VIVEK (Migration)

[2019] AATA 6055

VIVEK (Migration) [2019] AATA 6055 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VIVEK

CASE NUMBER:  1726034

HOME AFFAIRS REFERENCE(S):           BCC2017/2874886

MEMBER:Peter Booth

DATE:8 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2019 at 2:58pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – changes of colleges and courses, non-payment of fees – one college required the applicant to move to Melbourne – mental health – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 19 October 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 did not comply with condition 8202 (2) (a). 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 25 September 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.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 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 delegate’s decision cancelling the applicant’s visa is dated 19 October 2017. The delegate found that, at the time of the decision, the applicant had not been enrolled in a registered course of study from 6 March 2017. At the hearing the applicant affirmed the correctness of this finding. 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

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.The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as:

·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 applicant arrived in Australia on 30 June 2014.  At that time he held a Subclass 573 (Student) visa. He said that his intention was to study a variety of courses in Business Management, commencing with vocational courses and culminating in a Bachelor of Business Management. The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia.

·The extent of compliance with visa conditions

The applicant was not enrolled in a registered course of study between at least 6 March 2017 and 19 October 2017. Accordingly the applicant was in breach of condition 8202 (2) (a), indeed the applicant affirmed this fact.

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

The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

At the outset the Tribunal enquired as to the applicant’s study history after arriving in Australia on 30 June 2014. This process of enquiry was lengthy and complicated largely due to the applicant’s inability to remember dates together with his often vague and confused responses to questions. In the event Tribunal invited the applicants migration agents to prepare a chronology of these matters and provide them to the Tribunal. Nonetheless for completeness Tribunal rehearses the evidence of the applicant in substance as it was received.

The applicant said that he completed the Certificate II and III courses in Business Management “within six months”, this was later clarified to be “in December 2014”. He then said that he completed the Certificate IV course in Business Management “maybe six months later” and, later clarified to some extent when he said “in 2015”. He said that he completed the Diploma in Business Management “at the end of 2015”, he was unable to be more precise.  He said that he commenced but “failed” an Advanced Diploma of Business Management. He said that he found out at this time that he had to go to Melbourne to complete his studies in the next course in the series.  He said that he “did not want to” relocate to Melbourne to study. In response to further questions from the Tribunal he said he started the Advanced Diploma of Business Management “in January 2016”. He said that he was excluded from the course in “about March 2016”. The Tribunal enquired why he was told that he had to go to Melbourne to complete his studies. After much discussion it seemed that that the course to which he was referring was a Bachelor of Business Management offered by the University of Canberra. Apparently this was part of the series of courses to which he had subscribed. He had been told that this course, whilst being offered by the University of Canberra, could either be undertaken at its Sydney campus or at its campus in Canberra.

At all events he said there were several reasons why he did not want to continue his studies in Melbourne. Firstly because he had established social contacts in Sydney.  Secondly he had “heard about something which had happened to the student in Melbourne”, the students being of Indian ethnicity and that apparently on that basis his “parents did not want me to go”. He added that he was from a small town in India and would have found it very hard to move to Melbourne. In response to a query from the Tribunal he said that he “went to many agents and tried to get admission to another university”. In the event he was admitted to a Bachelor of Business course at Group Colleges Australia. He said that this was in “early 2017”. In answer to an enquiry from the Tribunal he said that he could supply a Confirmation of Enrolment document (COE) in relation to that course. In any event during the course of the hearing he accessed his email account on his mobile telephone and informed the tribunal that he enrolled in that course and it was due to start on 16 January 2017. The Tribunal pointed out that this appeared contradictory to his earlier affirmation that he had not been enrolled in a registered course of study from 6 March 2017.

In any event the applicant said that he had been studying the Bachelor of Business course and that was due to finish on 6 December 2019. However in response to some further questions in the Tribunal he said that he “left that course” because “my parents pressured me and wanted me to go to a university”. In answer to a question from the Tribunal he said that he abandoned the course “in about March or April 2017”. He said that he tried to enrolled “at other universities and went to many agents”. It was during this process that he became aware that his visa had been cancelled. He gave evidence that this awareness occurred on about “23 October 2017”. He said that he had not been aware that the Department was intending to cancel his visa and had not received notification to that effect. When asked to explain this he said “I was not looking at emails” and that he had “changed my phone” and that when he went to an agent the agent had told him that the agent had seen that “they have been trying to contact me” and that his visa had been cancelled. In answer to an enquiry from the Tribunal he said that he acquired the new phone “in early September 2017”. The Tribunal observed that the delegate’s decision referred to the notice being sent on 5 September 2017. The applicant said that he did not know if the Notice of Intention to Cancel the visa had been sent by email or not. This was corroborated by the migration agent who also said no inquiries have been made of the Department in that regard. In response to some questions from the Tribunal the applicant said he did not know if he had received the notice of intention to cancel a visit by email or not. He said that he had not examined his emails to establish if he had received such a notice. He said that when he accessed his emails by way of the education agent’s computer he saw that his visa had been cancelled. He said that he did not examine any other emails in order to establish whether he had received notification of the intention to cancel the visa and had not done so since that time.

