Bhullar (Migration)

[2018] AATA 3603

Bhullar (Migration) [2018] AATA 3603 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Taranjit Singh Bhullar

CASE NUMBER:  1706118

HOME AFFAIRS REFERENCE(S):           BCC2017/471877

MEMBER:Rachel Westaway

DATE:4 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 July 2018 at 5:24pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) visa – Breach of enrolment conditions – Enrolment in a registered course – Applicant never commenced Bachelor’s degree – Personal circumstances – Death of sibling – Current application Practice and procedure – Current application for Vocational studies visa –  Additional information not provided within the required time – Lost right to a hearing

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 March 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 delegate cancelled the visa on the basis that the applicant had not complied with a condition of 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.

3. The applicant was sent a letter dated 24 January 2018 inviting him to provide information about whether he was enrolled in a registered course between 3 July 2016 and 9 March 2017 and information about the circumstances in which the alleged breach occurred, compelling reasons to remain in Australia, compliance with visa conditions in general and hardship a cancellation may cause him or his family. The applicant was asked to respond by 7 February 2018. No request was made within this time frame. On 9 April 2018 the applicant’s migration agent stated that they were preparing a document however this request came outside of the required time period and as such, under the Migration Act 1958 the applicant has lost his right to a hearing. The Migration agent did not provide any reasons as to the delay or requirement for additional time. The Tribunal did not make a decision immediately and as of today’s date the submission has not been received. The Tribunal has therefore progressed to a decision on the information before it.

4. The applicant was represented in relation to the review by a registered migration agent.

5. 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

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. In applying for review the applicant provided the Tribunal with a copy of the delegate’s decision.

10. The decision outlined that the applicant had not been enrolled in a registered course of study since 3 July 2016 until a Notice of Intention to Consider Cancellation (NOICC) was sent to him on 6 March 2017. The applicant responded on 9 March 2017 and 21 March 2017 and did not negate that he was not enrolled in a registered course but rather provided details about the circumstances of his breach. The applicant provided a submission to the Department delegate in response to the NOICC stating that his non-compliance was related to his personal circumstances that were out of his control.

11. 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).

    Consideration of the discretion to cancel the visa

12. 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 circumstances in which the ground for cancellation arose.

13. The applicant provided the following responses to the Department on 9 and 21 March 2017 to the Notice of Intention to Consider Cancellation.

    ·     A certificate of enrolment for an Advanced Diploma of Business starting April 2017 and concluding April 2018.

    ·     A statutory declaration from Mr Harman Maan who shared a house with the applicant and has known him since 2014 outlining he was aware that his brother had [a medical episode].

    ·     A medical certificate dated March 2017 stating the applicant was being treated for psychological distress due to the death of his brother.

    ·     A death certificate for the applicant’s sister-in-law

    ·     A death certificate for the applicant’s mother

    ·     A response letter

14. The response letter outlined that the applicant first arrived in Australia on 7 October 2014 to study a Bachelor of Business at University of Tasmania.

15. He claims he had requested his agent delay the commencement of his course and he agent confirmed it should not be an issue. He stated that he reported to the university on the 14 October 2014 instead of the 8^th October however his enrolment was cancelled because he had not attended on the first day.

16. He then moved to Melbourne on 21 October 2014 and attempted to enrol at Princeton College but due to his cancelled Certificate of Enrolment (COE) he claims he was not accepted there either.

17. In October 2014 he stated he attempted to enrol in a Commercial cookery course.

18. He said that he had every intention of studying however he suffered mental anguish due to family related issues. He said he came to Australia to study but also to have a change because of the issues he was facing.

19. His family related issues included his sister-in-law dying in February 2012 and his mother dying in January 2013 in and his [brother’s death] in 2016.

20. The Tribunal gives significant weight to the applicant’s personal issues and appreciates that they were beyond his control. However the death of the applicant’s mother and sister in law occurred before the applicant came to Australia to study. Whilst the Tribunal accepts that the grieving period and shock of these two deaths may have had a long lasting impact on the applicant, he was able to clearly articulate in his response to the NOICC that he chose to come to Australia to study and to have a change due to this. Given he was aware of the impact these deaths had on him, the Tribunal is of the view that it is not unreasonable for the applicant to be aware of and responsible for his adherence to the conditions on his visa. He could have chosen to return home if he was unable to enrol or he could have reported the situation rather than remain in Australia for a significant period of time. Furthermore, whilst the applicant states that his enrolment was cancelled because he did not attend on the first day of enrolment; the applicant provided no evidence to support this claim. In addition to this, it is the applicant’s responsibility to ensure that approval has been given formally rather than relying on education provider’s oral assertions.

