Sharma (Migration)

[2020] AATA 3378

Sharma (Migration) [2020] AATA 3378 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswinder Sharma

CASE NUMBER:  1823617

HOME AFFAIRS REFERENCE(S):          BCC2018/1297265

MEMBER:Donna Petrovich

DATE:30 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 30 June 2020 at 12:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course ceased – limited academic progress – applicant changed to Vocational course – education provider closed – college failed to provide alternative enrolments – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
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 7 August 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 condition 8202 was breached as the applicant has not maintained his enrolment in a registered course, nor studied for a cumulative period of eight months during his stay in Australia. The delegate cancelled the visa on the basis that the applicant may not be a genuine student as he has not completed any study since 2016 and not maintained enrolment or studied for a period of eight months, between 20 September 2017 and  20 July 2018. 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 representative Mr Harpal Sing Bajwa. 

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

5. 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

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 that the applicant was not enrolled in a registered course.

9. The applicant is a 22 year old male from Punjab in India, who applied for a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on the 30 May 2016. He was granted the visa on 26 July 2016 and arrived in Australia 31 July 2016. The applicant Commenced study on the Sunshine Coast, Queensland, but found the Bachelor of Business course too difficult and he did not pass any of the subjects that he undertook.  He then enrolled in South Pacific College in Melbourne to study Cert iii and Cert iv in Commercial Cookery. The applicant told the Tribunal that he commenced at the College but then the College ceased operation while he was in India for four and a half months with health related issues.

10. The applicant explained that he tried to contact South Pacific College, and told the Tribunal that it was the College’s responsibility to find another college for him to enrol and to pay the money that he had paid in fees to the new Institution, under the prescribed insurance scheme.  The College delayed in finding him a college for some time which is why the applicant says he became un-enrolled.  The applicant told the Tribunal that he contacted the College on several occasions, and they did not respond at all initially and then told him that they could not find an alternative. The applicant told the Tribunal that he was unaware that this would cause him a problem with his visa.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    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 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

13. The Tribunal in considering the applicant’s circumstances has some sympathy in respect of the applicant’s situation but does not consider that he has a compelling need to travel or remain in Australia.  He has been working for some time as a pizza chef and has expressed a desire to continue to work in hospitality when he returns to India. He told the Tribunal that his work experience has been crucial, and he has had job offers already from within India.  Whilst the applicant has a desire to finish his studies, he has not been able to pursue study which is commensurate with the visa type that he was provided. In weighing up these factors the Tribunal does not consider that the applicant has compelling need to remain in Australia and therefore places no weight in the applicant’s favour in this regard.

    The extent of the compliance with visa conditions

14. The applicant was not enrolled in a registered course from 20 September 2017 until 20 July 2018. He arrived in Australia on 31 July 2016.  The applicant told the Tribunal that he became unenrolled after the college that he was enrolled in ceased to operate and that they did not find him an alternative for some time, as they should have; the applicant remained unenrolled  for a period of  9 months. This is considered by the Tribunal to be a significant breach of visa conditions; notwithstanding the education provider’s implied obligation to assist the applicant, the Tribunal is unwilling to absolve the applicant of his responsibility to maintain his enrolment and his obligation to notify the Department of his difficulties, which he failed to do. The Tribunal is unwilling to concede that these circumstances were beyond the applicant’s control, and therefore, gives little weight in favour of the applicant.   

15. The Tribunal in considering the applicants’ compliance is cognisant that the applicant has been in Australia since July 2016 and has not completed any course of study since his arrival. He has relocated from Queensland to take up employment in Melbourne in hospitality and changed courses to suit his situation at the time. The Tribunal accepts that the applicant may have faced difficulties as a result of the South Pacific Institute’s closure, and has some sympathy in this regard, but it does not accept, however, that the applicant has complied with the conditions of his visa.

16. The applicant faced difficulties in the study of a Bachelor of Business, and told the Tribunal that this course was too difficult for him and he failed all of the subjects undertaken. He was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) to undertake higher level studies.  The applicant has now pursued Commercial Cookery, a course not commensurate with the visa he was granted.

17. The Tribunal in considering all these factors finds that the applicant has not complied with condition 8202(2), and therefore gives little weight in the applicant’s favour in this regard.

    Degree of hardship which may be caused

18. The applicant provided evidence that he would like to complete his Commercial Cooking course so that he could return to India with sufficient skills to obtain suitable employment. The Tribunal also heard that the applicant had already been offered positions in his home country, and that he wished to return home to his family as his parents were getting older, and that his mother had been un-well.

19. The Tribunal notes that in the event the applicant’s visa is cancelled under s.48 of the Act he may have limited options available to him if applying for further visa in Australia.  In addition, he will be subject to Public Interest criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

20. The Tribunal did not receive evidence from the applicant of specific hardship that he or his family would experience, except that he would like to complete his study in Commercial Cookery before returning home. The Tribunal accepts that the applicant may suffer some hardship in this regard and places some weight in the applicant’s favour in this regard.

    Past and present behaviour of the applicant  

21. The applicant has been co-operative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

    Circumstances in which the ground for cancellation arose

22. The applicant told the Tribunal that he initially came to Australia to study a Bachelor of Business in Queensland and told the Tribunal that he found this too difficult.  He sat his exams but did not pass any of the units undertaken which included economics, accounting and e-commerce.  He then transferred to South Pacific College in Melbourne as he had work in hospitality and became interested in studying hospitality at this point.

23. This college then ceased operations and he told the Tribunal that he became unenrolled as a result of this closure and their delay in finding an alternative place of study, and that this was the reason for his un-enrolment.  He was then enrolled in Everist College to continue his studies in Commercial Cookery at the time of the cancellation of his visa.  Whilst the applicant told the Tribunal that the College had delayed in his re-enrolment, the applicant did not notify the department of this situation and did not provide any evidence of correspondence between him and Pacific College in relation to finding an alternative course and a suitable enrolment, and told the Tribunal that the College had been non-responsive to his phone calls in relation to re-enrolment.  The Tribunal in considering the situation and the evidence presented at the hearing accepts that this situation must have been difficult for the applicant, however the applicant did not notify the Department of this situation and has chosen to rely on a defunct organisation for his future enrolment prospects and the satisfaction of his Visa condition, which is to maintain enrolment in a Commercial Cookery Course.   The Tribunal in the case places little weight in favour of the applicant.   

    Whether there would be consequential cancelation under s.140

24. There are no persons who are affected as a result of cancellation.  The applicant is a single man with no dependants therefore this is not relevant.

    Whether there are mandatory legal consequences

25. The applicant understood that he would need to return to India if his visa was cancelled. I acknowledge that he would need to apply for a Bridging Visa E to remain lawfully in Australia so that he could finalise any outstanding matters and it was discussed with the applicant that he would be subjected to Section 48 of the Act which would limit his options for returning to Australia or applying for other visas. 

    Whether any international obligations, including non-refoulment and best interests of the child would be breached as a result of the cancellation

26. On the evidence before me, including the applicant’s statement at hearing, there is nothing to conclude that Australia’s protection obligations would be engaged, and I give this no weight in the applicant’s favour.

    If it is a permanent visa

27. In this case it is not a permanent visa and this matter is not under consideration, therefore the Tribunal places neutral weight in this regard.

    Any other relevant matters

28. The applicant’s agent raised issues around education facilities participating in irregular activities in relation to enrolment in the case where one agency would pay the future college to take on a student that was unable to study with them as a result of them shutting down.

29. The Tribunal takes the view that this matter is not under consideration and places no weight on this unsubstantiated evidence.

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

    DECISION

31. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Donna Petrovich
    Member

    
    

    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.