The applicant said that he had subsequently enrolled in another course, namely an Advanced Diploma of business at “New England college”. This course was due to commence on 14 November 2017. In answer to a question from the Tribunal he said that he had not been studying between March 2017 and November 2017 because he was “trying to get admissions” he said that he completed the Advanced Diploma in Business on 12 August 2018. Then he enrolled in a Bachelor of Business at “Elite”, presumably another education provider, on 10 September 2018. He said that he became aware that the college was being “audited” and that he did not want to “attend or pay fees”. Apparently his enrolment with that education provider was cancelled due to non-payment of fees on 11 March 2019. In answer to a question from the Tribunal he said that he had “attended some classes”. In answer to question from the Tribunal the applicant said that “Elite” had not shut down. The Tribunal enquired whether he had applied to transfer his course of study from “Elite” to another course provider. He said that he could “not get anything because I had no student visa”.

The applicant said that he now had another COE with a new education provider in a course entitled “Graduate Diploma in Management”. This enrolment apparently is conditional upon the applicant having a valid visa. This course is due to start on 13 January 2020 and complete on 10 January 2021. In answer to question from the Tribunal the applicant’s migration agent said that this enrolment had been procured “late last week” or “early this week”.

The Tribunal informed the applicant that it had read the written submissions prepared by his migration agent dated 23 September 2019 and they would be taken into account. The applicant was invited to add anything further to his application. He said that he wanted to continue study and to help “his father and everyone”. He said he was from a small town and found it hard to adjust in Sydney but that he wanted to go back to his home country with a degree. The Tribunal pointed out there was not currently going to undertake Bachelor’s course but rather a Graduate Diploma. The answer appeared to be that this qualification may give rise to a Bachelor’s degree further on with additional study. The Tribunal observed that the written submission adverted to “depression” and “anxiety” to which the applicant had not provided any oral evidence. He was invited to give evidence on that issue. In substance he said that he had a lot of depression and anxiety and there were also problems at home with his family. The applicant became somewhat distressed at this point. The Tribunal pointed out that in the migration agent’s written submissions there was a short report from a psychologist dated 8 February 2017. This report concluded that indeed when the applicant had been examined by the psychologist that he was suffering from depression to some extent. The Tribunal enquired whether the applicant had visited the psychologist on more than one occasion. He said that he had seen the psychologist twice but that the applicant was very busy at that time and seeing education agents and could not see the psychiatrist on any more occasions. He added that it was also costly and he did not have the money. Apparently the second appointment was on 23 February 2017, the first being on 8 February 2017.

The applicant’s migration agent, Mr Parashar was invited to make any submissions he considered appropriate. In substance Mr Parashar said that his client came from a small town in India and had been good student. His parents decided to send him overseas to further his education. He was assured by the education agent that the package of courses to which he subscribed was the best way to undertake that study. The applicant arrived in Australia and undertook the courses but then was told that he needed to move to Melbourne in order to complete them. The applicant had heard about “incidents” in Melbourne and he and his parents did not want him to move to Melbourne. This affected the applicant psychologically and he failed his Advanced Diploma course because he wanted to stay in Sydney. He was then accepted into “GCA” to undertake a degree course but his parents said that it was not a university. The applicant was then accepted into an Advanced Diploma course at “New England College” and was to finish this course when he was then confronted with “visa issues”. Thereafter he was trying to get into any college and was accepted into a course offered by “Elite”. The Tribunal enquired as to the timing of the “incidents” involving Indian students in Melbourne and was informed by the migration agent and the applicant that the “attacks” had occurred in about “2007 or 2008”. The Tribunal enquired whether the decision not to pay fees at “Elite” and to allow his enrolment to be cancelled for that reason might be the cause of many of the subsequent problems confronting the applicant. Mr Parashar observed that the reason the applicant had difficulty thereafter was because his visa had been cancelled. The Tribunal also observed that the applicants intended course is not a bachelors level course but apparently a vocational course and at “Alpha Institute” apparently not at a university. The migration agent stated that whilst the intended course is not a bachelor level course that it “may lead to a bachelors course” at a “university”.

Subsequent to the hearing the applicant provided further documents to the Tribunal as follows.

a)First, a letter of offer and statement of fees from Alpha Institute dated 23 September 2019. In this document the applicant was offered a place in a graduate Diploma of management (learning) (face to face) due to start on 13 January 2020 and due to be completed on 10 January 2021. The letter of offer is not signed by the applicant. In the absence of an executed acceptance of the letter of offer the Tribunal does not accept that the applicant has accepted this offer, on a conditional basis or otherwise.

b)Secondly a variety of Confirmation of Enrolment documents as follows:

1)    Certificate II In Business (BSB20112) – 30/06/2014-29/08/2014 (Clarendon Business College (Academies Australasia)).

