SODHI (Migration)

[2021] AATA 785

SODHI (Migration) [2021] AATA 785 (18 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARMANPREET SINGH SODHI

CASE NUMBER:  1932800

HOME AFFAIRS REFERENCE(S):          BCC2019/3284520

MEMBER:Meredith Jackson

DATE:18 February 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 18 February 2021 at 9:43am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course ceased – applicant changed to Vocational courses – initial enrolment cancelled by education provider – limited academic progress – genuine student – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 116, 140, 359
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 13 November 2019 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 (the Act).

2.    The delegate cancelled the visa on the basis that the applicant had not complied with a condition of his visa, namely condition 8202. 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 16 February 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4.    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

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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

Section 116 Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she
is satisfied that:

(b) its holder has not complied with a condition of the visa;

(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC)
if there exist prescribed circumstances in which a visa is not to be cancelled.

(3) If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the
Minister must do so if there exist prescribed circumstances in which a visa
must be cancelled.

Particulars of grounds for cancellation

6.    The delegate found the applicant had not complied with subclause (2)(b) of condition 8202 attached to his visa. The condition states (in part):8] CLD201965498258 - BCC2019 3284520 - Notice of In

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
[…]

7.    As the applicant does not claim to be a Defence, Foreign Affairs or secondary exchange student he is not covered by subclause (1); therefore, subclause (2) applies in his case.

8.    Paragraph (2)(b) requires that the holder must maintain enrolment at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. In this case, the relevant level is level 9 of the Australian Qualifications Framework (AQF).

Did the applicant comply with Condition 8202?

9.    On 18 November 2011, the applicant  was granted a Student visa to study a Master of Technology (Enterprise Systems and Business Analytics) at Federation University from 12 November 2018 to 12 November 2020. Once completed, it would have provided him with a Level 9 Masters degree qualification from the AQF. He completed approximately three months of the course. On 29 March 2019, the applicant enrolled in vocational automotive courses at AQF levels 3, 4 and 5. On 7 May 2019, he enrolled a Bachelor of Business course at level 7.

The hearing

1. The Tribunal had the benefit of hearing from the applicant about his study choices and the circumstances leading to and arising from the visa cancellation. In his opening statement, the applicant claimed that when he came to Australia, he had no intention of breaching his visa conditions. His parents have spent a lot of hardworking money on him, he claims, and he did not want to waste those funds. He is the eldest in the family and has responsibilities to the family; he does not want them to be ashamed of him. He claims that he has never had a bad record academically, he is a brilliant and good student; it was all a mistake, unintentional it was and no crime. He was stressed and upset that he chose the wrong field for his Masters.

2. The applicant is currently in Tasmania with his brother, who holds a Skilled Regional (Provisional) 489 visa. As the applicant does not have study or work rights, he is relying solely on his family to support him. He spends his time reading books and studying informally online at home. He wants to pursue a business career.

3. Prior to the hearing, the Tribunal provided the applicant with a copy of his record in the Provider Registration and International Student Management System (PRISMS), advising him that it may be referred to in the hearing.

Section 359AA

1. In the hearing, adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had information to put to him about which it would ask some questions, and to which he would be given an opportunity to respond or comment. The Tribunal said the information, sent to him by the Tribunal prior to the hearing in an extract from PRISMS, would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review to cancel the visa. The Tribunal said it had not made up its mind about the information; and that it would explain it and its relevance. The Tribunal stated that the applicant was entitled to seek additional time to comment or respond to the information and if he needed additional time, he should let the Tribunal know so a request could be considered. The applicant chose to comment soon after the information was put to him.

2. The Tribunal said the information in his PRISMS record indicates that 10 April 2019 the applicant’s enrolment in the AQF level 9 Master of Technology course was cancelled by his education provider and that he had enrolled in vocational courses which, in the AQF framework, were several levels below his intended study level. Subject to his comments or response, this may indicate that he had breached visa condition 8202, because the condition required that he maintain enrolment at a level no lower than the level for which the visa was granted.

