, the applicant contacted the RMIT university to inquire about a change of course. While the course coordinator replied to his email, she gave incorrect advice to the applicant. In particular, the course coordinator first advised the applicant that he could apply for a change of course through “apply direct” online. After realizing her advice was incorrect, the course coordinator advised the applicant that all he needed to do was to contact the business school then fill a paper to be signed by the host school. This advice turned out to be incorrect again.

17. The applicant then stated that from the very beginning he held concerns about his enrolment in the engineering courses, and that from the very beginning he had wanted to study a business course. He indicated that his enrolment in the engineering courses were largely based on his family’s expectations that he undertakes studies in engineering.

18. When asked what he did when he realised he wanted to study a business course, the applicant said he spoke to his student adviser about how he could change his course. However, he now believes he received incorrect advice about this process.

19. The Tribunal again referred the applicant to the submissions put forward by his representative that states:

    12. On 6 April 2018, the applicant received a notification from RMIT about the non-payment for the enrolled course and he was requested to pay the tuition within 3 days. As the applicant relied on the wrong advice given by his course coordinator, he did not organise the payment in advance. He contacted RMIT requesting for additional five days to organise the payment, but he did not receive a response from RMIT.

    13. On 13 April 2018, RMIT sent the applicant a confirmation to notify him that his CoE was cancelled but RMIT offered a reinstatement opportunity if the requested payment could be made before 22 April 2018.

    14. On 19 April 2018, the applicant paid RMIT the requested amount before the deadline. On 24 April 2018, the applicant contacted RMIT again in relation to the reinstatement and he made an explicit request to RMIT asking for a student counsellor to help his situation. However, he received no response from RMIT afterwards.

20. The applicant confirmed that this information was correct. The Tribunal then reviewed the emails provided in support of the applicant’s case. However, the applicant then made admissions that while the response to the Notice of Intent to Consider Cancellation (NOICC) came from his email address, the person was actually provided that response was his then agent, Mr Ruparelia, and not the applicant himself.

21. The emails provided by the applicant show that he did engage with RMIT about his concerns. However, the applicant then said he had issues in getting money from India to Australia in order to pay his fees. The applicant maintained that he was still unsure whether he would be able to make the fee payment for a business course, rather than pay the money for the engineering course fees. The emails showed that the course fees were actually paid in full, but after the due date.

22. The Tribunal put to the applicant that, in summary, he claimed that he started a course that he did not want to do, but he sought advice about how to change his course. However, the Tribunal referred to the emails that showed that the course provider RMIT was clearly advising him about the need to pay his course fees or his course enrolment would be cancelled. The Tribunal noted that the applicant paid the fees, but only after the course enrolment had been cancelled. The Tribunal made reference to an email dated 15 May 2018 where the applicant indicated that despite being aware that his course was going to be cancelled he indicated he was not comfortable with the course he was enrolled in. The Tribunal put to the applicant that as the visa holder he would reasonably be aware that in order to maintain compliance with his visa conditions he would have to remain enrolled. The representative then spoke and referred to the email dated 13 April 2018 from RMIT to the applicant advising him:

    As per the email sent to you by RMIT University on 13th April 2018, I am emailing to advise that you have been cancelled from the program as of 13th April 2018 and therefore you can no longer attend classes.

    RMIT University wishes to support you in your continuing education and we are offering the following option. If you wish to continue training with us and if you have the capacity to pay, we request that you make payment of the required amount in full of $7,631.70 through the RMIT online payment system by 22nd April 2018 (Tribunal emphasis).

23. The representative referred to the RMIT invoice dated 21 May 2018 showing that the fee amount of $7631.70 was processed on 19 April 2018, which was three days before the specified deadline. The representative said that the applicant believed that he had complied with RMIT’s requirements when he paid his fees.

