1509756 (Migration)

[2016] AATA 3197

1509756 (Migration) [2016] AATA 3197 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARMINJIT SINGH

CASE NUMBER:  1509756

DIBP REFERENCE(S):  BCC2014/2052567

MEMBER:Antoinette Younes

DATE:9 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 09 February 2016 at 1:04pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 July 2015 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 did not meet condition 8202(2) which requires the visa holder to 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 5 February 2016 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. In the decision record provided by the applicant, it is noted that on 11 June 2015, the Department sent to the applicant a notice of intention to consider cancellation on the basis that information available in the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 25 July 2014. In response to the notice, in an email on 15 June 2015, the applicant stated that:

   a.There have been financial problems in the family. His father was not well so he left Australia but prior to leaving Australia, he contacted the College in relation to taking holidays because he had to go to see his father. The College refused to give him leave so he requested a new confirmation of enrolment in order to continue his studies but the College refused until he cleared the fees.

   b.He was unable to clear the fees because he had financial problems. He applied to another institution and he successfully obtained a new confirmation of enrolment. He then left Australia to see his father.

   c.On return to Australia, he did not have enough funds and his family was not able to support him to pay his college fees. The college reported him to the Department. About two weeks ago, he contacted his family in relation to his fees and a medical certificate. He will start his studies and become a genuine student in Australia.

   d.He provided the above reasons on 21 October 2014 but he did not receive any decision regarding his visa at that time. He was waiting for a decision to be made so that he could start his studies and become a genuine student.

9. In the course of the hearing, the Tribunal discussed with the applicant that it would appear that he had not enrolled in a registered course of study since 25 July 2014 which suggests that he was in breach of condition 8202(2). The applicant referred to a document which he had provided prior to the commencement of the hearing, namely a Confirmation of Enrolment for a Bachelor of Business course commencing on 11 November 2013 until 28 October 2016 (folio 45), at Group Colleges Australia (GCA). The applicant gave evidence that his enrolment in that course was cancelled by the education provider for non-attendance and non-payment. He stated that his father in India was unwell.  He referred to the medical certificate provided in relation to his father’s illness (folio 43), and stated that he did not have access to funds and consequently he was unable to pay his tuition fees. He said he attended college for about 2-3 months from the commencement of the course, namely November 2013 until around February 2014.

10. The Tribunal referred to the medical certificate provided by the applicant relating to his father (folio 43) and queried the seriousness and significance of the father’s illness, as well as the fact that the certificate refers to the period of illness from 10 January 2014 until 14 May 2014, prior to 25 July 2014 when the applicant was not enrolled in a course.

11. In relation to documents from GCA (folios 46 to 64) provided by the applicant, the applicant stated that GCA had offered him another course, namely a Bachelor of Business commencing on 14 July 2014 until 23 July 2017 but the College did not confirm enrolment because he could not pay the fees.

12. The applicant accepted that it is correct that since 25 July 2014, he had not been enrolled in a registered course of study. He stated that he is currently not studying or working. He said he lives with a friend. The Tribunal referred to documents relating to applications and decisions by the Department (folios 65-78), one of which relates to a decision on 9 January 2015 concerning a refusal to grant a subclass 457.

13. The applicant gave evidence that he had applied for a subclass 457. The Tribunal indicated that the application for a subclass 457 suggests that he wanted to work in Australia full-time rather than study, contrary to the intentions of the subclass 573 he was granted. The applicant stated that he was advised by his friends to apply for the subclass 457. He said he has made mistakes but asks to be given another chance.

14. On the basis of the available information, the Tribunal finds that since 25 July 2014, the applicant has not been enrolled in a registered course of study.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. 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.

16. 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 purpose of the visa holder’s travel and stay in Australia

17. The applicant was granted the visa to study in Australia. The evidence before the Tribunal indicates that the applicant’s lack of enrolment (as well as his stated level of attendance) is incommensurate with that purpose.

18. Furthermore, the Tribunal is satisfied in the circumstances that having applied for a subclass 457 indicates that the applicant’s interest in being in Australia is to work rather than study, contrary to the objectives of the student visa he was granted.

    Reason and extent of any breach of a visa condition (if relevant)

19. The applicant has acknowledged that he has not been enrolled in any course since 25 July 2014.   He explained the lack of enrolment on the basis of his father’s illness leading to a lack of funds. The Tribunal accepts as plausible that the applicant’s father was unwell but on the basis of the available information, the Tribunal is not persuaded that the father’s illness explains the non-compliance.

20. On his own evidence, the applicant attended classes for only about three months, until about February 2014, raising serious doubts about him wanting to study in Australia. He unsuccessfully applied for a subclass 457, an employer sponsored visa for those wishing to work full time in Australia, raising further doubts about him having genuine intentions to study. The Tribunal has carefully considered the applicant’s explanations but finds them unpersuasive.

21. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that any illness suffered by the father contributed to the applicant’s inability to pay his tuition fees (or his stated limited attendance of classes).  On balance, the Tribunal is not satisfied that those factors caused the applicant lack of enrolment in a course. The applicant was granted the visa in order to study in Australia.

    Degree of hardship that may be caused

22. The Tribunal appreciates that the cancellation of the visa may cause the applicant a certain degree of hardship such as not being able to pursue further studies in Australia.  However, on the basis of the available information, the Tribunal is not satisfied that the applicant would pursue any further studies.

23. Overall, looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that would warrant the favourable exercise of discretion.

    Circumstances in which ground of cancellation arose

24. As outlined above, the applicant was not enrolled in a registered course, contrary to a visa condition.  His personal reasons as accepted by the Tribunal are not persuasive.

    Past and present conduct of the visa holder towards the department

25. The applicant’s conduct towards the Department is noncontroversial. He did respond to the notice of intention to consider cancellation.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

26. This is not a breach of the holder of a subclass 457 visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

27. The applicant is not in detention and he would be expected to comply with the conditions of any subsequent visa granted, including a bridging visa.

    Whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that cancellation of the applicant’s visa would lead to the cancellation of any other person’s visa under  s.140 of the Act.

    Whether any international obligations would be breached as a result of the cancellation

29. There is no evidence before the Tribunal and the applicant is not claiming that there are any international obligations that would be breached as a result of the cancellation.

    The impact on any victims of family violence

30. There is no evidence before the Tribunal that there is any victim of domestic violence or that there would be any such impact.

    Any other relevant matters raised by the visa holder

31. The Tribunal acknowledges that the applicant travelled to Australia to study and he did study for a short period of time but his lack of enrolment after July 2014 raises serious doubts about his intentions to pursue any further studies in Australia.   The Tribunal considers the applicant’s lack of enrolment to be significant and outweighs his own claimed personal circumstances which are not exceptional or warrant the favourable exercise of discretion. The applicant was granted a visa to study in Australia and it is expected that he would do so.

32. In consideration of the evidence as a whole, and for the stated reasons, the Tribunal is satisfied that there are no factors that would lead to the favourable exercise of discretion in this matter.

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

    DECISION

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

    Antoinette Younes
    Senior 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.