Sharma (Migration)

[2020] AATA 4748

Sharma (Migration) [2020] AATA 4748 (31 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rabia Sharma

CASE NUMBER:  1836766

HOME AFFAIRS REFERENCE(S):          BCC2018/4069890

MEMBER:Donna Petrovich

DATE:31 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 31 July 2020 at 12:54pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –did not comply with condition 8202 – applicant ceased to be enrolled in a higher education level – applicant has maintained her enrolment in a Vocational course – satisfactory academic progress – genuine desire to complete studies– decision under review set aside

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 December 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant does not hold enrolment in a higher education level course as required by her Higher Education Sector (subclass 573) visa under section 116 (1)(fa)(i)  the applicant has maintained enrolment in low level course which indicated to the delegate that she was using the student visa program to maintain residency in Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Migration agent. 

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. 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 (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?

7. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

9. The applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 1 August 2014. The applicant provided evidence that she was enrolled in Certificate iv Information Technology Networking, at Holmesglen Institute, Diploma of Information Technology Networking at Holmesglen Institute. The applicant has completed a Diploma in Hospitality as was evidenced by her Statement of Attainment from Acumen college and she has expressed a desire to continue her studies and complete a Graduate Diploma in Tourism and Hospitality which would be completed in 2022. The     applicant told the Tribunal that she completed the Certificate course and had attained some High Distinctions, but had made a mistake in enrolling  in an IT course, as she found it too difficult and had never studied in this field before, she told the Tribunal that she found that it was an entirely different language. She then enrolled in Commercial Cookery at South Pacific College and studied there until they permanently closed.  The applicant told the Tribunal that she had immediately enrolled in Acumen College and as she had been unable to obtain her academic transcript from South Pacific College at that time so she told the Tribunal she had  restarted the Certificate iv in Commercial Cookery as without the academic transcript she could not receive any exemptions for previous study. The applicant had also lost $4000 in student fees due to South Pacific College’s closure, which she was unable to recover. The applicant provided the Tribunal with COE for Studies undertaken and a Statement of Attainment from Acumen college for a Diploma in Hospitality Management and Academic Transcript detailing her academic achievement.

10. Whilst the applicant has not studied a higher level course as prescribed by her visa, the applicant was enrolled and had maintained her enrolment.  She continued to study in spite of some difficulties, with the permanent closure of the College at which she was studying, and being unable to obtain academic proof of completion, the applicant gave evidence that she maintained an enrolment and re-sat those subjects she had already attained in an endeavour to keep studying and maintain her visa.      

11. On the evidence before the Tribunal, the applicant was enrolled in a registered course. Accordingly, the applicant has complied with condition 8202(2).

12. As the applicant has not failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with all conditions 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 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 or remain in Australia.

14. The applicant told the Tribunal that she had come to Australia shortly after finishing school in Punjab in India to seek Higher Educational qualifications than she felt were available to her in her home country. She initially undertook studies in IT as she was advised that this was a good career path, and a lot of Indian Student were pursuing IT as a career. She told the Tribunal that she had made a mistake in pursuing a career in IT and she was not suited to this as a career path.  The applicant changed courses to South Pacific College, to study hospitality as she felt she would gain good practical experience in Australia doing this course, and explained to the Tribunal that her dream was to open a restaurant in Punjab upon her return to India at the completion of her course, and her father was going to support her in this venture.

15. The applicant has completed a Diploma in Hospitality as was evidenced by her Statement of Attainment from Acumen college and she has expressed a desire to continue her studies and complete a Graduate Diploma in Tourism and Hospitality which would be completed in 2022.   

16. The applicant told the Tribunal that she has a real love of cooking and that her dream was to open a Punjabi restaurant with her father. The applicant explained that she would like to establish a small 20 seat restaurant and had gained significant experience in Australia whilst studying. She told the Tribunal that she had not had the opportunity to develop a business plan with her father, and she told the Tribunal that she thought that it would cost around $40,000 AU to establish the planned restaurant.

17. The Tribunal in considering these submissions and evidence as a whole and takes the view that the applicant has gained more than enough skills to fulfil her dream of returning to India and opening a restaurant, regardless of this the Tribunal takes the view that the applicant has experienced significant challenges and has maintained her enrolment, therefore, she has a compelling need to travel and remain in Australia and complete her Graduate Diploma in Tourism and Hospitality and then return to India which will give the applicant access to other opportunities in her home country. Therefore, the Tribunal places some weight in favour of exercising discretion not to cancel.        

    Extent of compliance with Visa Conditions

18. The applicant did maintain an enrolment and continue to study in Certificate iii Commercial Cookery, and Certificate iv Commercial Cookery, but was unable to maintain an enrolment in a Higher Education course for which her Visa was granted.  The applicant provided evidence that she maintained enrolment in a Vocational course, and she was engaged in study and maintained an enrolment which was not shown initially to the Department because of a delay in provision of academic progress and enrolment by South Pacific Institute, which closed permanently and did not provide those records.  It does not appear that this information was available to the Department at the time of decision.