3. The applicant commented that he had ceased studying in February 2019 after he began to struggle. He had failed two subjects, because he had a mechanical engineering background and they were information technology based, and he was not prepared for the field. In March 2019, after he stopped studying, he travelled to Adelaide and on the advice of friends, enrolled in vocational courses, the Certificate III in Light Vehicle Mechanical Technology, a Diploma of Automotive Technology and a Certificate IV in Automotive Mechanical Diagnosis. Completing the three courses would have taken him until May 2021. In May 2019, he found sufficient resources to enrol in a degree course, this time in a Bachelor of Business, to commence in March 2021 and end on 31 December 2023. He stresses that at the time, he had no idea what the AQF was, and did not understand that a Bachelor degree was not the same as a Master degree.

4. The Tribunal asked whether he had contacted the department about having ceased to study for the Masters, and he responded that he had not. Asked why he thought it would be acceptable to switch from a Masters to short-term vocational courses at Certificate III and IV level, when he had been granted the visa for a Masters degree, he said he did not know about the requirement to study at level. He had listened to friends who told him if he could not cope with the study he was doing, then he could study something else. He chose automotive courses because they were practical skills related to his Bachelor degree qualifications in mechanical engineering and it has been in his mind to open an automotive business in India.

5. The Tribunal noted that he appeared to have enrolled in 2019 in several courses at once, a Diploma of Automotive Technology and a Certificate IV in Automotive Mechanical Diagnosis, and all his courses had been cancelled, with nothing completed since he arrived. He responded that once the visa was cancelled, his enrolments were all cancelled. He had no study rights. He had tried as recently as last week to enrol in an MBA but the provider rejected him.

6. The applicant confirmed that he had understood the information put to him and the relevance to his case.

7. The applicant said that his failures in the Masters course came as a shock to him. He had always been a brilliant student in India and he wanted to do something like set up a business, so he asked his professor what to study, and he told him that business analysis and big data analytics were the way to go. When he began studying the course in Australia, he started to realise it was IT related and he had graduated in mechanical engineering, which was the wrong background. He did not seek academic support, he just stopped studying. He was shattered by the failures and felt very low. His family and friends in Adelaide tried to help and he hoped that a Certificate III, a Diploma and a Certificate IV, and next a Bachelor of Business, would set things right. But he failed to consult a migration agent, which he claims was his big mistake. He did not know he was dropping a level with a Bachelor degree; he would have taken a Masters if he had. It was unintentional. Now he will definitely do the Masters after the Bachelor degree.  At the time of the visa cancellation, he claims he was studying the Certificate III with full attendance.

8. The applicant did not dispute that he failed to comply with condition 8202 of his Student visa.

9. Having considered the evidence before it, the Tribunal is satisfied that the visa holder has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.

10. Consideration of the discretion to cancel the visa

11. 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’.

Circumstances in which the cancellation arose.

1. As described earlier, when the applicant arrived in Australia, the applicant was enrolled to study a Master of Technology (Enterprise Systems and Business Analytics) from 12 November 2018 until 12 November 2020. This course is at Level 9 of the Australian Qualifications Framework (AQF). On 10 April 2019, departmental records indicate, the applicant notified cessation of his studies in the course. The applicant has confirmed he in fact ceased studying in February 2019.

2. The applicant enrolled in a Certificate III in Light Vehicle Mechanical Technology on 23 March 2019. This is a level 3 course in the AQF. He enrolled in several other courses for study between June 2020 and December 2022, none of them at the same level as his level 9, Masters degree course.

3. As recorder earlier in these reasons, the applicant does not dispute that he failed to abide by a condition of his visa to study at or above the level for which it was granted. He argues that he took the wrong advice and did not seek advice from migration advisers who might have helped him maintain compliance with his visa conditions. He has claimed that at the time he did not know what the consequences would be if he transferred to vocational courses from a Masters degree. Neither did he understand, he claims, that there was a difference between a Bachelor degree and a Master degree. He thought they were the same.

4. The Tribunal has considered these circumstances, and the evidence provided by the applicant in written form prior to the hearing and in oral evidence. The Tribunal notes that the applicant came to Australia as the holder of a Bachelor of Technology (Mechanical Engineering). By any reasonable assessment, the applicant knew precisely what a Bachelor degree was at that time. It is a prominent, globally recognised qualification and he had been awarded the degree. It is highly likely that he also knew what a Masters degree is, because it too, is routinely and prominently recognised, and furthermore, having graduated in India in a Bachelor degree, he enrolled in a Masters degree in Australia. This was a logical step in that provided him with academic progression; it is reasonable to conclude he knew that, as well. The Tribunal is not persuaded that the applicant did not know the difference between the two degree levels. The Tribunal does accept that the applicant may not have understood the intricacies of the AQF, or the full consequences of dropping out of his course and enrolling several levels down, below even his existing Bachelor attainment, in courses that would provide him with basic, garage-floor mechanical skills, but it is hard to conclude he had no inkling and it was all a mistake. He claims he did not take academic advice, he was very upset and shocked about his performance, so he went to Adelaide to see people and took their advice that he could study “something else”. And then he failed to get migration advice.

5. The Tribunal notes that the applicant did not take steps to remediate his situation that were open to him, namely by consulting the academic and institutional advisers at his university when facing study difficulty. If he had, he may have learned more about the requirements of the student visa program and avoided the situation he now finds himself in. He did not consult the department about his visa conditions, either, which would have opened up the possibility of reordering his visa status. It bears emphasis that in the hearing, the applicant stated that when he found himself failing the course, he should have turned to a migration agent for advice, and that was “his mistake”. For the Tribunal, this tends to suggest that the applicant had more of an eye on satisfying immigration rules, than overcoming his study challenges, as a genuine student committed to progressing in his studies might have done. This tends to undermine his credibility of his claim to have been a genuine student who made an innocent error.

Does the applicant have a compelling need to remain in Australia?

1. The applicant has raised that cancellation of his visa will bring shame upon him and his family, waste their hard-earned money and deprive him of an opportunity to reward them for their investment in his education. The Tribunal has considered whether this amounts to a compelling need to remain in Australia to resume his studies. It finds the applicant’s record does not suggest it does. The Tribunal notes, and accepts, the applicant’s claim that he made a mistake and that he did not intend to breach his visa conditions. The Tribunal accepts that no applicant wants to find themself in breach of conditions. It is apparent to the Tribunal, however, having considered the actions the applicant took at the time of ceasing the Masters study, and those open to him that he did not take, that there is a reasonable likelihood of more than error in this case. The Tribunal is more persuaded, after considering all his claims, that the applicant acted wilfully, and with some calculation, when he sought to redirect his pathway to something of less cost, with a lighter study load, and with potential to provide work-ready skills, without taking academic or department counsel on his options. This undermines the applicant’s claim that he is a genuine student who deserves another chance.

2. In making this decision, the Tribunal is mindful that, as a degree educated citizen of India, the applicant will have opportunities in his home country to exercise his Bachelor degree training in mechanical engineering productively. The Tribunal hopes this may eventually offset his distress at having failed to maintain enrolment in Australia as he initially planned.

3. The Tribunal finds the applicant does not have a compelling need to remain in Australia.

Other considerations

1. The Tribunal has considered the past and present behaviour of the visa holder towards the department and concludes that his main failing was in not referring his plan to give up his Masters study through appropriate channels. The Tribunal does not have evidence before it of any other issues arising with the department and is not aware of any further issues regarding compliance with visa conditions.

2. The applicant’s representative has raised that in Sapkota (Migration) [2020] AATA173 (22 January 2020), the Member (differently constituted) stated:

   Whilst the Tribunal accepts that the applicant was required to change courses
   due to his failed studies, the applicant was obliged to meet his visa conditions
   and it was his responsibility to maintain enrolment in the appropriate level of
   course. If he could not maintain that level of enrolment, it was open to him to
   apply to the Department for a new visa.
   The Tribunal understands the applicant’s reasons for not being compliant with
   the visa, where the applicant was aware that he would be in breach of his visa
   by enrolling in a Diploma of Information Technology. The applicant had made
   numerous attempts to enrol in a bachelor’s degree after the cancellation of his
   enrolment with VIT, but those applications failed to obtain an enrolment in a
   Bachelor of Information Technology.The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa.

3. The Tribunal has considered the submission and finds it not sufficiently relevant to the specific circumstances of the current case. The applicant in this case did not at any stage seek to apply to the department for a new visa. He did prioritise enrolment, but not to a different Masters degree, where he might be able to better manage the subject matter. The Tribunal notes he attempted to enrol in an MBA a week before the review hearing but affords the consideration no weight.

4. No consequential cancellations under s.140 arise in this matter and there are no other relevant matters to be considered of which the Tribunal has been made aware.

5. The Tribunal has considered all the circumstances above and is not satisfied that they enliven the application of the waiver.

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

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.