Vishal (Migration)

[2019] AATA 1257

Vishal (Migration) [2019] AATA 1257 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sharma Vishal

CASE NUMBER:  1702527

HOME AFFAIRS REFERENCE(S):           BCC2016/3648984

MEMBER:Mr S Norman

DATE:8 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 April 2019 at 2:05pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-enrolment – poor academic progress – claimed depression – 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

1. This is an application for review of a decision dated 8 February 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2)(a) – enrolment. 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 8 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.  

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Meaningful opportunity to give evidence and submissions

5. In the Tribunal’s introduction to the hearing, the applicant had said he could not understand the interpreter. It proved difficult to understand why this was the case but given the applicant had requested a Hindi interpreter (Hindi being his first language), and given the applicant appeared to be able to provide a meaningful response to material issues put to him (principally in English, and throughout the hearing), the Tribunal is satisfied he was provided with a meaningful opportunity to put evidence and submissions in support of his case.

   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 that he was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 13 May 2014. By Notice of Intention to Consider Cancellation (NOICC) of the visa dated 24 January 2017, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated they had not been enrolled in a registered course of study since 10 March 2016. Further, that it therefore appeared the applicant had breached condition 8202(2)(a); and that his visa may be cancelled pursuant to s.116(1)(b) of the Act. The applicant did not respond to the NOICC.

9. When the above was put to the applicant at hearing, he responded by referring to those matters which are discussed below. However, based on the evidence before the Tribunal, I am satisfied 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

10. 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’.

11. Regarding the purpose for which the applicant travelled to and stayed in Australia, in their decision, the delegate noted the applicant had initially said he intended to study:

    ·Diploma of Information Technology (Networking) – TAFE QI  

    ·Bachelor of Information Technology – QLD University of Technology.

12. The applicant had arrived in Australia on 16 June 2014, however as noted above PRISMS indicated he had not been enrolled in a registered course of study since 10 March 2016. The delegate also noted that at the time of their decision, the applicant was then without a valid COE. The delegate also noted the applicant had course enrolments which had been cancelled due to unsatisfactory attendance; and that he had only completed one six month course (Diploma of Business) since his visa was granted in May 2014.

13. When discussed at hearing, the applicant conceded that apart from one six month course, he had not successfully completed any studies since arriving in Australia on 16 June 2014 (he did say he started but failed to complete a cookery course after someone said they could ‘sponsor’ him). However, he now wants to complete his studies in Australia. At hearing the applicant also said he had financial problems soon after arriving in Australia, and one College refused to award him with a Certificate IV due to him not having paid his education fees. The applicant also said that after arriving in Australia, his English language competence was not sufficient to proceed with his higher education, and that subsequently his parents were not financially able to support him. Though no corroborating evidence was provided, he said his parents’ financial position had now improved. Be that as it may, the Tribunal understands it need not make an applicant’s case for him, and in the present case, the applicant did not suggest that he had attempted to pursue any studies in the last few years. Based on this evidence, the Tribunal is not satisfied the applicant’s present purpose for remaining in Australia, is to study.

14. Regarding the extent of compliance with visa conditions, as noted above the applicant had not been enrolled in a registered course of study since 10 March 2016; though he had enrolled in a Vocational Education Sector level course. The Tribunal believes this breach and the ongoing failure to successfully complete studies in Australia (apart from one six month course), to have been significant.

15. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, at hearing he suggested he and his family wanted him to complete tertiary education in Australia. However, and as stated at hearing, he had completed only one vocational level course in the almost five years since he had arrived (and the applicant conceded this was correct).

16. When discussed, the applicant also said he wished to study in an Australian university and that his job prospects in the Punjab, India would be improved if he completed his education in Australia. At hearing, the Tribunal noted that country information it had considered indicated that India has one of the fastest growing large economies in the world.[1] Also, that regarding education the country information stated:  

    India’s higher education system stands third in size in the world after the US and China with nearly 26 million students in over 45,000 institutions in the country. In the last decade the country has witnessed a particularly high growth rate in student enrolment at a CAGR of 10.8% and institutions at 9%. …  

    Indian higher education has been progressing at a fast pace adding over 20,000 colleges and about 8 million students between the ten year period 2001 - 2011. As of 2011, Indian higher education system is spread over 42 central universities, 275 state universities, 130 deemed universities and 90 private universities. … [2]

    [1] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Economic Overview’, p.8.

