Amardeep Singh (Migration)

Amardeep Singh (Migration) [2018] AATA 5184 (26 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amardeep Singh
CASE NUMBER:  1701210
HOME AFFAIRS REFERENCE(S):           BCC2016/4204906
MEMBER:Stephen Conwell
DATE:26 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 26 September 2018 at 3:54pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa –not enrolled in a registered course of study – breach of condition 8202 – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116,140
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 18 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 had not been enrolled in a registered course since 30 July 2016. The delegate went on to consider whether the visa should be cancelled and weighed the factors for and against before deciding to cancel 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.
The applicant appeared before the Tribunal on 17 September 2018 to give evidence and present arguments. The Tribunal Hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant provided a copy of the delegate’s decision with his application for review.
Where used in this decision:
·COE refers to Confirmation of Enrolment;
·The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);
·VET refers to Vocational Education and Training.
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?
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. 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.
The Tribunal notes that the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) because it appeared that the applicant was not enrolled in a registered course of study since 30 July 2016. The NOICC was issued almost 6 months after the applicant had allegedly stopped being enrolled in a registered course. The delegate’s decision indicates that the applicant did not dispute there are grounds for cancellation.
The applicant’s representative responded to the Department on 9 and 17 January 2017. The first response notified the Department of being appointed as the applicant’s representative and requested an extension of time, which was granted. The response of 17 January 2017 does not dispute the applicant’s period of non-enrolment and breach of condition 8202, however it seeks to explain the circumstances of the breach and it submits reasons why the visa should not be cancelled.
The applicant confirmed to the Tribunal at hearing that he was not enrolled in a registered course of study since 30 July 2016 for some six months. However he requested that weight be given to his circumstances and that the Tribunal use its discretion and not cancel his visa.
Given that the applicant confirmed he was not enrolled in a registered course of study for six months, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
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 Tribunal received a submission from the applicant’s representative dated 16 September 2018 providing reasons why the applicant’s visa should not be cancelled. The submission is summarised as follows:
·As there has been no change in circumstances since the cancellation of Mr. Singh’s visa, the submission of 17 January 2017 to the Department was still relevant.
·The applicant came to Australia to study a Bachelor of Business, however on arrival he found it to adjust to adjust to a new country and study environment, which adversely affected his studies.
·He sought a release from his Bachelor of Business degree and relocated to Melbourne where he had relatives and friends.
·As he was concerned about performing poorly in his bachelor’s degree, the applicant undertook lower level courses first and enrolled in and completed a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma in Hospitality.
·In the course of 2016 the applicant’s grandmother became ill and subsequently died in late 2016; the applicant had a close relationship with her.
·After completing his hospitality diploma on 29 July 2016 the applicant became depressed due to his grandmother’s deteriorating health and decided to take a break before continuing studies. He was unaware of his obligation to remain enrolled in a registered course whilst on a Student visa.
·The applicant’s grandmother was admitted to hospital on 17 November 2016; she died a few days later on 23 November 2016. The applicant wished to return to India to see her but was persuaded by his parents to remain in Australia.
·The applicant was deeply affected by his grandmother’s death; since her passing, the applicant is more determined to complete his bachelor’s degree;
·Since being issued the NOICC the applicant has been on a Bridging visa E to which ‘Condition 8207 - No Study’ applies, amongst others. As such, the applicant has not sought enrolment in any other courses.
·The applicant did not intentionally breach his visa conditions and is apologetic for having done so.
·The applicant came to Australia with the sole purpose of studying and returning home with Australian qualifications. He has no adverse visa history bar non-enrolment for 6 months which he claims was unintentional.
·The applicant does not come from a wealthy family and cancellation of his visa will have an adverse effect on him and his family both financially and emotionally.
·Given the summary nature of the breach and also the supporting evidence of the circumstances the applicant simply wishes to complete his studies and return home with Australian qualifications.
The submission to the Tribunal dated 16 September 2018 was accompanied by the following documents:
·Certificate III in Commercial Cookery (completed 29/07/2016)
·Certificate IV in Commercial Cookery (completed 29/07/2016)
·Diploma of Hospitality Management (completed 29/07/2016)
·Senior School Certificate Examination 2013
·Death Statement for Surjeet Kaur issued by Sutlej Hospital and Heart Centre, dated 22 (23?) November 2016
·the applicant’s IELTS test report taken on 10 December 2016
·letter of recommendation dated 21 June 2014 from Brisbane Sikh Temple (Gurdwara) Inc.
·Receipt for Letter of Release from QUT (Queensland University of Technology) dated 27 June 2014
·photocopy of bio data page from the applicant’s passport
·assorted weekly pay receipts of the applicant for 2016/17
·the applicant’s PAYG summary to 30 June 2017
In his oral evidence at hearing the applicant stated:
·Before leaving India his first preference was to enrol in study in Melbourne but no places were available; he therefore accepted an offer from QUT in Queensland. He spent 4 months in Queensland before moving to Melbourne where his uncle (an Australian citizen) lives.
·His parents and an older brother live in India.
·His purpose in coming to Australia was to study.
·He did not seek migration advice regarding his cancelling the enrolment for which his visa was initially granted and therefore he was not aware that he was in breach of condition 8516 requiring that he maintain enrolment in the Higher Education sector.
·His desire to study is motivated by his grandmother with whom he had a close relationship. He hopes to be able to complete his studies in Australia as his grandmother forward have wished. He does not want to return home without Australian qualifications.
·He sat the English IELTS test in 2016 some 3 years after first arriving in Australia in order to check his English proficiency.
·He has worked part-time in a bakery and has complied with his visa conditions pertaining to work rights.
·He was grief-stricken by his grandmother’s illness and eventual death in 2016 which adversely affected his studies that year.
·His family will suffer financial loss should his Student visa be cancelled.
The Tribunal gives some weight to the fact that having accepted an offer of enrolment from QUT the applicant remain there for only 4 months before quitting his studies and relocating to Melbourne. The applicant’s oral evidence suggests that his wish was always to come to Melbourne and not having obtained an offer of enrolment from a Melbourne education provider, he accepted the offer from QUT to study at the Higher Education level.
The Tribunal is not satisfied that the applicant held a genuine intention to study at QUT; the Tribunal finds that the applicant accepted the QUT placement in order to gain entry into Australia, intending always to relocate to Melbourne at the earliest opportunity.
The applicant arrived in Queensland on 26 January 2014 and after 4 months onshore quit his Higher Education studies and relocated to Melbourne to enrol in the VET sector. This was in breach of condition 8516 attaching to his Student visa - a breach which the applicant claims was unintentional. A Student visa holder is required to acknowledge and abide by any conditions attaching to their visa and the Tribunal finds that it is not unreasonable to expect a visa holder to abide by his or her visa conditions.
The Tribunal gives some weight to the fact that the applicant completed his Diploma of Hospitality course. He has outlined the reasons why he wants to recommence and complete his Bachelor of Business degree from an Australian education provider. Notwithstanding this, the Tribunal is mindful that the applicant has not complied with his visa condition 8516 for all but four months of his time onshore. Furthermore he was not enrolled in a registered course of study for a substantial period of time.
The applicant’s evidence is that he was grief-stricken by his grandmother’s illness and eventual death in 2016 which adversely affected his studies that year. Whilst the Tribunal takes note of these comments, in the absence of adequate medical evidence in support of these claims, the Tribunal finds them unconvincing and is not persuaded by them.
The Tribunal notes that the applicant wishes to remain in Australia as he does not want to return home without a qualification. In spite of demonstrating that he came to Australia to study and stating that he wants to complete his studies, the Tribunal does not accept that these reasons outweigh the issue at hand, that the applicant has a substantial study breach in contravention of a visa condition.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant said that a cancellation will cause him and his family financial hardship. He said that he wants to remain in Australia and study so that he can “make his grandmother proud”. He said Australian qualifications are highly regarded in India.
The Tribunal accepts that a cancellation will cause some hardship on the applicant and his family. Given the significant amount of money required to save in order to pay for an education, a cancellation for the applicant means he is unable to complete his qualification in Australia. The Tribunal appreciates that such an eventuality is disappointing. The Tribunal accepts that the applicant would not be able to continue to obtain a bachelor degree in the short to medium term in Australia and that an Australian qualification is highly regarded in India.
However the Tribunal does not accept that the applicant would not be able to complete business or hospitality studies in India; nor does it accept that the applicant would not be able to obtain employment. Given this, the Tribunal does not accept that the considerations put forward by the applicant outweigh the severity of the breach in order not to cancel the visa.
Circumstances in which ground of cancellation arose
The applicant’s agent provided responses to the NOICC dated 9 and 17 January 2017 in which he claims that the applicant is a hard-working, genuine student who was adversely affected by his grandmother’s illness and subsequent death in late 2016. He claims that his grandmother’s death affected his ability to study and he requests one more opportunity to study in Australia so that he can return home with Australian qualifications.
The Tribunal has considered the claims made by the applicant. Whilst the Tribunal accepts that the applicant’s grandmother’s illness and death in late 2016 would have been upsetting to him, it does not accept as plausible that the applicant was so emotionally upset as to not enrol in study for half a year. Indeed the Tribunal notes that the applicant did not re-enol in study upon completing the Diploma of Hospitality on 29 July 2016, several months before his grandmother was admitted to hospital in late November 2016, where she passed away a few days later. Given this, the Tribunal gives little weight to this explanation.
Considering the circumstances in which the breach occurred the Tribunal does not accept that his grandmother’s illness and eventual death in late 2016 prevented the applicant from enrolling in and continuing his studies for a substantial period of half a year.
Past and present conduct of the visa holder towards the department
The Tribunal acknowledges that the applicant has responded to all requests for information in timely fashion. However it is not satisfied that the illness and death of his grandmother is a reasonable and legitimate explanation for his non-enrolment for six months. The applicant’s explanation is unconvincing and the Tribunal gives it no weight in light of the lengthy period of the breach.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
If the applicant’s visa is cancelled, he will be given a time limited period in which he may make plans to leave Australia and he will be limited in his ability to apply for another visa. The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight.
Whether there would be consequential cancellations under s.140
The applicant has no partner in Australia and no one else is associated with the visa.
Whether any international obligations would be breached as a result of the cancellation
There is nothing before the Tribunal to suggest the applicant has applied for protection or that the Tribunal should consider this.
Any other relevant matters
Before closing the hearing the Tribunal asked the applicant if there is anything else he wished to be considered and he said he has submitted everything.
Considering the circumstances as a whole, and the evidence before it, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Stephen Conwell
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 5184

26 September 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Breach

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction