Varinder (Migration)

[2018] AATA 627

Varinder (Migration) [2018] AATA 627 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Varinder

CASE NUMBER:  1703369

DIBP REFERENCE(S):  BCC2016/4297059

MEMBER:Tigiilagi Eteuati

DATE:6 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 06 March 2018 at 3:44pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion – Significant time spent studying vocational courses – Significant time spent not enrolled – Lack of desire to undertake a higher education course – Potential hardship does not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 2017 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 breached the condition of his visa to remain 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 13 November 2017 to give evidence and present arguments.

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.

   Did the applicant comply with Condition 8202?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. The delegate found that the applicant had not been enrolled in a registered course since 18 January 2016. This was admitted by the applicant and accords with records held by the Department. 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

9. 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.

10. 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). The Tribunal has also considered all the material provided by the applicant and his representatives.

11. At the hearing before the Tribunal the applicant claimed that when he arrived in Australia in January 2014 he was enrolled in an English language course to be followed by a Diploma of Information Technology (IT) and then a Bachelor of IT degree. The applicant said that he completed the English language course but did not start the Diploma of IT course and notified TAFE that he did not wish to continue with his IT studies. His enrolment in the diploma and degree courses in IT was were cancelled on 16 July 2014.

12. The applicant said that he never wanted to study IT but that his parents insisted that he study IT. He said that after he cancelled his enrolment in the IT courses he enrolled at New England Institute of Technology (NE) in a Certificate III in Light Vehicle Mechanical Technology which he finished in mid-2015 and a Certificate IV in Automotive Mechanical Diagnosis which he finished in January 2016. The applicant was enrolled in a Diploma of Automotive Technology but this enrolment was cancelled on 18 January 2016 for non-commencement of studies. The applicant said that when he enrolled at NE, staff there told him that he “would not have any issues with immigration or my visa as long as I was studying.” The Tribunal notes that the applicant does not appear to have been enrolled in any other courses since 18 January 2016 although he received an offer of enrolment at Holmes College on 7 November 2017, the week before the hearing before the Tribunal.

13. The applicant said that he wanted to be a mechanic and to open an automotive repair business in India when he returned. He said that when he told his father about his desire to change courses his father was supportive as he planned to open a car leasing business and his son could help with the family business.

14. The applicant said that he did well with his automotive studies and finished both the certificate III and certificate IV courses. He said that in January 2016 he decided that he would benefit from studying a Bachelor of Business course. He said that he approached an education agent to enquire about enrolment in a bachelor of business course and was told that he was not studying the appropriate courses for the subclass 573 visa he held and that he was required to enrol in a higher education course. The applicant said that he was disappointed with NE as he felt he had received “bad advice from them” regarding his visa conditions. The applicant said that he immediately cancelled his enrolment in the Diploma of Automotive Technology. At the hearing he said that he then sought the assistance of a migration agent who approached Holmes College in Brisbane and a “polytechnic” in Sydney to seek enrolment for the applicant in a Bachelor of Business course. The applicant claimed that the migration agent told him that both education providers refused to offer the applicant enrolment because he had breached the conditions of his visa to remain enrolled in a higher education course.

15. This information was inconsistent with the letter from the applicant’s former migration agent provided in response to the Notice of Intention to Consider Cancellation (NOICC). In that letter, the migration agent who the applicant indicated had attempted to seek enrolment in a bachelor’s course for the applicant, indicated that the applicant had advised him that the applicant had made the attempts to enrol in a bachelor’s course but that he was unsuccessful due to his non-compliance with his visa conditions. When this inconsistency was put to the applicant he insisted that it was his migration agent, and not he, who had approached two education providers to seek enrolment in a bachelor’s degree course.

16. The applicant indicated that if his visa remained cancelled he and his family would suffer hardship because his family were relying on him, especially being the eldest child and only son of the family, to assist with the running and expansion of their car rental business. However, the Tribunal notes that the applicant’s father decided to open the car rental business after the applicant indicated that he wanted to complete automotive studies and not a Bachelor of Business.

17. The applicant also said that being able to complete a Bachelor of Business degree would assist him in eventually opening his own automotive repair business. He said that he could study in India but suggested that Australian qualifications were better regarded in India than Indian qualifications. This was despite the assertion in the response to the NOIC suggesting that obtaining enrolment in India would be difficult due to high competition for tertiary education places in India and the gap in the applicant’s study history. In any event, if he plans to work for the family business and start his own company it is not clear why the applicant needs a well-regarded Australian degree. He already has Australia automotive qualifications and could obtain a business degree in India if he desired.