2)    Certificate III In Business (BSB30112) – 22/09/2014-21/11/2014 (Clarendon Business College (Academies Australasia)).

3)    Certificate IV In Business (BSB40212) – 19/01/2015–12/06/2015 (Clarendon Business College (Academies Australasia)).

4)    Diploma of Management (067145G)-06/07/2015-27/11/2015 (Clarendon Business College – also known as Academies Australasia)).

5)    Advance Diploma of Management (067148D) – 18/01/2016-10/06/2016 (Clarendon Business College – Academies Australasia)).

6)    Bachelor of Commerce (052588C) – 08/08/2016-30/06/2018 (University Of Canberra)).

7)    General English (092866K) – 26/9/2016-28/10/2016 (Southern Cross School of Business).

8)    General English (092866K) – 05/12/2016-30/12/2016 (Southern Cross School of Business).

9)    Bachelor of Accounting (062949M) – 16/01/2017-13/12/2019 (Group Colleges Australia (GCA), Universal Business School Sydney).

10) Advanced Diploma of Leadership and Management (087862A) 14/11/2017-12/08/2018 (New England Institute of Technology).

c)Thirdly a chronology as follows:

“CHRONOLOGY OF COURSES AS PER ORIGINAL COES FOR VISA FROM INDIA

1. CERTIFICATE II IN BUSINESS (BSB20112) – 30/06/2014-29/08/2014 (CLARENDON BUSINESS COLLEGE – ALSO KNOWN AS ACADEMIES AUSTRALASIA)

2. CERTIFICATE III IN BUSINESS (BSB30112) – 22/09/2014- 21/11/2014 (CLARENDON BUSINESS COLLEGE – ALSO KNOWN AS ACADEMIES AUSTRALASIA)

3. CERTIFICATE IV IN BUSINESS (BSB40212) – 19/01/2015 – 12/06/2015 (CLARENDON BUSINESS COLLEGE – ALSO KNOWN AS ACADEMIES AUSTRALASIA)

4. DIPLOMA OF MANAGEMENT (067145G)-06/07/2015-27/11/2015 (CLARENDON BUSINESS COLLEGE – ALSO KNOWN AS ACADEMIES AUSTRALASIA)

5. ADVANCE DIPLOMA OF MANAGEMENT (067148D) – 18/01/2016 -10/06/2016 (CLARENDON BUSINESS COLLEGE – ALSO KNOWN AS ACADEMIES AUSTRALASIA)

6. BACHELOR OF COMMERCE (052588C) – 08/08/2016-30/06/2018 (UNIVERSITY OF CANBERRA)

APPLICANT COMPLETED CERTIFICATE II, III, IV AND DIPLOMA OF MANAGEMENT FROM ACADEMIES AUSTRALASIA BY DECEMBER 2015

APPLICANT STARTED ADVANCE DIPLOMA AT ACADEMIES FROM 18 JAN 2016 AND CONTINUED ATTENDING CLASSES AND SUBMITTING ASSIGNMENTS. HE CONTINUED TILL JUNE 2016 BUT FAILED THE EXAMS BECAUSE HE WAS INFORMED THAT HE WOULD NEED TO GO TO MELBOURNE FOR HIS DEGREE IN AUGUST 2016 WHICH AFFECTED HIS ABILITY TO STUDY.

FROM JUNE 2016 TILL LATE NOVEMBER 2016 APPLICANT TRIED DIFFERENT AGENTS TO OBTAIN ADMISSION IN A BACHELOR’S DEGREE IN SYDNEY.

HE WAS ADVISED BY EDUCATION AGENTS TO COMPLETE ENGLISH COURSES SO THAT IT WOULD BE EASIER TO GET ADMISISON IN BACHELOR’S DEGREE IN A UNIVERSITY. HE COMPLETED FOLLOWING ENGLISH COURSES

7. GENERAL ENGLISH (092866K) - 26/9/2016 -28/10/2016 – (SOUTHERN CROSS SCHOOL OF BUSINESS)

8. GENERAL ENGLISH (092866K) – 05/12/2016 – 30/12/2016 – (SOUTHERN CROSS SCHOOL OF BUSINESS)

ON 28TH NOVEMBER 2016 HE WAS GIVEN THE OFFER TO DO BACHELOR OF ACCOUNTING FROM GROUP COLLEGE AUSTRALIA COMMENCING FROM JAN 2017

9. BACHELOR OF ACCOUNTING (062949M)- 16/01/2017-13/12/2019 (GROUP COLLEGES AUSTRALIA (GCA) – UNIVERSAL BUSINESS SCHOOL SYDNEY)

AFTER ATTENDING GCA INITIALLY HE WAS ASKED BY HIS FAMILY TO JOIN A UNIVERSITY DEGREE. HE STOPPED GOING TO GCA FOR HIS BACHELOR OF ACCOUNTING IN MARCH 2017.

