Abhideep Singh (Migration)

[2018] AATA 5977

Abhideep Singh (Migration) [2018] AATA 5977 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhideep Singh

CASE NUMBER:  1702340

HOME AFFAIRS REFERENCE(S):          BCC2017/130433

MEMBER:Helen Kroger

DATE:22 October 2918

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2018 at 1:34pm

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 – significant period of non-enrolment – circumstances giving rise to breach – life stressors – financial difficulties – 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).

2. The applicant, an Indian national, was granted a visa on 27 May 2014 to study in Australia.

3. On the 31 January 2017, Mr Singh was sent a Notice of Intention to Consider Cancellation of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant provided a response to the delegate on the 7 February 2017.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the 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.

5. The applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. An interpreter experienced in the Hindi and English languages was present but was not required for translation purposes as the applicant indicated he was sufficiently proficient in English. The applicant was not represented by an appointed migration representative.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 31 January 2017 and responded to the delegate on the 7 February 2017. At the hearing the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicated that he had not been enrolled in a registered course of study since 19 February 2016. The applicant confirmed that this was correct and did not dispute that he was not enrolled in a registered course of study from that time.

10. On the evidence before the Tribunal, namely the applicant’s admission during the hearing, the Tribunal finds that 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

11. 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’.

12. The Tribunal has considered the applicant’s evidence provided at the hearing along with the decision record provided by the applicant to the Tribunal.

13. The information provided to the Tribunal at the hearing has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

14. The applicant is an Indian national who is 23 years and 8 months of age. He first travelled to Australia in June 2014  with the intent to study and enrolled in a Diploma of Information Technology and a Bachelor of Information Technology which he commenced in July 2014. He submitted to the Tribunal that he returned to India in February 2015 to attend his sister’s wedding, and deferred the remaining subjects, with the intent to complete them on his return to Australia. During his time in India, his grandfather passed away, an event that he claims affected his emotional wellbeing. He told the Tribunal that he did not wish to return to Australia because of his emotional state and only did so under the strong direction of one of his parents.

15. He indicated that he was not “mentally strong enough” following his return to Australia, and never returned to complete the last two subjects required for successful completion of the Diploma of Information Technology. At the same time, the College was requesting a further payment to complete the two deferred subjects, money that he did not have the financial capacity to pay. He claims that the College cancelled his enrolment without formally notifying him and indicated that he understood the consequences of not attending classes or paying for the outstanding course fees and that the cancellation was not unexpected. He submitted to the Tribunal that he found the course very hard and too difficult and was being advised by his friends to change to a commercial cooking registered course which was easier to study in order to successfully complete.

16. The applicant subsequently enrolled in a commercial cooking registered course but did not have the financial capacity to pay for it and didn’t attend any classes. The applicant submitted that whilst this was a significantly different area of study to his original choice in Information Technology, the status that is accorded to an Australian qualification in India would provide him with greater opportunities on his return to India.  He also gave consideration to the prospect of returning home to India after four years, without having achieved any formal qualification or achievement.

17. The applicant has sought guidance from an Uncle who lives in India and owns a hotel in Kashmir. It is this same Uncle who suggested to the applicant that he appeal the decision of the delegate and he keeps in contact with him weekly. 

18. The Tribunal has considered the applicant’s written submission to the delegate which is extracted below:

    Thank you for giving me an opportunity to explain my situation. This letter I am completely trying to be honest with you and explained the developments that led to the cancellation of my COE. I sincerely hope  that the following infonnation will alleviate your concerns and doubts about the genuineness of my current situation and help you conclude that I should be given one last chance and my visa should not be cancelled.

    I came here in Australia on 19th June 2014 to study Bachelor of IT. As it was my firsthand experience of studying overseas , I found it difficult to cope with the new environment and study system, my interest to study IT declined but, somehow I managed to study few subjects and passed those subjects as well. In the mean time around Feb 2015 I had to go to India to attend my sister's wedding, in doing so I had to defer my two units which I decided to complete when I return back from India but when I returned back  to  Melbourne, the college explained me that I had to pay tuition fees of $2200 for deferring 2 units. I thought the college was ripping me which I believed was unfair.

    I had  already  started  disliking  the IT  course,  I  decided  to join  another  course, in  my mind  I   had developed interest into commercial cookery course, so I asked my college to provide me release letter but the college denied. And my next enrolment was also due on 9th  Aug 2015. I had  to manage  2 units defer  fees plus enrolment fees to enrol into the course- which came around $ 9000 . As the college denied to give me release letter, I desperately started collecting for funds. I was hopeless , my family from India couldn't send me financial support as they just had spent huge amount of money on my sister's wedding, Time went by in an attempt to collect money and crossed the deadline of enrolment and the college  cancelled  my  COE.

    I went to a Migration agent and they advised me to enrol in to my field of interest - commercial cookery and managed to get me enrolled into commercial cookery form South Pacific Institute Melbourne.

    I started looking for a job as I knew my family from India would not be able to support me for some time, I just sought to earn for my living and tuition fees. I tried hard but I couldn't find job in Melbourne. In order   to survive I moved to Sydney to live with my friend. They arranged me a job. I tried to change college to Sydney but most of the collages required to study  5 days which in my condition was not appropriate as I  was required to work to earn my living and arrange for my tuition fees. Time went by , South Pacific Institute  called me few  times  for  fees,  I  tried  to  maintain  my   study  requirement  by  attending  classes whenever I came to Melbourne, I believed in my friends saying that If I could manage to change college then I did not have to pay the fees due. I tried to change college but no luck until this happened.

