1511816 (Migration)

[2016] AATA 4147

1511816 (Migration) [2016] AATA 4147 (20 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navpreet Singh

CASE NUMBER:  1511816

DIBP REFERENCE(S):  BCC2015/1489015

MEMBER:David Corrigan

DATE:20 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 20 July 2016 at 3:47pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 August 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 had not complied with condition 8202(2). 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 20 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 27 August 2013.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was not enrolled in a registered course of study from 14 April 2015 until 24 August 2015 (when the decision to cancel was made).  At the hearing, the applicant told the Tribunal that he had ceased his studies in Certificate IV, Diploma of Bachelor of Business which he had been enrolled in when he came to Australia in September 2013.  He said he then enrolled in Certificate courses in Automotive which he only attended one week in before enrolling in a Certificate III in Painting and Decorating.  He stated that he had not attended his Certificate III in Painting and Decorating course for 5-6 months prior to the visa cancellation.  On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 14 April 2015 until 24 August 2015.  Nor was he the holder of a Subclass 560 or 571 (Schools Sector) visa. 

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for a period of over four months. 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 to exercise its discretion to cancel the visa.

11. 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 to and stay in Australia

12. The applicant told the Tribunal that when he came to Australia in September 2013, he undertook studies in a Certificate IV in Business and attended classes but he found the studies too difficult and that he applied for cancellation of the course and wanted to change studies.  The Tribunal is prepared to accept that travelled to Australia with the intention to study and has given this factor some weight in his favour.

    The extent of compliance with visa conditions

13. The Tribunal has taken into account that the applicant was in breach of condition 8202(2) for a significant period of time from 14 April 2015 until 24 August 2015.  Overall it considers the extent of the breach is a significant factor that points to cancelling the visa.

14. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions.  It considers this is a consideration that is in his favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

15. The applicant told the Tribunal that he attended his Certificate III in Painting and Decorating course at Della International College for 3-4 months but he stopped going to classes because he wanted to learn about painting practically so he began working as a painter.  When the Tribunal mentioned to him that it had earlier asked him what work he had done since coming to Australia and he had said working in a restaurant and being a trolley collector but had not mentioned painting, he claimed that he was not being paid and was just learning about painting.  He then later stated that he didn’t have the money to pay the remaining fees of the Certificate III course and he wanted to learn about painting, so he could then work and pay the fees. 

16. The Tribunal does not consider the applicant’s evidence on these matters to be credible.  Firstly, he did refer to this painting work when he was asked earlier about what work he had done in Australia.  The Tribunal does not find it credible that he would not have referred to this work even if it was unpaid when asked and it does not accept that he would work unpaid for a significant period as a painter particularly if he had financial difficulties.  Secondly, the applicant told the Tribunal that he did not seek to defer his course studies with his educational provider in the light of his claimed financial difficulties.  Thirdly, the Tribunal does not consider it credible that the applicant who was granted a Subclass 573 visa to study at the Higher Education Sector level and to undertake a Bachelor of Business would not have had the money to pay for a relatively inexpensive certificate level course.  Fourthly, the Tribunal does not consider it credible that the applicant would cease studies in painting to “learn” more about painting by going and working for another person.   

17. The applicant’s evidence was that he stopped attending classes and did not pay the remaining fee of the Certificate III in Painting and Decorating.  The applicant was granted the visa for the purpose of study and he failed to remain in enrolled in a registered course.

18. Considering all of the evidence, the Tribunal does not accept that the breach of the condition occurred in extenuating circumstances beyond his control.  It considers the circumstances considered as a whole support the cancellation of the visa. 

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

19. The Tribunal accepts that the cancellation of the visa may lead to the applicant having to return to India, but he did not provide any evidence to indicate that there would be any degree of hardship to him or his family members if his visa is cancelled. 

20. The Tribunal considers on the evidence before it, the applicant and his family members will not face any significant degree of financial, psychological, emotional or other hardship if his visa is cancelled and has given this factor only limited weight in his favour.

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

21. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

22. There are no other persons whose visas would, or may be cancelled and the Tribunal finds this factor is not relevant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

23. The applicant did not raise any matters that indicated that there would be any breach of any obligations under any relevant international agreements and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

24. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

25. The applicant told the Tribunal he is currently on a bridging visa.Therefore, the cancellation of his student visa will not directly lead to him becoming an unlawful citizen.  Whilst the applicant may eventually become an unlawful non-citizen and liable for detention and removal, the Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that point to the cancellation of the visa.  The Tribunal is not satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because he cannot be removed from Australia consistently with Australia’s non-refoulement obligations. 

26. There are no provisions of the Act that that prevent the applicant from validly applying for a protection visa without the Minister personally intervening.  Whilst he may be prevented from making a valid application for other visas without the Minister personally intervening, this is only a factor that the Tribunal gives limited weight in his favour to.   

    Any other relevant matters

27. There are no other relevant factors.

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

    DECISION

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

    David Corrigan
    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.