21. The Tribunal has also considered that the applicant never commenced his bachelor degree which was the subclass of visa he was granted. He completed a three months English course in a 28 month period of being in Australia. He was living in the community without a valid COE from 3 July 2016 until 9 March 2017. The NOICC was sent to the applicant on 6 March 2017 and he applied for a new Student visa at this time but for a course at a lower level. Given this, the applicant would not be meeting the requirements of the visa under review in any event.

22. Whilst the Tribunal gives significant weight to the applicant’s personal circumstances, they do not outweigh the severity of the breach. I have considered the evidence before me and place more weight on the fact that the applicant had not been enrolled in a registered course for more than 8 months. He had not complied the condition 8202, namely he was not enrolled in a registered course and did not supply a valid COE for this period. Whilst his personal circumstances pertaining to past events are given significant weight, he has been unable to demonstrate why he was unable to return home and avoid the breach or why he was unable to advise the Department. He provided no evidence to support his claim that he attempted to change his enrolment dates and could have informed the Department immediately and reported the course provider if he felt he had been treated unfairly. Given the applicant did not respond to the Tribunal’s requests for further information; the Tribunal did not have the benefit of discussing these issues with the applicant. As such the Tribunal finds that the applicant’s claims and family circumstances and claimed misunderstanding with the education provider do not outweigh the reason to cancel his visa.

    Past and present behaviour towards the Department.

23. There is no information before me to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department. He has responded to the NOICC. However the Tribunal does note that the applicant did not respond to the Tribunal’s request for further information. Given the seriousness of a visa cancellation, the Tribunal would expect that the applicant would take the time to provide the information requested of him

    The purpose of the applicant’s travel to and stay in Australia

24. The Tribunal has relied on the information before it and notes that the applicant has provide evidence that he proceeded to obtain a new enrolment for an Advanced Diploma of Business at St Peters Institute commencing 10 April 2017. Furthermore, he applied for a new student visa, Subclass 500 on 13 March 2017 after the NOICC was issued. Whilst these applications go some way in indicating the applicant may want to study, they have occurred at a time which appears to coincide with the possible cancellation of the visa under review and the Tribunal is therefore concerned about the applicant’s genuine intentions. His recent application for a subclass 500 to study in the Vocational Education Sector indicates that the subclass 573 (Higher Education level) visa under review would not be relevant to his needs because it is at a different level to his new course.

25. The Tribunal does not accept that the applicant’s more recent interest in studying outweighs the significant breach of 8 months of non-enrolment given the Tribunal’s observations as detailed above and therefore gives minimal weight in the applicant’s favour.

    Travel to and stay in Australia

26. There is no other evidence before me in relation to the applicant’s travel to Australia and reasons put forward by him to remain

    The extent of the applicant’s compliance with any conditions subject to which the visa was granted.

27. The applicant had not been enrolled in a registered course of study for more than 8 months.  Whilst he did seek a new enrolment it was for a course at a lower level and not for which his visa was granted. He therefore he did not comply with condition 8516 of his visa. The Tribunal appreciates that this is not the breach under review but does consider the 8 months of non-compliance to be significant and as such gives the new enrolment application no weight in his favour.

    The degree of hardship that may be caused to the applicant or his family members.

28. The Tribunal has limited information before it and has not had the benefit of speaking with the applicant at a hearing.

29. In his response to the NOICC, the applicant did not respond to matters concerning hardship for him or his family members as a result of a cancellation and he did not respond at all to the Tribunal’s written request inviting him to provide further information.

30. However the Tribunal appreciates that if the visa is cancelled, he will become an unlawful non-citizen and be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958. However, he does have other options which may make him eligible to apply for a bridging visa E to remain in Australia.

31. He will be subject to Section 48 of the Act which means that he will have limited options to apply for further visas in Australia. Additionally, he will be subject to Public Interest Criterion 4013 which means he may not be granted a temporary visa for three years from the date of this cancellation.

32. The Tribunal appreciates that the cancellation of a visa and having to return home without completing what the applicant states he came to do is disappointing for him and his family and would have required a significant financial commitment. The cancellation means that at this time the applicant cannot realise this investment and continue his studies.

33. There is no other information before the Tribunal in relation to the degree of hardship that may be caused to the applicant or his family members. The Tribunal notes that the issues discussed above would stem directly from the cancellation and whilst somewhat problematic, does not outweigh the seriousness of the breach and as such the Tribunal gives them limited weight.

34. The Tribunal has considered all of factors before it and finds that individually and cumulatively they do not outweigh the seriousness of the breach.

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

    DECISION

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

    Rachel Westaway
    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.