    Now that things had happened and I have deep remorse for not maintaining my student visa condition and coming to this end, I have gone through so many factors including financial crisis. My intention to study in Australia is genuine but owing to the circumstances that led to the cancellation of COE, I was not able to maintain my study requirement.

    But my circumstances have improved, I have a very strong intention to complete study in Australia and get qualified with Australian degree. I never had and do not have any plans to circumvent Australian rules. If I had the desire to do so I would not have replied to this email. Failing to maintain enrollment or study is due to my ignorance and financial crisis.

19. The Tribunal gives some weight in favour of the applicant given he did commence his Diploma of Information Technology, deferring the last two subjects, pending his return for his sister’s wedding in India. However given the significance of the period of time during which he was not enrolled in a registered course of study, and the fact that he did not inform the Department or the course provider that he did not intend to complete his course, the Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

20. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

21. The applicant explained at the hearing the significance of having an Australian qualification and the opportunities this provides in India. He outlined the status accorded to an Australian qualification in seeking employment in India and the influence of his family on him to pursue his studies in Australia. The applicant told the Tribunal that he did not wish to return to Australia to complete his Diploma following the death of his grandfather, when he was in India for his sister’s birthday. He claims to have been in an emotionally fragile state and returned due to the strong encouragement from one of his parents.

22. He expressed his concern about returning to India after four years in Australia without any demonstrable achievement or qualification and how that would be considered by his family. He explained that enrolling in an Indian course of study did not hold the same status and respect and that the length of time required to undertake an Australian qualification was much shorter than that required in India.

23. He explained that he is close to an Uncle who has been providing counsel and advice, and who suggested that he appeal the decision of the delegate.  He told the Tribunal that this Uncle has a hotel in Kashmir and supported the decision to do a commercial cooking course as he would be able to pursue work later with him. The Tribunal has considered the support and assistance that this Uncle has provided and considered the applicants claims that the family, including a brother, are able to assist him in paying tuition fees.

24. The Tribunal has considered the applicant’s claims about his emotional state following the death of his grandfather and notes that the applicant was unable to provide any supportive documentation from witnesses or medical advice to support these claims. Given that these have not been provided the Tribunal places minimal weight on the emotional issues claimed by the applicant. The Tribunal appreciates that a cancellation would cause some disappointment and hardship in returning to his family in India, as indicated in the applicant’s submission. However the Tribunal gives more weight to the significance of the breach than the hardship potentially caused to the applicant in returning home to India.

    Circumstances in which ground of cancellation arose

25. The applicant explained to the Tribunal the circumstances around the period when he allowed his enrolment to lapse.  The applicant deferred the last two subjects of his diploma to return to India for a month during which his grandfather passed away. He outlined a number of issues that lead to him not returning to his studies. He cited his fragile emotional state at the time combined with financial difficulties he was experiencing in not being able to pay the extra tuition to cover the deferred subjects that was required by the course provider. His family were not in a position to assist and he sought work in Australia to provide for his expenses, and was unable to cover all of his financial commitments at that time.  He also indicated that he found the course very difficult and had lost interest in the area of information technology in which he had enrolled.

26. He explained to the Tribunal the stress he was experiencing at that time that impacted on his capacity to resolve the issues.

27. The Tribunal has some sympathy with the affect that his grandfather’s death had on him, along with the financial constraints he experienced in paying for the outstanding course fees. However the applicant confirmed to the Tribunal his understanding of the requirements of the student visa and the obligations imposed on him with the visa he had been granted and stated that he was not surprised that his enrolment had lapsed following his non attendance and lack of payment. The applicant provided no supporting documentation to suggest that he had made any attempt to resolve these issues with the course provider.

28. The Tribunal has carefully considered the circumstances around which the visa was cancelled and whilst it is not unsympathetic with the claimed emotional state of the applicant and the constrained financial circumstances, notes that the applicant has indicated his understanding of the visa requirements. The Tribunal appreciates that the death of a grandparent affecting close family members can be a difficult time for people of any age, the applicant had a responsibility to continue studying, or alternatively, inform the department and return home if he was unable to do so.

29. The Tribunal gives some weight to the applicant’s situation pertaining to the loss of his grandfather that caused emotional stress on a day to day basis combined with his financial difficulties that meant that he could not fund the deferred subjects. Whilst the Tribunal accepts the claims that the applicant was experiencing financial difficulties which are now resolved, he has provided no supporting documentation to indicate that he can pay for the entirety of any future course.

30. Given the circumstances above, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in excess of two years and eight months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

31. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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

32. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

33. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

34. The Tribunal notes that the applicant responded to the NOICC issued by the Department, requesting that his visa not be cancelled, that his circumstances have changed, seeking the opportunity to complete a qualification in Australia in an endeavour to improve his prospects in India. The Tribunal appreciates that an education in Australia may enhance the applicant’s career, however if he doesn’t achieve this, it does not prevent him from undertaking a Diploma and/or Bachelor degree in India.

35. The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions on their visa, he made no attempt to inform the Department or rectify the situation and the Tribunal places significant weight on the length of the breach, namely in excess of two years and eight months. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanations.

36. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach of in excess of two years and eight months is significant in the context of a student’s study period and the fact that he would be well aware of the expectations placed on him and he was unable to provide any evidence of attempts to inform the Department, nor attempt to fund enrolment in another course or indeed return home. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

   Helen Kroger
   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.