24. The Tribunal then asked what the applicant was doing if he was not doing his engineering course. The applicant said he was still trying to find a way to enrol in a business course. The applicant said RMIT had refunded the money for his course fees. The Tribunal referred to the email dated 21 May 2018 advising the applicant that the course fees had been refunded. When asked if he contacted the Department to seek advice about his circumstances where he was no longer enrolled, he indicated he did not make contact with the Department. The applicant maintained that he thought that RMIT would reinstate his course. The applicant said that, at that time, he had no idea what he was supposed to do. The applicant said that he came into contact and sought assistance from Mr Ruparelia, which was a decision he regretted. He said that Mr Ruparelia advised him to enrol in an English language course. However, the applicant feels he can speak English very well and did not need to do the English language course. In any event, the applicant maintained that Mr Ruparelia misadvised him but only became aware that he had been misadvised sometime later.  The applicant said that Mr Ruparelia misadvised him that he would have to wait until the following year to get enrolled but he would need to do the English language course to “not have a gap” in his enrolment history.

25. The applicant said he did the English language course in the latter part of 2018. The applicant indicated that he was not aware the English language course was not a “tertiary course” as such.

26. The Tribunal referred to an email dated 27 June 2018, where he forwarded an email to RMIT Connect. The applicant said he still had a hope of obtaining an enrolment at RMIT.

27. However, the Tribunal put to the applicant that the applicant had gotten through 2018 without furthering his engineering studies but did an English language course. The applicant said that by 2019 he was repeatedly asking Mr Ruparelia if any of his applications for business courses had been successful. However, he said Mr Ruparelia told him he was not successful for the February 2019 intake for courses, so he continued with an enrolment in an English language course. The applicant now believes that Mr Ruparelia was lying to him about the steps he took to enrol him into a course in early 2019.

28. The Tribunal asked the applicant if he was aware that he may have been required to pass a certain amount of his initial course to render him eligible to enrol into another course. However, the applicant said he did not know about this requirement at that time, but he is now aware of this requirement. He indicated that Mr Ruparelia misadvised him. The applicant said he spent his time in 2019 doing an English course.

29. The Tribunal put to the applicant that the Tribunal acknowledged that the applicant was relatively young at this period of time, but that he was still an adult and someone who appeared to be an intelligent person who by 2020 had been in Australia for the best part of two years on a student visa without doing any higher education. In response, the applicant said “yes Member.”

30. The Tribunal noted the email dated 4 February 2020 from Acknowledge Education. The Tribunal asked the applicant how long he thought this situation was going to go on for. The applicant responded that he thought he would have an enrolment in early 2019 for a Bachelor of Business Management course. The Tribunal put to the applicant that the purpose of him being in Australia on a student visa was to study a higher education course, but that by 2020 he had been in Australia for around two years without making any meaningful progress on any higher education course. The Tribunal asked the applicant whether he had, by early 2020, told the Department about his situation. The applicant responded that he had not himself approached the Department, but also that he did not know how to inform the Department. When asked if he believed that, as the visa holder, he was responsible for complying with his visa conditions, he said “yes.”

31. The Tribunal noted the bank transfer of money that he paid Mr Ruparelia, including about $1500 per month for the English language course. However, the applicant claimed that Mr Ruparelia told him he used this money to pay the course provider for the English language course.

32. The Tribunal spoke to the applicant about the NOICC provided to the applicant dated 23 January 2020. The Tribunal put to the applicant that it was after he received the NOICC that the applicant went and obtained an enrolment. In response, the applicant said “yes.” The applicant said Mr Ruparelia give him the impression that if he obtained this enrolment, the Department may be sympathetic to his circumstances.

33. When asked if he had told his parents about his circumstances, and he said he had told his parents. The applicant indicated that he had not returned to his home country because he wanted to complete his studies in Australia.

34. The Tribunal referred to the email dated 8 January 2021, showing that the applicant had made contact with Mr Ruparelia’s business asking about a bridging visa as well as an update of where his matter was at with the Tribunal. The Tribunal referred to the messages dated 28 January 2021, showing that the applicant had tried to communicate with Mr Ruparelia about these matters.

35. When asked what he meant in respect to allegations of identity fraud, the applicant said he found out that his application to the Tribunal was sent from another email address, but not his own email address. When asked how this information was materially relevant to the review, noting that all of this information about alleged identity fraud occurred after the applicant’s visa was cancelled by the Department. The Tribunal put to the applicant that it was apparent that the applicant had experienced issues with Mr Ruparelia, but the Tribunal put to the applicant that the circumstances of the alleged identity fraud appeared not to be relevant to what happened to him in 2018 and 2019, and right up until the time his student visa was cancelled. In response, the applicant said “yes Member.”

