Dalbir Singh (Migration) - [2022] AATA 4764

Dalbir Singh (Migration) [2022] AATA 4764 (12 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dalbir Singh Dalbir Singh
REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)
CASE NUMBER:  2202971
HOME AFFAIRS REFERENCE(S):          BCC2020/1456790
MEMBER:Christine Kannis
DATE:12 December 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 12 December 2022 at 12:20pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – Provider Registration and International Students Management System (PRISMS) – consideration of discretion – purpose of visa – length of non-enrolment – circumstances giving rise to non-compliance – stress – education provider’s non-continuation of course – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 February 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams Video on 22 November 2022 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
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 (Cth) (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?
On 21 August 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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 full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dalbir Singh (Migration)

Details

AGLC: Dalbir Singh (Migration) [2022] AATA 4764
Case: [2022] AATA 4764
Decision Date: 12 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Dalbir Singh concerning the cancellation of his Subclass 500 (Student) visa. The dispute arose from the Department of Home Affairs' decision to cancel Mr. Singh's visa on the grounds that he had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course.

The Tribunal was required to determine whether Mr. Singh had indeed breached condition 8202(2)(a) of his visa, which mandates that a student visa holder must be enrolled in a full-time registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the evidence from the Provider Registration and International Students Management System (PRISMS) indicated that Mr. Singh was not enrolled in a registered course from 8 September 2020 to 16 November 2021, thereby breaching condition 8202(2)(a). In considering the exercise of discretion, the Tribunal acknowledged Mr. Singh's explanation regarding the unexpected discontinuation of his course by his education provider due to COVID-19 related issues and the subsequent stress and difficulties he experienced in finding a new suitable course. However, on balance, and after considering all the circumstances, the Tribunal concluded that the visa cancellation should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 (Cth) (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? On 21 August 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached. 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 full-time registered course: 8202(2)(a)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant was not enrolled in a registered course of study from 8 September 2020 until 16 November 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 8 September 2020 to 16 November 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and 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 Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

For these reasons, 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 to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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’, as set out below. On 22 December 2021, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. Response to NOICC On 25 December 2021, the applicant responded to the NOICC and advised that:I came to Australia in 2019 on tourist visa and applied for the student visa since the date of application, I studied in the field of my interest and in September 2020, our college, without any prior notice told us that they will not be continuing the course as they do not have the workshop to train the students and the course is no longer active. No prior notice or warning was provided by the college. They simply kicked all the students out and told us to re-enrol in any other course within the college. Keeping in mind my field of interest, I denied their offer to take admission into another course within the college and started looking for other colleges that provide automotive course and have their own work shop.It was the peak of COVID in Australia and everything was under the lockdown. I was very stressed and started regretting and blaming myself for denying the college’s offer to take the offer to take admission into another random course. During all this time, I was unable to get proper guidance from anyone. Many colleges told me that they are unable to enrol me midway of the course and cannot provide me with the placements as all the colleges are attending the online classes and cannot offer any workshop trainings to the students. This gave me lots of stress and don’t even recall few months of my life due to this stress. I didn’t even talk to my family and due distance within the communication, my family contacted my sister in South Australia and she contacted me and told me to come to South Australia and live with her.I got the financial and emotional support from her and she helped me to get over thetrauma my college caused me. She helped me in contacting the college to get my transcript which to this date my college did not provide me with despite of paying the fee and submitting the competent assessments. My teachers were also not really happy with the college and always talk about how they treat the students. I also contacted the colleges in Adelaide which denied my request to provide me with the credits to the course that I completed before in my previous college so I took an advice from a migration agent who told me that I am in breach of my student visa condition and need to get admission into the course I am interested in and my visa can get cancelled. I told him that I always had an intention to study in Automotive course and explained the whole scenario and he told me that some colleges do this to their students but Australian government have another way to help the students to get most out of their studies and told me about the USI account. He helped me to get my transcript from the USI account and told me few colleges who can provide me with the credits to the course and also have good reputation.Later meeting him, I researched about the colleges and decided to go with DurbanInternational college. Durban have good reputation in Adelaide. They provided me with credits and face to face classes that I was looking for. I am intended to finish my course sooner than intended to COE and start another one. I got my COE before the letter to intention to cancel the visa was sent to me which itself proves that I have a strong urge to study but the circumstances such as my college’ course depletion, my mental health and COVID 19 Pandemic lead me to this stage. I never had intention to get my COE cancelled. My COE was not cancelled due to attendance, non-fee payment or in-sufficient Course progress but due to my course provider incompetency to deliver the course to the students.I know I have breached my condition by not studying in the course for some time but as soon as I got aware of this, I got myself enrolled into the course and studying withsatisfactory course progress. If my visa gets cancelled, I will face a huge financial loss as I have invested lots of my parent’s money and my time which I can never retrieve back. Also, my sister and her family in Australia who helped me and spend so much time, money and effort to recover me from this situation will be shattered as I will be going back in the worst situation. I hope you understand that the circumstances were very much beyond my control and the huge part was played by my previous college and I should be given a second chance to resolve my mistakes I have done in my past to brighten my future. I feel this would be a huge privilege to get an Australian qualification and to work as a motor mechanic with skills that’s been sharpen in Australian settings during my placements. I want to state that I have not breached the condition as I have valid COE.