Sooch (Migration)

Sooch (Migration) [2020] AATA 2779 (1 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amandeep Singh Sooch
CASE NUMBER:  1933988
HOME AFFAIRS REFERENCE(S):          BCC2019/3241139
MEMBER:Vanessa Plain
DATE:1 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 June 2020 at 3:23pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – reliance on agent – consideration of discretion – desire to study – period of non-compliance – visa breach rectified – responsibility of visa holder – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 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).
The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australia 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 was granted.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 18 May 2020 to give evidence and present arguments.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(b) 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?
Condition 8202 provides as follows:
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
[...]
(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.
Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will 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 was granted.
The applicant’s visa was granted on 25 October 2018 for the purpose of studying an Advanced Diploma of Leadership and Management and then a Bachelor of Business at Acknowledge Education, which is an AQF level 7 course.
Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 17 April 2019, the applicant’s enrolment in the Bachelor course was cancelled by the education provider.
PRISMS indicated that the highest CoE the applicant held thereafter was for a Diploma of Hospitality Management at Kings Institute of Management and Technology. This enrolment is at AQF Level 5. As the applicant was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to them.
On 9 October 2019, a Notice of Intention to Consider Cancellation of Visa (NOICC) was sent to the applicant.
By written response dated 21 October 2019, the applicant responded to the NOICC and stated that he may have been in breach of his visa conditions, but he was not aware of it as he always followed the advice of his education agents.
Further in his written response to the NOICC, the applicant provided reasons why his visa should not be cancelled, as summarized in the Delegate’s Decision Record, as follows:
·He may have been in breach of his visa conditions but he was not aware of it as he always followed the advice of his education agents.
·He was not able to perform well in his English course and was asked secure admission in another institute at lower level.
·He contacted different colleges and finally Future Academy suggested him to do Diploma of Leadership Management and Advance Diploma of Leadership Management.
·He stated that he relied on their advice and assumed that if there was anything wrong the education provider would have told him. He stated the institute told him to enrol in their course as such he enrolled at Future Academy.
·While he was studying at ‘Future Academy’, he requested them for a future degree enrolment. Amandeep Singh SOOCH stated that he was told that the education provider could arrange that for him.
·Once he completed his Diploma he enquired about his degree enrolment however he was told that he will have to move to Brisbane as they could arrange it from there.
·He stated that even though it was very hard for him to move to Brisbane, he had to move as he wanted to save his visa.
·When he reached Brisbane, he was told to wait for couple of months. He stated that after few months when he approached again, he was told to contact the Perth campus as they were not able to get a higher qualification enrolment for him.
·He was scared as lot of time had passed by while him not being enrolled in a degree program.
·He contacted Perth campus again, but they denied helping him as he was not a Brisbane campus student. He was stuck in between the two campuses.
·He then contacted Aussie group and got enrolment in Bachelors program with Acknowledge Education in Melbourne. He stated that was the only Bachelors enrolment available at that time.
·On 29 January 2019, he went back to India to see his family. There he met one of his family friend who manages a resort in Goa, India. He stated that he was offered a job at his resort upon condition that he completes a Cookery and Hospitality qualification along with his leadership and management course.
·Upon return, he discussed his job offer with the consultant. He was told that since he has the degree enrolment, he could do whatever course he wanted to do.
·He requested the consultant not to cancel the enrolment in bachelors instead get it extended as he wanted to first complete his degree after his course in Cookery and Hospitality Management.
·He was not aware that his enrolment in higher education course was cancelled until he received the notice from the department. He stated that he had paid $4350 for the enrolment through the agent and assumed that his enrolment will be extended.
·He took utmost care that a reasonable person could have taken to continue his education in Australia and comply with conditions applicable on his visa.
·He relied on professionals and followed their advice and directions. He requested to consider his position and intention to comply with his visa conditions. He stated that he takes responsibility of his actions however all his actions were guided by the institution or the agent.
·He requested to consider the future benefits and his intention to return home as he has been able to secure an offer for a full time job. He stated it is crucial for him to complete his education for his future job. He also stated that he has enough financial resources available for the duration of his study and stay in Australia.
·He requested the case officer not to cancel his visa
At the hearing on 18 May 2020, the applicant admitted they breached their visa condition and gave evidence consistent with the matters set out in their response to the NOICC as detailed above.
The Tribunal enquired as to the steps the applicant took after he received the NOICC. The applicant said he consulted with an agent, Aussizz Migration and Consultants. The agent told him his Bachelor CoE could be extended and if he’s only changing to a lower course no Bachelor conditions will be breached. He said further that when he received the NOICC, the emailed his agent immediately, he also called and attended upon the office in person. He contends that he was informed by the agent that, “We’ll sort it out and get back to you.” He waited until 4:00pm, but did not receive a telephone call. He rang the agent the next day, he again left a message, but received no call back. It was at this point that he decided to ‘deal with matters on his own.’ He said further there is no one dependent upon his visa in Australia except him.
The applicant stated further that the reason he didn’t contact the Department to change his visa when he relegalized about the breach, was because he was puzzled and thought the agent would deal with it for him. He thought that his agent would extend his CoE, so that he could complete his cookery courses and then do business studies.
The applicant stated further that he agrees that he breached the visa condition, but he also stated that he doesn’t agree he breached the visa condition because he followed the agent’s advice.
The applicant stated that he finally obtained a Bachelor of Accounting CoE which means he’s no longer breaching his visa. That course commences on 6 July 2020 and concludes on 30 June 2023. He stated further that this course will help him with the job offer from Lotus Inn Anjuna Goa. The job offer is contingent upon completing the Bachelor of Accounting studies.
He stated further that his cookery studies should be finished in October 2020 approximately and then he wishes to do his Diploma in Hospitality and then he wishes to do his Bachelor of Accounting. The Tribunal informed the applicant that this statement is at odds with his intention to study Accounting, as the Hospitality course and the Accounting course would be occurring ‘at the same time.’ The applicant said that will ask the colleges whether he can do the courses at the same time and that he thinks he can manage it. He said further that the degree is important because of the two more years of study he can get out of it.
The applicant also provided a written statement of the Tribunal dated 9 May 2020 which expressed similar sentiments to the matters set out in the applicant’s viva voce evidence. The applicant also provided a letter from his prospective employer, current CoE for the Bachelor of Accounting (generated on 8 May 2020), fee receipts, offer letters, communications with Aussizz Migration and Education Consultants and evidence of successfully completed studies. The Tribunal has taken into account the substance of the documents described above.
Based on the above, the Tribunal finds that the applicant 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.
Consideration of the discretion to cancel the visa
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’.
Purpose of applicant’s travel to and stay in Australia
The applicant’s current Student visa was granted on 25 October 2018 for the purpose of studying an Advanced Diploma of Leadership and Management and a Bachelor of Business degree, which once complete, would provide a qualification at AQF Level 7. The applicant’s CoE in this course was cancelled on 17 April 2019.
PRISMS indicated that he then commenced study in a Diploma of Hospitality Management, which would provide a qualification at AQF Level 5. This is two levels below the AQF level for which the visa was granted.
The Tribunal acknowledges the applicant’s academic statement of results insofar as he has successfully completed some subjects in the Certificate IV in Commercial Cookery.
The Tribunal further acknowledges that the applicant has obtained a CoE produced on 8 May 2020which establishes that he is enrolled to undertake a Bachelor of Accounting commencing on 6 July 2020 and concluding on 30 June 2023.
Based upon the above, the Tribunal is satisfied that the applicant’s original purpose for entry and stay in Australia was for the purpose of study and by procuring an enrolment in a Bachelor of Accounting degree, he has rectified the breach of his visa condition.
However, the Tribunal is troubled by the extensive period of non compliance with the relevant visa condition and the applicant’s evidence that he will ask the education provider for permission to do the accounting course at the same time as the Diploma in Hospitality Management he wants to do. That suggested course of action strikes the Tribunal as being wholly improbable. Based upon the applicant’s evidence, the Tribunal finds that the applicant has procured the CoE for the predominant purpose of rectifying the breach of the visa condition, rather than out of any genuine desire to study accounting.
Further, the Tribunal notes that the applicant’s visa naturally expires on 14 April 2021 and on that basis, the applicant would not be able to undertake and complete the Bachelor of Accounting degree during the currency of his current visa.
The Tribunal considers that the applicant’s non compliance period with the purpose for which the visa was granted, is extensive. However, it acknowledges that the applicant has rectified the breach and on that basis, the Tribunal affords the above matters some minor weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant 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, resulting in non-compliance with subclause (2)(b) of condition 8202.
Given the length of time that has passed since non compliance on 17 April 2019 when the applicant’s enrolment was cancelled, to 8 May 2020 when the applicant obtained an enrolment in Bachelor Degree, the Tribunal considers his non-compliance with condition 8202(2)(b) to be significant.
The Tribunal acknowledges that the applicant did not intentionally breach the condition and accepts his claims that he did not know he was in breach by failing to maintain enrolment in an AQF level 7 course, because he relied on the advice of several education and migration agents. However, the Tribunal considers it is the responsibility of visa holders to be aware of the conditions that attach to their visa.
There is no evidence before the Tribunal to indicate that the applicant has not complied with further conditions attached to the visa.
However, the Tribunal considers the requirement to maintain enrolment at the correct AQF level to be an important condition for the grant of the student visa, it considers the period of non compliance to be substantial and acknowledges the applicant has rectified the breach.
The Tribunal therefore gives this consideration some minor weight in favor of cancelling the visa.
The degree of hardship that may be caused to the visa holder and any family members
The applicant stated in writing that his intention is to return home as he has been able to secure a full time job offer with Lotus Inn, Arjuna, Goa. He stated further that it is crucial for him to complete his education for his future job. He provided a copy of the job offer letter dated 3 March 2019 to the Department as evidence for his claims.
In relation to the job offer from Hotel Lotus Inn, the Delegate’s decision record notes the following concerns held by the Delegate:
‘I note that open source information on the internet indicate that this establishment is
‘permanently closed’. Further, open source searches also indicate that the website
(as provided in the offer letter document) is not a registered domain and is not reachable. As such, I do not give any credibility to Amandeep Singh.’
To address the Delegate’s concerns, the applicant produced another letter from Lotus Inn, Arjuna Goa at the hearing. The document contends, among others, that the website was closed due to the business remodelling but a new website will be ‘on soon.’ The letter further states that ‘we would like to assure you and the Department of Home Affairs that out job offer presented to you is still valid and will be honoured and it is available…upon fulfilling come new applicable conditions.’ The new applicable conditions are the completion of a Bachelor of Accounting course.
The Tribunal is unable to place any significant weight upon the job offer on account of the matters in paragraphs 39 and 40 above and is troubled by the alleged authenticity of the offer.
The Tribunal acknowledges that failure to complete a Bachelor qualification and/or a Diploma qualification in Australia may be a setback for the applicant. However, the Tribunal notes that there is no evidence before it to suggest that the applicant could not complete Bachelor studies at an education provider in his home country if he is required to depart the country.
The Tribunal further acknowledges that the applicant would suffer from some emotional and financial hardship as a result of being unable to complete his intended studies. However, the Tribunal notes that there is no evidence of any family members in Australia who would be adversely affected by the cancellation of the applicant’s visa.
Further, the applicant’s visa expires naturally on 14 April 2021 and there was no evidence provided by the applicant in his extensive written statement to the Tribunal to indicate an intention to apply for an extension, or a new student visa to enable him to complete his proposed further study. The natural expiry of the visa indicates that he would certainly not have been able to complete a Bachelor degree in the time allocated to the visa the subject of this application.
The Tribunal gives these considerations some minor weight against cancelling the visa.
The circumstances in which the ground for cancellation arose
The ground for cancellation arose because the applicant did not maintain 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, resulting in non-compliance with subclause (2)(b) of condition 8202 attached to his visa.
In the applicant’s NOICC response, written statement and viva voce evidence at hearing as set out above, the applicant provided a list of details reasons regarding the circumstances in which the grounds for cancellation arose. The effect of those reasons is that the applicant did not realise that he was in breach of his visa condition, because he relied upon the advice of education and migration agents.

The Tribunal accepts that the applicant took steps to correct his non-compliance with condition 8202(2)(b) by applying for and obtaining an enrolment in a Bachler of Accounting degree, however, for the reasons set out above, the Tribunal finds that the applicant has enrolled in that course for the predominant purpose of rectifying his visa breach, rather than out of any genuine desire to study that course. It is wholly improbable to contend that he can undertake his accounting studies at the same time as doing another full time course in a Diploma of Hospitality Management.
The Tribunal considers that it is the responsibility of all visa holders to be aware of the conditions attached to their visas, and the actions required by them in order to maintain compliance with visa conditions. It is the responsibility of a student visa holder to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternate enrolment at the appropriate AQF level or not commencing further studies) and to clarify any consequences that may result from such a change, as the conditions of the visa are clearly set out in the visa grant notice or available through the Department’s Visa Entitlement Verification Online service. At no time did the applicant contact the Department for this purpose.
Based on the above, the Tribunal finds that the reasons for the breach of the visa condition were not due to matters that were reasonably outside of the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa.
The visa holder’s past and present behaviour towards the Department
The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.
The Tribunal gives this consideration a little weight against cancelling the visa.
Whether there are any persons in Australia whose visas would, or may, be cancelled under s140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.
Legal consequences of a decision to cancel the visa
If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future.
However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were reasonably within the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration little weight against cancelling the visa.
Australia’s international obligations
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.
Any other relevant matters
The Tribunal has no further evidence before it of any other relevant matters.
Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reasons for the breach of the visa condition were not matters that were outside of the control of the applicant.
It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Vanessa Plain
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.

[2020] AATA 2779

1 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Reliance

Remedies

Jurisdiction