Brar (Migration)

[2019] AATA 624

Brar (Migration) [2019] AATA 624 (22 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avtar Singh Brar

CASE NUMBER:  1710200

HOME AFFAIRS REFERENCE(S):           BCC2017/1079958

MEMBER:Stephen Witts

DATE:22 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2019 at 9:25am

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 – no compelling need to remain in Australia as a student – 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 4 May 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, Mr Avtar Singh Brar, is a citizen of India. He was granted a visa to study in Australia.

3. The delegate cancelled the visa on 4 May 2017 on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh 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.

4. The applicant appeared before the Tribunal on 20 February 2019 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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.

10. According to the delegate’s decision record the applicant was not enrolled in a registered course of study between 8 July 2016 and 4 May 2017.

11. Adopting the procedure under s.359AA of the Act the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record.

12. According to the applicant’s PRISMS record the applicant has been enrolled in the following courses here in Australia:

    a)Certificate IV in Accounting cancelled in June 2014

    b)Diploma of Accounting cancelled in July 2014

    c)Certificate IV in Accounting finished on 31 December 2014

    d)Diploma of Accounting cancelled in 2015

    e)Bachelor of Commerce cancelled in 2015

    f)Certificate III in Commercial Cookery cancelled in 2015

    g)Certificate IV in Commercial Cookery cancelled in 2017

    h)Diploma of Hospitality cancelled in 2017

    i)Bachelor of Business cancelled in 2018

13. The Tribunal asked the applicant if he wished for some additional time to consider this material prior to having a discussion with the Tribunal. The applicant indicated that he was able to proceed with a discussion regarding these matters.

14. The Tribunal had a discussion with the applicant regarding his enrolment status between 8 July 2016 and 4 May 2017, which was the period of time that the delegate contended that the applicant was not enrolled to study a course here in Australia. The applicant stated that he was not enrolled during this period of time. The Tribunal after some further discussion with the applicant asked the applicant again to acknowledge whether he was enrolled during this period, the applicant acknowledged that this was the case that he was not enrolled during this time.

15. 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

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

17. 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’.

18. The Tribunal has considered any submissions provided to the Department and also the evidence taken at hearing and presented to the Tribunal.

19. On 13 April 2017 the applicant was sent a Notification Of Intention to Consider Cancellation (NOICC) of the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. According to the delegate’s decision record the applicant did not provide a response.

20. The Tribunal asked the applicant to confirm whether he had actually provided a response. The applicant acknowledged that he had not provided any response to the Department and had not contacted the Department to inform the Department of his enrolment status leading up to this period of time.

    ·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

21. The applicant arrived in Australia in June 2014 on a student visa with the intention to study. The applicant stated that he finished year 12 in 2013 and came to Australia in 2014 because “I wanted to learn things”.

22. The applicant stated that he originally wanted to study accounting and completed his Certificate IV in Accounting on 31 December 2014. In discussion with the Tribunal the applicant acknowledged that the only other study he has done here since that time was for a short period of time studying his Certificate III in Commercial Cookery. The applicant stated that he has not studied anything else since his arrival in 2014.

23. The applicant stated that he has a mother, father and sister back in his home country. He stated that his mother and father work in the agricultural industry and run a farm. He stated that he has only been back to his home country on one occasion, in 2015.

24. The applicant stated that he has a brother here in Australia who he used to live with. He stated that his brother is now married and has one child aged two years and lives in Griffith. He stated that his brother now has permanent residency.

25. The applicant stated that although he used to live with his brother he now rents in Mernda with friends. He stated that his brother and family are supporting him in paying rent and that he is not working or earning any income. When asked by the Tribunal as to what he is doing here in Australia at this point the applicant stated that he is not doing anything.

26. When asked by the Tribunal to provide evidence as to whether he has a compelling need to remain in Australia as a student the applicant stated that he would prefer to study in Australia as “the courses are more practical” than those offered back in his home country.

27. The applicant also stated that he wants to remain in Australia and study automotive. When asked by the Tribunal why he did not study automotive during his time here the applicant stated that he had some difficulty in getting an enrolment and then was unable to after his visa was cancelled. When asked by the Tribunal to outline the reason for his various enrolments, particularly in cooking and hospitality, the applicant stated that he took advice from his migration agent and that his migration agent told him to do cookery. When asked by the Tribunal why he did not continue with any of his accounting enrolments after his completed Certificate IV in Accounting the applicant could not give any reasons to the Tribunal as to why he did not continue his study towards greater accounting qualifications.