36. The Tribunal referred to Ms Jaura’s statutory declaration. However, the Tribunal put to the applicant that it could only conduct a review of the applicant’s situation and not Ms Jaura’s situation. However, the Tribunal put to the applicant that in any event, the Tribunal put to the applicant that the circumstances of the alleged identity fraud appeared not to be relevant to what happened to him in 2018 and 2019, and right up until the time his student visa was cancelled. The applicant indicated that the responsibility to rectify this situation was with Mr Ruparelia. The Tribunal put to the applicant that, in spite of these issues, he was ultimately responsible to remain enrolled and remain in compliance with his visa conditions. In response, the applicant said he did not disagree with what the Tribunal had put to him. The applicant said that due to being very young, he did not have an understanding of how these processes worked and he admitted that in hindsight he was not as proactive as he should have been. The Tribunal put to the applicant that by the time the Department contacted him in 2020, he was not 18 years old anymore and had been in Australia for the best part of two years.

37. The representative then said that if RMIT had reinstated the applicant’s enrolment, as they had offered, he would have remained enrolled. However, the Tribunal noted that the applicant had made clear that he did not want to study engineering and he did not want to do the engineering course. The representative then said that the applicant made attempts to obtain an enrolment in a business course. In summary, the representative asserted that the RMIT staff misadvised the applicant and that Mr Ruparelia had misadvised the applicant, and these were substantive reasons why the applicant failed to remain enrolled in a registered course.

1. The applicant said that he even though he was not going to be an engineer, he wanted to go back and work in the family business managing the staff rather than himself working as an engineer in the business.

2. The Tribunal has considered the emails from the applicant’s mother and father.

3. In respect of the above, the Tribunal makes the following findings.

4. The Tribunal accepts that the applicant was very young when he first came to Australia to study. The Tribunal accepts that the applicant, reasonably, may not have been familiar with the various systems and processes in respect to his studies, his enrolment, the requirements of his visa and the requirement for him to maintain compliance with his visa conditions. The Tribunal accepts that the applicant did not want to study engineering and wished to undertake another course in business. The Tribunal accepts that the applicant may have experienced some stress and anxiety due to his circumstances, including in 2018. The Tribunal accepts that the applicant received poor advice and support from his course provider as well as from Mr Ruparelia, whether or not Mr Ruparelia is or ever has been a registered migration agent.  The Tribunal accepts that these circumstances substantially contributed in the applicant failing to maintain enrolment in a registered course of study as he was required to in accordance with his visa conditions. 

5. The Tribunal finds that the applicant was responsible for abiding by his visa conditions and for being proactive about his enrolment status as well as compliance with his visa conditions. However, the Tribunal accepts that due to the applicant’s relative youth and inexperience in the time period of 2018 and 2019, the Tribunal is prepared to exercise its discretion in favour of the applicant and grant him a last chance to demonstrate that his wish is to successfully complete his business studies and return to his country of origin. Should he fail to do this, he should be given no further chances.

6. Accordingly, the Tribunal places high weight on this information in the applicant’s favour.

   The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

7. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

   The extent of compliance with visa conditions

8. The applicant indicated that there was a period of time he became unlawful. However, the applicant said that the reason he became unlawful was because Mr Ruparelia failed to apply for the bridging visa on his behalf.

9. In consideration of this issues, the Tribunal accepts that there was a period of time the applicant became unlawful but this was due to Mr Ruparelia’s action in failing to apply for the bridging visa on the applicant’s behalf. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

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

10. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. In response, the applicant indicated that he would be disappointed, and his family would be disappointed. The Tribunal accepts that there may be some disappointment caused to the applicant, and his family, if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

11. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

12. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

13. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

14. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

15. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

16. The Tribunal places some weight on this information in the applicant’s favour.

    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

17. The Tribunal asked the applicant if he feared anything in returning to India. In response he indicated that he did not fear anything in returning to India. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

18. In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated that he tried to be proactive about his course enrolments, and he felt he had a lack of knowledge about these matters. He said that it was very important for his family for him to study.

    Conclusion

19. In balancing the circumstances above, the Tribunal concludes that the applicant should be granted a last chance to complete his business studies.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will 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 was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.