1701744 (Migration)

1701744 (Migration) [2018] AATA 5225 (12 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gaganpreet Singh
CASE NUMBER:  1701744
HOME AFFAIRS REFERENCE(S):           BCC2016/4332736
MEMBER:Joseph Lindsay
DATE:12 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 December 2018 at 5:44pm

CATCHWORDS
MIGRATION – cancellation – Subclass 573 Higher Education Sector visa – not enrolled in registered course – intentionally and voluntarily withdrew from higher education course for trade training – did not remain enrolled in registered higher education course – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 condition 8202(2)(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 January 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 delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student visa. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 10 October 2018 to give evidence and present arguments. The applicant spoke English throughout the Tribunal hearing and did not request the assistance of an interpreter.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
At the hearing, the applicant admitted that since 3 September 2015 he has not been enrolled in a registered course of study at the higher education level and, accordingly, the applicant has not complied with condition 8202(2)(a). The applicant admitted that he had not been enrolled in a registered course of study since 6 February 2016, and that was in relation to a Certificate III course enrolment, which is not a higher education course. The applicant admitted that he had breached condition 8202(2)(a).
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)(a).
Consideration of the discretion to cancel the visa
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’.
The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
In response to this issue at the hearing, the applicant indicated his main purpose in travelling to Australia was to study, but that there was no compelling need to travel to or remain in Australia.
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
In response to this issue at the hearing, the applicant indicated he had complied with his visa conditions. The Tribunal finds that the applicant appears to have complied with his visa conditions, apart from condition 8202.
Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship because it would be hard for him to go back to India without his education, and hard on his family considering the amount of money that has already been spent (or as he said, ‘wasted’). The applicant indicated that at the time of the hearing his father was gravely ill and only had a few hours to live.
In consideration of the applicant’s response, the Tribunal accepts that the applicant may suffer some hardship if his visa was cancelled in the circumstances as he has detailed.
However, the Tribunal notes that the applicant has already completed a Diploma in Information Technology. Accordingly, the Tribunal finds that the applicant is likely to be able to find work in his chosen field of endeavour should his visa be cancelled.
Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
There is no evidence that the visa holder has been uncooperative with the Department in the past.
The Tribunal accepts that there is no evidence that the visa holder has been uncooperative with the Department in the past. Having taken this into consideration, I give these considerations some weight in the visa holder’s favour.
Whether there would be consequential cancellations under s.140
When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa.
The Tribunal places low weight on this information in the applicant’s favour.
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
When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa and he would return to India if he did not get his visa.
The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.
At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to India.
The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal places low weight on this information in the applicant’s favour.
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 is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.
The Tribunal places low weight on this information in the applicant’s favour.
The circumstances in which the ground for cancellation arose
The circumstances in which the ground for cancellation arose were discussed in detail at the hearing.
The applicant submitted that he has had significant gambling problems since he has been in Australia and that for this reason he was not able to pay his course fees. The applicant estimated that he had gambled away approximately A$335,000 of his father’s money. He indicated that he had told his father what had happened and that his father paid all of his gambling debts for him. He indicated that, in connection with his gambling problems, he had attempted to self harm by taking about 20 painkillers (he described them as ‘a kind of paracetamol’) and then went to Werribee Hospital.
In support of his claim, he provided a number of documents including:
a. a letter from an IPC Health Financial Counsellor, Ms Rebecca Denny, dated 5 April 2017, indicating that the applicant had been receiving financial counselling in relation to him negotiating an affordable arrangement with his college so he could recommence study;
b. a ‘self-exclusion’ order from Crown Casino, dated 20 February 2016, indefinitely excluding the applicant from Crown Casino;
c. a letter from an IPC Health Therapeutic Counsellor, Ms Shereen Moneeb, dated 10 January 2017, indicating that the applicant had contacted Gamblers Help Western Intake on 8 August 2016 and requested counselling to address his problem gambling behaviour and financial issues;