28. The applicant also stated that he had not been able to achieve great success with his study here in Australia because his grandmother, for a period of time, suffered from cancer and died in November 2014. He also stated that his father drank a lot and had liver problems but is now okay. The applicant provided a death certificate for his grandmother and also a medical certificate for his father that stated that he suffered from a kidney infection for three months in 2015. The Tribunal does not place weight on this evidence as demonstrating any need by the applicant to remain here in Australia on student visas.

29. The Tribunal finds that the applicant does not have a compelling need to remain here in Australia on student visas.

    ·the extent of compliance with visa conditions

30. The Tribunal has found that the applicant was in breach of his student visa conditions by not maintaining his enrolment in a registered course of study between 8 July 2016 and 4 May 2017. But there is no evidence to indicate the applicant has breached other conditions.

31. The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period.

32. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of this 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)

33. When asked by the Tribunal to provide evidence as to whether the applicant would suffer any hardship by not being able to remain in Australia as a student the applicant stated that “I would like to finish my qualifications over here so I can get good pay”. The applicant went on to state “I have an interest in automotive and I would like to do something in automotive”.

34. When asked by the Tribunal what he would do should he have to return home the applicant stated that he could work on the farm with his parents and also acknowledged to the Tribunal that he could study back in his home country and that automotive courses are available there.

35. The Tribunal has considered the evidence provided by the applicant and finds that the applicant would not suffer any hardship should he have to return home to India and not remain here as a student.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

36. In evidence to the Tribunal the applicant acknowledged that he was not enrolled during the period of time that the delegate contended that he was not enrolled.

37. The applicant stated that he was upset for a period of time when his grandmother died in November 2014. The Tribunal acknowledges that the applicant may have experienced some difficulties at that time but notes that the applicant was able to complete the one course that he actually finished here which was his Certificate IV in Accounting in December 2014. The applicant could then have returned home for a period of time, in fact the applicant did return home on one occasion since his arrival here, in 2015, and could have dealt with his family matters and then returned to Australia and pursued his academic career. Instead of that the applicant has remained in Australia since 2014, apart from his travel to India in 2015, and has in fact not studied anything successfully since December 2014. In evidence the applicant stated that he has not done any study since December 2014 until his visa was cancelled in May 2017 except for a very brief period of study in his commercial cookery certificate in 2015 which he did not complete and did not sit the exams.

38. The applicant also stated that his father has been drinking a lot over the last few years and suffering from some form of liver complaint. At the same time the applicant also stated that his father was better now. The Tribunal therefore cannot see this evidence as compelling evidence that should convince the Tribunal that the grounds to not cancel the visa outweigh the grounds to cancel the applicant’s visa.

39. The Tribunal finds that, taking this evidence into account, that there are no relevant circumstances in this case that could lead to a conclusion that the circumstances in which the ground for cancellation arose were not beyond the applicant’s control.

    ·past and present behaviour of the visa holder towards the department

40. 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.

    ·whether there would be consequential cancellations under s.140

41. There is no evidence of consequential cancellations under s140.

    ·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

42. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

43. It is unlikely however that the visa applicant will 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, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

44. There is nothing before the Tribunal to indicate any international obligations to consider.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

45. No such considerations are relevant in this case.

    ·any other relevant matters.

46. The applicant did not provide any other evidence to the Tribunal as to his performance as a student here in Australia other than, as stated, that the death of his grandmother affected him for a time back in November 2014 and also the illness of his father, also affected him for a period of time. The Tribunal acknowledges that the applicant may have experienced some emotional difficulties during this time which may have affected his enrolments however the applicant has now been in Australia since June 2014 and could provide no compelling need to remain here in Australia as a student to study automotive which he acknowledged that he could return home to India and actually study for such qualifications back at home. The applicant also stated that he could return home to his home country and work in his parents’ agricultural business. He did not provide any evidence as to a compelling need to remain here in Australia on student visas and did not outline any particular hardship that he would suffer by having to return home.

47. It is also noted by the Tribunal the applicant does have his brother here in Australia who is a permanent resident and is providing ongoing financial support to the applicant which may be an encouragement to the applicant to remain here whilst not working or not studying.

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

    DECISION

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

    Stephen Witts
    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.