TRIKHA (Migration)

[2019] AATA 6655

TRIKHA (Migration) [2019] AATA 6655 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAJAT TRIKHA

CASE NUMBER:  1710426

HOME AFFAIRS REFERENCE(S):          BCC2017/1114093

MEMBER:Peter Newton

DATE:4 December 2019

PLACE OF DECISION:  Sydney

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 04 December 2019 at 12:43pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – college changed its course package – applicant unable to enrol for further courses – college denied evidence of course completion – closure of another college – applicant required to provide further English qualifications – actively pursuing undergraduate studies – adverse media coverage – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 46, 97-105, 107-109, 424AA, 438
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 15 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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 was not enrolled in a registered course of study from 17 September 2016 to 2 May 2017.  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 19 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 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 accepted that he was not enrolled in a registered course from 17 September 2016 to 2 May 2017.  Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

1. 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’. For the following reasons, the Tribunal considers that the grounds for not cancelling the visa outweigh the grounds for cancelling the visa.

• The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. During the application process for his student visa, the applicant stated that his intended purpose of travel to and stay in Australia was to study.

2. The records contained on the file of the Department of Immigration indicate that on 31 October 2014 the applicant was granted a subclass 572 student visa.  The applicant arrived in Australia on 21 November 2014.  Since first arriving in Australia, the applicant has undertaken and completed the following courses of study:

Institution	Course	Period
Australian Technical & Management College	Certificate IV in EAL (Further Study)	15/12/2014 to 20/2/2015
Hibernia Institute Pty Ltd	Certificate IV in Business Administration	20/7/2015 to 18/12/2015
Hibernia Institute Pty Ltd	Diploma of Business	1/2/2016 to 16/9/2016

1. The applicant obtained a Confirmation of Enrolment in a Diploma of Management course starting 1 February 2016 and ending 1 July 2016 at Hibernia Institute Sydney (Hibernia Institute).  At or about the same time, the applicant also obtained the applicant had also obtained a Confirmation of Enrolment in a Bachelor of Accounting course starting 18 July 2016 and ending 21 June 2019 at Group Colleges Australia Pty Ltd trading as Universal Business School Sydney (Group Colleges).  The applicant intended to commence studying for a Bachelor of Accounting as soon as he completed studies for a Diploma of Management.   

2. The applicant commenced studying for a Diploma of Management.  Sometime after he commenced studies, Hibernia Institute changed the course package from Management to Business and extended the course.  The applicant successfully completed the Diploma of Business course on 16 September 2016. 

3. The applicant says that as a consequence of Hibernia Institute changing its course package from a Diploma of Management course ending 1 July 2016 to a Diploma of Business course ending 16 September 2016, the applicant was unable to commence studying the Bachelor of Accounting course on 18 July 2016 at Group Colleges. 

4. The applicant says that upon completing the Diploma of Business course, he requested from Hibernia Institute written confirmation had obtained: - a Certificate IV in Business Administration (which he completed on 18 December 2015); and a Diploma of Business (which he completed on 16 September 2016) for the purpose of providing this to Group Colleges to enable him to commence studying for a Bachelor of Accounting.  Group Colleges required satisfactory evidence of the applicant’s study history before the applicant could commence studying for a Bachelor of Accounting. 

5. The applicant says Hibernia Institute refused to provide him with evidence that he had successfully completed the Certificate IV in Business Administration and the Diploma of Business and insisted that he study accounting at Hibernia Institute and not undertake similar or identical studies at another education provider.  As a result of this refusal and inability to obtain evidence from Hibernia Institute of his study history, the applicant was not able to commence studying at Group Colleges.

6. Undeterred, the applicant applied to Elite Education Institute Pty Ltd (Elite Education) to study a Bachelor of Business (Business Management) course.  By letter dated 28 October 2016, Elite Education offered the applicant a place in the Bachelor of Business (Business Management) course commencing 7 November 2016. 

7. The applicant says that because he was unable to obtain from Hibernia Institute evidence of the courses he had completed at Hibernia Institute, he was unable to accept the letter of offer from Elite Education.

8. The applicant says that as he was unable to obtain evidence of his study history with Hibernia Institute, he explored other means of gaining entry into a bachelor degree.  To this end, in January 2017 the applicant undertook an International English Testing System (IELTS) exam.  In order to gain admission to undergraduate and post graduate courses, it is necessary to obtain an overall band score of 6.  Unfortunately, the applicant only achieved an overall band score of 5.

9. The applicant again applied to Elite Education to study a Bachelor of Business (Business Management) course.  By letter dated 27 February 2017, Elite Education offered the applicant a place in the Bachelor of Business (Business Management) course commencing 6 March 2017.

10. The applicant says he again requested from Hibernia Institute evidence that he had successfully completed the Certificate IV in Business Administration course and the Diploma of Business course.  By email from Hibernia Institute (Student Services) to the applicant sent 27 February 2017, Hibernia Institute requested his USI (Unique Student Identifier) number.  The applicant says he personally attended at Hibernia Institute and provided his USI number and requested written confirmation of his completed courses.  The applicant says that he was not provided with evidence of the courses he had completed and he consequently missed another intake with Elite Education.  It was submitted that higher education providers have limited intakes with most providing intakes in about March, July and November each year.

11. The applicant says he was distressed and depressed by Hibernia Institute’s refusal to provide him with evidence of the courses he had completed and his consequential inability to obtain entry into a Bachelor of Business course.  The applicant travelled to India on 26 March 2017 and sought assistance from his family who encouraged him to return and pursue his desire to obtain an undergraduate degree.  On 5 April 2017 the applicant returned to Australia.

12. On 27 April 2017 the applicant received the Notice of Intention to Consider Cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa from the Department of Immigration and Border Protection (NOICC).

13. As the applicant was unable to obtain entry into a bachelor degree course without evidence of his completed courses or an IELTS overall band score of 6, and on the advice of his migration agent, on 2 May 2017 the applicant obtained a Confirmation of Enrolment in an Advanced Diploma of Leadership and Management course starting 10 April 2018 and ending 27 March 2020 with Group Colleges Australia Pty Ltd trading as Central College (Central College).  The applicant commenced this course of study.

14. The applicant remained determined to obtain a bachelor degree and on 2 May 2017 undertook a further IELTS test. Unfortunately, he only obtained an overall band score of 5.

15. On 15 May 2017 the delegate of the Minister for Immigration and Border Protection cancelled the applicant’s Subclass 573 Higher Education Sector visa.

16. The applicant says that when he was studying for an Advanced Diploma of Leadership and Management, he suffered another setback.  In December 2018 the Central College closed down.  Consequently he was unable to continue these studies. 

17. In December 2018 the applicant sat for another English language test.  This time with Metro English College.  Unfortunately, the applicant scored an overall ban score of 4.5 and remained ineligible for a bachelor course.

18. In March 2019 the applicant sat for another English Language test with Universal Business School.  On 18 March 2019 he received his results.  He scored 7 for reading and 7.5 for writing and accordingly became eligible to commence studying for a bachelor course.

19. On 1 April 2019 the applicant obtained a Confirmation of Enrolment in a Bachelor of Business Degree course starting 13 May 2019 and ending 22 April 2022 with Group Colleges.  The applicant has commence studying this course and shortly before the hearing, sat for his first exams.

20. The initial visa was granted to the applicant for the purpose of study.  Whilst the applicant was not enrolled in a registered course of study from 17 September 2016 to 2 May 2017, the above history establishes that the applicant has actively pursued his desire to study in Australia and obtain a bachelor of business degree.  After several attempts, he has now gained entry into and commenced studying for a Bachelor of Business Degree.  The applicant submits that if he is not able to complete his studies he will be “shattered” and after he completes his current course of study, he will return to India to pursue work in his father’s business.  I am satisfied that the applicant is a genuine student and has a compelling need to remain in Australia to continue with his studies for a Bachelor of Business Degree.

• The  extent of compliance with visa conditions

1. On 31 October 2014 the applicant was granted a subclass 572 student visa.  The applicant arrived in Australia on 21 November 2014.  Since first arriving in Australia, the applicant has undertaken and completed the courses of study referred to above.

2. The applicant accepts that he was not enrolled in a registered course of study from 17 September 2016 to 2 May 2017 when he obtained a Confirmation of Enrolment in an Advanced Diploma of Leadership and Management at Group Colleges.  I have set out above when considering “The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia”, the circumstances in which the applicant failed to comply with condition 8202(2) attached to his visa.

3. Student visas (subclass 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

4. I give some weight against the applicant for breaching condition 8202(2) by not being enrolled in a registered course of study.  However, in the circumstances set out above, I am satisfied that the applicant’s primary intention has always been to study in Australia. 

• Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. The applicant is from a well-known family in Jalandhar, Punjab.  He is the only son in his family and his goal is to complete his bachelor degree and return to India to work in and expand his father’s real estate business. The applicant’s mother is in politics and was nominated as candidate for election to Municipal Corporation, Jalandhar from Ward No. 17, Jalandhar.  The applicant’s visa cancellation was the subject of adverse coverage by the opposition and distressed the applicant and his family.

2. It is submitted that because of the visa cancellation, the applicant’s family has faced an emotional setback and he and his father were shattered.

3. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be 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 from Australia. Additionally, the applicant will be subject to section 48 of the Act which means that he will have limited options to apply for further visas in Australia. He will also be subject to Public Interest Criterion 4013.

4. In these circumstances and as I am of the view that the applicant is a genuine student, I am of the view that a degree of hardship will be caused to the applicant if the Tribunal affirms the decision to cancel the applicant’s visa.  I give some weight in the applicant’s favour when considering this factor.

• Circumstances in which ground of cancellation arose  

1. I have set out under the heading “The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia”, the circumstances in which the ground of cancellation arose.

2. The applicant submits that the ground of cancellation were due to the refusal by Hibernia Institute to provide evidence of the courses he had completed with that institute.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

3. I am satisfied that the circumstances in which the grounds of cancellation arose provide reason not to cancel the visa.

• Past and present behaviour of the visa holder towards the department

1. There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the department.  The documents on the Department’s and Tribunal’s files indicate the applicant has been candid when dealing with the Department.  I give some weight in the applicant’s favour when considering this factor.

• Whether there would be consequential cancellations under s.140

1. There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

• 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 visa application without the Minister’s intervention

1. This has already been dealt when considering the degree of hardship that may be caused if the Tribunal affirms the decision to cancel the applicant’s visa.

2. The tribunal accepts that there will be some hardship to the applicant if it affirms the decision to cancel the applicant’s visa and gives some weight to this when considering this factor.

• Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. There is no information before me which indicates the cancellation would result in the breach of Australia’s international obligations.  Accordingly, this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

• If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

• Any other relevant matters.

1. I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

Conclusion

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

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

Peter Newton
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.