18. In the response to the NOICC the applicant’s then representative also indicated that the applicant would suffer financial hardship as his failure to complete his education would jeopardise his future and professional career. Again, the Tribunal notes that the applicant plans to work in the family car rental business when he returns and eventually open his own automotive repair business. The applicant admitted that he would not need a Bachelor of Business degree to work in his family business or to start his own business.

19. In the response to the NOICC the applicant’s then representative also indicated that the cancellation of the applicant’s visa would lead to the applicant and his family being shamed and humiliated in their community in India.

20. Finally, in the response to the NOICC the applicant indicated that the applicant and his family had spent a large sum of money for the applicant’s education in Australia and claimed that if the applicant’s visa remained cancelled that this would cause financial, emotional and psychological hardship. The Tribunal notes that the applicant wanted to study the certificate III and IV in automotive studies and completed them. He has not paid for the Diploma course or the Bachelor’s degrees in which he enrolled so it is difficult to see how the applicant will be losing money from the decision to cancel his visa.

21. The Tribunal raised its concern with the applicant that because the applicant abandoned his IT courses leading to a Bachelor of IT degree in 2014 and failed to be enrolled in any course of study after January 2016 despite his visa not being cancelled until February 2017 that he may not have the desire to successfully undertake a higher education course in Australia.

22. The applicant said that he did have the desire to complete a bachelor’s degree so that he could work in the family business and start his own automotive repair company. The applicant repeated that once his certificate IV course was completed in January 2016 he tried to enrol in a Bachelor course but was unsuccessful. The applicant said that if he was given a chance he would successfully complete his bachelor’s degree and return to India.

23. The Tribunal has decided to affirm the delegate’s decision to cancel the applicant’s visa.

24. The Tribunal finds that because the applicant abandoned his IT courses leading to a Bachelor of IT degree in 2014 and failed to be enrolled in any course of study after January 2016 despite his visa not being cancelled until February 2017 that he does not have the desire to successfully undertake a higher education course in Australia.

25. The Tribunal does not accept that the applicant or his agents attempted to gain enrolment in a Bachelor’s degree between the time his certificate IV course was completed and the cancellation of his visa. As mentioned above, the applicant provided inconsistent evidence on who made the enrolment attempts. In addition, the applicant appears to have been able to gain enrolment in a Bachelor’s degree on 7 November 2017, the week before the hearing before the Tribunal. The Tribunal does not accept that this is a coincidence and finds that the reason that the applicant was able to gain enrolment in a Bachelor’s degree a week before the hearing is because he only applied for enrolment shortly before the hearing.

26. The Tribunal notes that even if it was accepted that the applicant or his agent approached two institutions to seek enrolment in a bachelor’s degree course, this low level of effort over the course of more than a year before the visa was cancelled would have been insufficient for the Tribunal to find that the applicant had the desire to successfully undertake a higher education course in Australia.

27. The Tribunal is willing to accept that the applicant and his family members may experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete all a higher education degree 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 was sent to study and did not do so.

28. The applicant indicated that if his visa remained cancelled he and his family would suffer hardship because his family were relying on him, especially being the eldest child and only son of the family, to assist with the running and expansion of their car rental business. However, the Tribunal notes that the applicant’s father decided to open the car rental business after the applicant indicated that he wanted to complete automotive studies and not a Bachelor of Business.

29. The applicant also said that being able to complete a Bachelor of Business degree would assist him in eventually opening his own automotive repair business. The Tribunal accepts the applicant’s claim that he could study in India despite the assertion in the response to the NOIC suggesting that obtaining enrolment in India would be difficult due to high competition for tertiary education places in India and the gap in the applicant’s study history.

30. The Tribunal does not accept that the applicant or his family would suffer financial hardship as the applicant plans to work in the family car rental business when he returns and eventually open his own automotive repair business. He has completed the automotive courses which would allow him to make a contribution to his family’s business and eventually open his own automotive business. The applicant admitted that he would not need a Bachelor of Business degree to work in his family business or to start his own business and the Tribunal accepts this. The applicant wanted to study the certificate III and IV in automotive studies and completed them. He has not paid for the Diploma course or the Bachelor’s degrees in which he enrolled so it is difficult to see how the applicant will be losing money from the decision to cancel his visa.

31. 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.

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

    DECISION

33. 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.