19. Whilst she has not maintained study at a higher level, the applicant has continued to study, changing her course after finding the course she chose initially unsuitable to her, and achieving some academic success at this level. The applicant was 20 years old when she commenced study in Australia and in consideration of this, the Tribunal accepts that it is not unusual for a young person to take a change in direction and make a change to their course of study.  Whilst the applicant was granted a visa on the basis that she study a higher level, unable to do this she has endeavoured to make the best of her opportunity by continuing to study and achieve qualifications in a course that she plans to utilise on her return to India. On this basis the Tribunal gives some small weight in the favour of the applicant.

    Degree of Hardship           

20. The applicant told the Tribunal of her desire to complete a Graduate Diploma in Tourism and Hospitality which would be completed in 2022. The applicant explained that would enable her to work in large hotels and gain additional experience in and better jobs in India. The applicant detailed her plans to open a Punjabi Restaurant with her father in Punjab on her return home.  The applicant told the Tribunal that she had a large extended family in India and her father owned a retail Tyre business, but also loved to cook and would facilitate the opening of a family Restaurant and that her brother ho is also studying Automotive in Australia would be returning to assist her father with the tyre business. The applicant told the Tribunal that an Australian Education is highly valued, and when asked about studying at home the applicant explained that Australian courses were much more practical than in India.

21. In considering the applicants submission the Tribunal accepts that the applicant has faced some difficulties as a young person. Being in a new environment and making a poor enrolment choice initially and then facing challenges when South Pacific College permanently ceased to operate, have all been difficult for the applicant.  In relation to the applicant facing hardship if the delegates decision is upheld, the Tribunal accepts that there may be some degree of hardship for the applicant and her family and gives some weight in favour of the applicant in this regard.            

    Circumstances in which the grounds for cancellation arose

22. The applicant told the Tribunal that she had commenced and completed a Certificate iv of Information Technology at Holmesglen Institute and passed with some High Distinctions. She explained to the Tribunal that she had not studied IT previously and struggled with the Diploma of Information Technology and decided to change courses. The applicant was 20 years old when she enrolled initially and believes she made a poor choice, as she was not familiar with IT generally and felt it was a different language. She believed at the time that there were good career opportunities and it would be ok as there were many Indian students who were undertaking this course.  When she decided to change courses she enrolled in Certificate iv at South Pacific College and undertook a Certificate iv in Commercial Cookery. South Pacific College closed permanently and left the applicant without a college to attend, they retained $4000 of course fees paid and she was unable to access her course results or academic transcript to enable her to seek exemptions in her new enrolment.

23. The applicant then sought and successfully enrolled in Acumen Institute where she re-sat her Certificate iv of Commercial Cookery and has since completed a Diploma of Hospitality Management and has provided the Tribunal with a record of results and a copy of her Diploma of Hospitality Management dated 16 January 2019.

24. Whilst she remained enrolled in a course of study, this study was not at the level for which her visa was originally granted. The applicant provided a copy of the Departments Decision record which included information containing the applicant’s PRISMS record which indicate that the Bachelor of Information Technology was cancelled on 1 February 2016, and the Decision record states that the applicant has “Breached condition 8516 of the Visa” by not enrolling in a registered course at the same lever or higher than the Registered course in which the Visa was granted. Whilst this is true the applicant, as a young person, chose to transfer to another course in Hospitality to South Pacific Institute which closed permanently, leaving the applicant out of pocket, without an enrolment or academic transcript and unable to access any credits for the subjects that she had already achieved in Certificate iii and iv in Commercial Cookery. This left the applicant at a disadvantage, which was not of her creation and in circumstances beyond her control.  The Tribunal accepts that the applicant was not enrolled in a higher level course at the time of cancellation, but heard in the applicant’s submission that she hopes to achieve a Graduate Diploma in Tourism and Hospitality Management if given the opportunity. Under these circumstances the Tribunal places some weight in favour of exercising discretion not to cancel.      

    Past and present behaviour toward the Department

25. The applicant was cooperative with the Department and in her engagement with the Tribunal was courteous and polite and provided relevant information at the Hearing.  The Tribunal in considering this gives some minor weight to the applicant in her favour.

    Whether there would be consequential cancellations under s.140

26. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would or, may be cancelled under s.140 of the Migration Act 1958. According to the Department records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

27. Accordingly, the Tribunal places no weight on this consideration.

    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 vis application with the Minister’s intervention               

28. The circumstances of this case are such that they would not engage Australia’s International obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    If it is a permanent visa whether the applicant has strong family ties in Australia

29. This is not relevant to this applicant in this circumstance. Therefore, the Tribunal gives neutral weight in this regard.

    Any other relevant matters

30. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

31. Therefore, considering circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Donna Petrovich
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.