HE STARTED LOOKING FOR ADMISSION IN A UNIVERSITY BACHELOR DEGREE FROM MAR 2017.

ON 23 OCTOBER 2017 HE FOUND OUT HIS VISA HAS BEEN CANCELLED. HE APPLIED FOR REVIEW IN AAT AND STARTED LOOKING TO DO SOME RELATED STUDIES TO KEEP HIMSELF OCCUPIED.

HE GOT COE FROM NEW ENGLAND COLLEGE FOR ADVANCE DIPLOMA IN LEADERSHIP AND MANAGEMENT.

10. ADVANCED DIPLOMA OF LEADERSHIP AND MANAGEMENT (087862A) -14/11/2017 TO 12/08/2018 – (NEW ENGLAND INSTITUTE OF TECHNOLOGY)

HE COMPLETED ADVANCED DIPLOMA IN LEADERSHIP AND MANAGEMENT IN AUGUST 2018.

11. BACHELOR OF BUSINESS (084217K) - 10/09/2018-03/07/2020 (ELITE EDUCATION INSTITUTE)

DUE TO AUDIT IN THE COLLEGE HE DIDN’T PAY THE FEES AND LEFT THE COLLEGE.

SINCE THEN HE HAS BEEN TRYING TO GET ADMISSION BY APPROACHING VARIOUS EDUCATION AGENTS BUT DUE TO HIS VISA STATUS HE IS UNABLE TO GET ANY CONFIRMED OFFER

12. HE HAS BEEN GIVEN A CONDITIONAL OFFER FOR GRADUATE DIPLOMA OF MANAGEMENT (099484A) - 13/01/2020-10/01/2021 (ALPHA INSTITUTE).”

The Tribunal accepts that the applicant was informed that he could only continue his studies in the “package” of courses by travelling to Melbourne for at least one part of this course. However the Tribunal does not accept the applicant’s reasons for not moving to Melbourne. The applicant had travelled from India to study in Sydney and had been doing so successfully for some time. It follows that the applicant could, if need be, move to Melbourne, continue studying and establish new social contacts. Further the “attacks” or “incidents” involving Indian students in Melbourne were events which had occurred on the applicant’s own evidence in 2007 or 2008, many years previous to his decision not to move to Melbourne. The Tribunal does not accept this as a valid reason not to move to move to Melbourne.

The applicant’s mental health at around the time he was informed of the need to travel to Melbourne to study is referred to in the written submissions dated 23 September 2019 and, in response to an invitation from the Tribunal was the subject of very limited oral evidence at the hearing. However the Tribunal accepts that the applicant saw a psychologist on two occasions namely on 8 February 2017 and 23 February 2017. The psychologist report does not conclude that the applicant is unable to study rather it states “in conclusion it is my professional opinion that Mr Vivek can continue his studies while ensuring that he follows the recommended plan above”. The plan to which the psychologist refers involved “continue psychological counselling”, “consult with a GP of physical health deteriorates” and “with regards to his studies, consideration is recommended for his challenged levels of concentration and motivation because of his depression and anxiety”.

At all events Mr Vivek did not continue to receive psychological counselling and gave no evidence of deteriorating “physical health” requiring any form of treatment. The Tribunal does not consider that any level of “depression” or “anxiety” was sufficient to interfere with his continued studies.

The applicant chose not to pay fees at “Elite” resulting in the cancellation of his enrolment. He did not take steps to transfer to another course provider until after his enrolment had been cancelled by “Elite”. This caused him significant problems in securing a new course enrolment; however this circumstance was of his own making. If he had paid the fees and obtained a new enrolment whilst enrolled at “Elite” in all likelihood is visa would not have been cancelled.

Having regard to the applicant’s oral evidence at the hearing, the migration agents submissions at the hearing, the written submissions of the migration agent dated 23 September 2019 and the document subsequently provided the Tribunal is not satisfied that the applicant’s non-enrolment from 6 March 2017 occurred for reasons outside the applicant’s control.

·Past and present behaviour of the visa holder towards the Department

There was no evidence in relation to this factor and the Tribunal gives it no weight.

·Whether there would be consequential cancellations under s.140

The Tribunal was provided with no evidence on this point and gives it little weight.

·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

The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

·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

There was no evidence in relation to this factor and the Tribunal gives it no weight.

·If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

There was no evidence in relation to this factor and the Tribunal gives it no weight.

·Any other relevant matters.

There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

DECISION

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

Peter Booth

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.