    [2] ‘HIGHER EDUCATION IN INDIA - Access, Equity, Quality’,  Obadya Ray Shaguri - EAN World Congress Scholar 2013, accessed 27 February 2019.

17. The applicant, who had not studied for some years in Australia, still said he wished to complete a degree course in Australia. However, and as stated at hearing, the Tribunal may accept (and now does accept) that the applicant would be best served by returning to India to study and or work (should he wish) under the guidance of his family in the Punjab. Be that as it may, the Tribunal proposes to accept the applicant or his family may suffer some limited hardship if his Student visa is cancelled.

18. Regarding the circumstances in which the ground for cancellation arose, this was that the applicant had failed to maintain enrolment in a registered course of study. As stated herein, the Tribunal notes the applicant had only completed one six month vocational level course since arriving in Australia almost five years prior to the hearing.

19. At hearing, the applicant also had said he was not sufficiently competent in the English language to continue his studies (when he had first arrived). When it was then put to him he could have deferred his studies and returned to India to improve his English language skills, he said that advice he received in Australia was that this would be a waste of his time and resources. However, after then noting that he had (words to the effect) wasted his time and resources by remaining in Australia and not studying, he conceded this was correct.

20. The applicant also said that his parents, who financially supported his studies in Australia, were not able to continue to do so shortly after arriving in Australia; but though no corroborating evidence was provided, he said their financial situation had now improved. However, the Tribunal does not understand the applicant now receives any monies from his parents as he works in Australia (discussed below).

21. The applicant also said that he was depressed and had attended a psychologist on around seven occasions between late 2016 and November 2018 (though no corroborating evidence was provided). That being said, at hearing the applicant said he arrived in Australia in June 2014 and resided on the Gold Coast for more than one year (he was not employed on the Gold Coast). After that time he relocated to Newcastle – possibly sometime in mid to late 2015 (where he worked in a restaurant); then to Albury – where he resided for several months (and where he worked as a trolley collector at a shopping centre); and then to Raymond Terrace in August 2018 (where he also worked as a trolley collector). When then asked, the applicant confirmed that for most of his time in Newcastle, Albury and Raymond Terrace, he had worked in the nominated occupations (for up to 20 hours per week). The applicant was uncertain for how long he had resided in locations away from the Gold Coast but he did appear to believe he had only resided on the Gold Coast for ‘over one year’.

22. However, when the Tribunal noted that any claimed depression he suffered (from presumably around 2016) did not prevent him from working, the applicant said he was ‘not working all the time’. The Tribunal has rejected the latter evidence as false, given it believes it had given him a sufficient opportunity to clarify his evidence about his work in Australia. The Tribunal therefore finds that for the substantial majority of the time the applicant resided in different areas in Australia (away from the Gold Coast), he was working (up to 20 hours per week). That said, even if the Tribunal accepts the applicant attended a psychologist when and for the time he claimed, without more I am not satisfied this claimed depression prevented him from studying in Australia.

23. At hearing the Tribunal also said that his parents’ (at least initial) inability to provide financial support and perhaps more importantly, his ongoing failure to study in Australia, may satisfy the Tribunal that he is not a (words to the effect) genuine student. The applicant conceded he had ‘wasted time’ and that he had ‘some issues’; but he now intends to study in Australia. However, based on the evidence before the Tribunal, I do not accept the applicant now intends to study in Australia at the higher education level.

24. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. Further, after having considered all the accepted evidence, the Tribunal is not satisfied the applicant now had any compelling need to travel to or remain in Australia. 

25. Next, if the applicant’s Student visa is cancelled he would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before it, the Tribunal does not accept the Indian applicant would be subject to indefinite detention. Further he could temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

26. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.  

27. However, after then considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    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.