d. an Outpatient Patient Tax Invoice for an emergency department attendance on 4 February 2016.
In consideration of the above, the Tribunal accepts that the applicant appears to have a problem with gambling and has sought counselling to assist him with those issues. However, the Tribunal is not satisfied that the applicant attempted self harm. The tax invoice from Werribee Hospital is evidence that the applicant attended the emergency department on 4 February 2016. No medical evidence was provided to substantiate the applicant’s claim that he attempted self harm.
The Tribunal queried the applicant about his study history. In accordance with s.359AA of the Act, the Tribunal discussed the applicant’s Provider Registration and International Student Management System (PRISMS) record with him.
The applicant indicated to the Tribunal that his true intentions were to study, get a degree in Engineering and then go back to India to support his father. The applicant then indicated he actually wanted to be a professional welder, and that he wanted to obtain welding qualifications in Australia so that he could return to India to be a professional welder. To that end, he indicated that from September 2014 to December 2016 he was working as a welder and metal fabricator in a factory in Altona, Victoria, where he welded bore piers and columns for pre cast bores. However, when asked if he had any documentary evidence to substantiate his claimed work, he indicated he had no documentation. The applicant then indicated to the Tribunal that, once he obtained his welding qualifications, he wanted to do a higher education course in management.
The PRISMS record notes that the applicant enrolled in a Certificate III in Engineering but that the provider cancelled his enrolment in this course because the applicant did not pay his course fees. In response, the applicant indicated that he had actually partially paid his course fees. The Tribunal put to the applicant that there was no indication from the PRISMS record that he had enrolled in a higher education course in management, to which he offered no response.
The applicant indicated that by mid 2015 he had finished his Diploma in Information Technology, but that by December 2014 he had already come to the view that he wanted to change courses, and not go on to study the Bachelor of Information Technology commencing on 20 July 2015. He indicated that he made his own mind up and decided to finish his studies at Victoria University in mid 2015, and that he tried to get into a trade course but could not. The applicant indicated that he only went through his lawyer for all his study arrangements and advice, and not the Department.
The applicant indicated to the Tribunal that he was aware he was on a 573 visa that required him to be enrolled in a higher education course but that he got advice from his lawyer that he could discontinue his higher education studies and undertake a trade course and then do a higher education course in management later.
The Tribunal put to the applicant that the Tribunal reasonably expected that the applicant knew that his higher education course was connected to his 573 visa, and that the applicant would reasonably have been aware that by cancelling his Bachelor of Information Technology course that it was going to impact on his visa. In response, the applicant indicated that he agreed with the Tribunal and that he knew that the purpose of his visa was so that he could get a higher education qualification in Australia.
Given the applicant’s admissions that he intentionally and voluntarily withdrew from his higher education course in mid 2015 to undertake trade training, the Tribunal put to the applicant that his claims in regard to his gambling problems appear to have occurred after he withdrew from his higher education course in mid 2015 and not before. The applicant indicated he did not wish to respond to the Tribunal in regard to this issue.
In consideration of the above, the Tribunal finds that the applicant decided to finish his higher education studies and not undertake the Bachelor of Information Technology at Victoria University in mid 2015, and instead enrolled in a trade course. The Tribunal finds that the applicant reasonably knew that in taking these actions he breached the conditions of his 573 visa that required him to remain enrolled in a registered higher education course. The Tribunal finds that the applicant’s gambling issues appear to have happened after he decided to finish his higher education studies in mid 2015. The Tribunal finds that the applicant’s gambling issues did not impact on his decision to finish his higher education studies in mid 2015.
Accordingly, the Tribunal does not accept that the circumstances in which the ground for cancellation arose cause the Tribunal to find that it should exercise its discretion in favour of the applicant. The Tribunal finds that the circumstances in which the ground for cancellation are not extenuating circumstances and were within the applicant’s control.
Any other relevant matters
The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
Conclusion
The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 May 2014, now some four and a half years ago, the applicant has not completed the higher education course (Bachelor of Information Technology) he originally came to Australia to study and has no intention of studying or completing it.
The Tribunal finds that since 3 September 2015 the applicant has not been enrolled in a registered course of study at the higher education level and, accordingly, the applicant has not complied with condition 8202(2)(a).
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Joseph Lindsay
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.

[2018] AATA 5225

12 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention