Sumit (Migration)

[2017] AATA 2524

Sumit (Migration) [2017] AATA 2524 (4 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sumit Sumit

CASE NUMBER:  1616494

DIBP REFERENCE(S):  BCC2016/2802814

MEMBER:Tigiilagi Eteuati

DATE:4 August 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 04 August 2017 at 5:38pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in registered course – Applicant not enrolled in registered course – Numerous enrolments in vocational courses – Lack of desire to undertake higher education course

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 8, Condition 8202, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 September 2016 made by a delegate of the Minister for Immigration 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 had breached the condition of his visa that he be enrolled in a registered course. 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 24 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

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 the applicant was not enrolled in a registered course.

9. The Minister’s delegate found that the applicant had not been enrolled in a registered course from 20 April 2016 until he re-enrolled in courses at Holmes Institute after he received the Notice of Intention to Consider Cancellation (NOICC) in September 2016. This accords with records held by the Department and is conceded by the applicant.

10. 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

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

13. Before the applicant arrived in Australia in January 2014, he was enrolled in a Diploma of Community Services Work at TAFE Queensland and a Bachelor of Human Services at Griffith University. Shortly before he arrived he cancelled those enrolments and enrolled in a Diploma of Community Services work with BNIT followed by a Bachelor of Human Services at QUT. The applicant claimed to have attended BNIT for a semester. He said that he then left BNIT in mid-2014 and his COE for his Bachelor degree was consequentially cancelled on 24 June 2014. The applicant was in breach of condition 8516 from this date as he was not enrolled in a higher education course.

14. The applicant said that he sought the assistance of a migration agent who informed him that he needed to hold a subclass 572 visa in order to abandon his Bachelor course and study only vocational courses. The applicant said that his application for a subclass 572 visa was refused on the basis that he was unable to show that he had sufficient funds to meet his financial commitments in Australia. The applicant admitted that he knew that it was a requirement of his subclass 573 visa to be enrolled in a higher education course and that he needed a subclass 572 visa to study only vocational courses.

15. Nevertheless, the applicant proceeded to enrol in a number of vocational courses with Skills institute Australia. In 2014, he enrolled in a total of 9 Diploma level courses with Skills Institute Australia in subjects including marketing, business, management and project management. Of the 9 vocational Diploma courses the applicant enrolled in he only completed one Diploma, a Diploma of Business which he completed in January 2015.

16. The applicant said that he had some family friends residing in Perth and decided to relocate there. Once in Perth, instead of enrolling in a Bachelor course, the applicant, on 23 January 2015, enrolled with Kinggdom Institute of Management in a Diploma of Management, 2 Diplomas of Marketing, a Diploma in Human Resources Management and an Advanced Diploma in Marketing. The applicant claims to have completed the Diploma of Management although the PRISMS records indicate that his enrolment was cancelled in August 2015 for non-payment of fees. The applicant provided the Tribunal of a copy of a certificate of completion of the Diploma of Management dated 28 September 2015 and for the purposes of this decision, the Tribunal is willing to accept that the applicant completed the Diploma of Management.

17. After completing his second Diploma, the applicant again decided not to enrol in a Bachelor degree but instead on 16 October 2015, he enrolled in another Diploma course, this time another Diploma of Marketing. All the other courses he was enrolled in at Kinggdom Institute of Management were cancelled by August 2015. The applicant finished the Diploma of Marketing in early 2016 and he was not enrolled in any courses from this time until after he received the NOICC in September 2016.

18. The applicant claimed that after he completed the Diploma in Marketing he thought that he was still enrolled in a Diploma in Human Resources Management to be followed by an Advanced Diploma in Marketing. He said that he was supposed to begin the Diploma in Human Resources Management in early 2016, after he completed the Diploma in Marketing but could not pay the full amount of his fees for that course so he never began the course. He provided evidence that he was making payments for the course in 2016. The applicant said that he left Perth and returned to Brisbane prior to August 2016 as he was having problems with his family friends with whom he was residing.

19. The Tribunal put to the applicant that he must have known that he was not enrolled in any courses after he finished his Marketing Diploma because he did not attend any classes and eventually left Western Australia for Queensland while the course was supposedly still being conducted. The applicant said that although he was not attending any classes he thought that he was still enrolled in the course because he was paying fees for the course in 2016. The Tribunal indicated that it seemed very odd that the applicant would be paying fees for a course that was ongoing that he was not attending.

20. The Tribunal raised with the applicant its concern that given that the applicant had not been enrolled in a Bachelor degree since 2014 and had instead decided to enrol in numerous Diploma courses of which he had completed 3, the applicant may not have the desire to undertake a higher education course in Australia.

21. The applicant said that although he had completed 3 Diplomas in different subjects, and though he was enrolled in 2 additional diplomas, he intended to eventually undertake a Bachelor degree course.

22. The Tribunal finds that the applicant does not have the desire to successfully undertake a higher education course in Australia. The applicant abandoned his Bachelor degree higher education course in 2014 and did not enrol in another Bachelor course until after he received the NOICC from the Department. The applicant admitted that in 2014 he wanted to study only vocational courses and applied for a subclass 572 visa to do so but this application was denied. He knew that he was required to be enrolled in a higher education course but instead proceeded to enrol in numerous vocational courses. Prior to receiving the NOICC, the applicant had obtained COEs in 20 courses in Australia. The applicant completed 3 Diplomas in different subjects and intended to complete at least 2 further Diplomas during the currency of his visa.

23. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. However, the applicant was not permitted to undertake only vocational courses and any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study but instead decided to complete a number of Diploma vocational courses.

24. In any event, the Tribunal finds that the applicant’s lack of desire to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Tigiilagi Eteuati
    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.