Dhillon (Migration)

[2019] AATA 2906

Dhillon (Migration) [2019] AATA 2906 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hardeep Singh Dhillon

CASE NUMBER:  1715071

HOME AFFAIRS REFERENCE(S):           BCC2017/1406051

MEMBER:Stephen Conwell

DATE:19 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 February 2019 at 10:17am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased studies – no deferment of studies sought – applicant maintained employment – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 July 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 was found to have breached condition 8202(2) - enrolment. 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 sought review of the delegate’s decision at the Tribunal and attached a copy of the delegate’s decision with his application.

4. The applicant appeared before the Tribunal on 18 February 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his 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. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 11 September 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 29 May 2017, the applicant was advised that based on information available in the Provider Registration and International Student Management System (PRISMS), it appeared that he had not been enrolled in a registered course of study since 5 September 2016. Further, that it therefore appeared the applicant did not meet the requirements of condition 8202(2)(a) and that his Student visa may be cancelled pursuant to s.116(1)(b) of the Act.

10. In the applicant’s response to the NOICC, he submitted a (then current) letter from Acknowledge Education, dated 16 June 2017 confirming his enrolment as a full-time student and also a copy of a Confirmation of Enrolment (COE) in a Bachelor of Business course commencing on 24 July 2017. However the non-compliance with condition 8202(2) was not disputed.

11. Other evidence submitted to the Tribunal included a new COE created on 15 February 2019 (3 days before the hearing date) for enrolment in an Advanced Diploma of Hospitality Management; evidence of the applicant’s father’s employment  and salary at Budhewal Co-Op Sugar Mills Ltd; an undated affidavit sworn by the applicant’s father which declares his financial sponsorship of the applicant’s study and stay in Australia; a financial sponsorship declaration by a Ms Ramandeep Kaur also in support the applicant’s study and stay in Australia; evidence of Ramandeep Kaur’s Victorian Driver Licence and Commonwealth Bank account.

12. At the Tribunal hearing, the applicant did not dispute his non-enrolment from 5 September 2016 until 16 June 2016, a period of some nine months. The Tribunal is therefore satisfied that non-compliance with condition 8202(2) occurred.

13. 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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

15. The applicant applied for his first 572 Student visa on 20 December 2008, which was granted on 11 February 2009. He first arrived in Australia on 18 February 2009. He was granted another two 572 student visas in September 2011 and April 2014, and was then granted a 573 student visa in September 2015.

16. The decision record notes that since his arrival in Australia on 18 February 2009, the applicant has only departed Australia once, for some three weeks, between 11 May 2013 and 15 June 2013. At the Tribunal hearing, the applicant confirmed that this remains his only departure from Australia since his first arrival.

17. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant was not been enrolled in a registered course of study between 5 September 2016 until 16 June 2016.As mentioned in the decision record, the applicant had only re-enrolled in study, after receipt of the NOICC on 29 May 2017.  As a consequence the delegate gave this re-enrolment no weight in the applicant’s favour.

18. This is an indication the applicant was not pursuing the purpose for his travel to Australia; as he was not actively engaged in studies for that period.  At the time of the delegate’s decision this period of non-enrolment exceeded nine months. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

19. Regarding the circumstances in which the ground for cancellation arose, such circumstances occurred when the applicant failed to maintain enrolment in a registered course of study. At hearing, the applicant repeated his claims in his submission to the Department dated 13 June 2017, that non-enrolment came about through ignorance of his visa obligations, poor immigration advice and generally through circumstances beyond his control.

20. The applicant further explained that at the time of his non-enrolment his family were ‘forcing’ him to marry a girl not of his choosing. As a result, the applicant was stressed and generally not coping with the demands of studying overseas. However the applicant confirmed at hearing that prior to the 10 July 2017 decision to cancel his visa, he had worked as a kitchen hand for a catering company (Damn Fine Food) for three years from 2013-2016. During the period of his non-enrolment, he worked on a casual basis with a cleaning contractor for approximately a year.

21. The Tribunal gives weight in favour of cancelling the visa to the fact that the applicant continued to work whilst claiming to be too stressed and distracted to remain enrolled in a course of study. The applicant tendered no evidence that he had contacted his educational provider or the Department to discuss his personal circumstances and challenges at that time or that he had sought a deferment of his studies in light of his circumstances.

22. At hearing the applicant gave evidence that:

    ·    His purpose in coming to Australia was to study.

    ·    He had been working as a kitchen hand at a catering company (Damn Fine Foods) for approximately three years, from 2013-2016. Since cancellation of his visa he has not worked and was dependent upon his parents to support him financially.

    ·    He continues to live onshore in share accommodation with friends.

    ·    Prior to cancellation of his visa, he completed Certificates III and IV in Commercial Cookery, an Advanced Diploma of Marketing and an Advanced Diploma of Business Management.

    ·    During the period of his non-enrolment, he worked on a casual basis with a cleaning contractor for approximately a year.

    ·    His parents no longer insist that he marry against his own wishes. He has a girlfriend here in Australia whom he has been in a relationship with for the past three years. She is an Indian national who is also in Australia on a Student visa.

    ·    He requests that his visa not be cancelled and that he be allowed to complete his current enrolment.

23. The Tribunal considers it to be that it is the responsibility of a holder of a Student visa to continue to satisfy all visa criteria during the term of the visa. Based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

24. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, at hearing the applicant explained he had come to Australia to study and that he would face discrimination and ‘be treated differently’ upon his return to India should his visa be cancelled. He wishes to study to improve his career prospects in India. The Tribunal accepts that the applicant and his family would be disappointed by cancellation of the applicant’s visa, however the applicant confirmed at hearing that prior to his visa cancellation, he had already completed an Advanced Diploma of Marketing and an Advanced Diploma of Business Management.  The Tribunal does not consider the applicant’s study history to be a failure and it is not persuaded that the applicant would face discrimination or scorn in his home country simply because of cancellation of his overseas visa.

25. The Tribunal notes there is no evidence that any family member/s in Australia would be adversely impacted by the cancellation of the applicant’s visa. 

26. The Tribunal has no evidence the applicant has been un-cooperative with either the Department or the Tribunal.

27. Regarding whether there are persons in Australia whose visa/s would or may be cancelled if the applicant’s visa is cancelled, based on the evidence before the Tribunal there are no persons in Australia whose visas would or may be cancelled if the applicant’s visa is cancelled. However The Tribunal accepts that if the applicant’s visa is cancelled, he may be separated (at least temporarily) from his girlfriend who is studying in Australia.

28. Regarding any legal consequences that may arise from the cancellation of the applicant’s Student visa, the Tribunal accepts the applicant or his family may be subject to some financial hardship. If his visa is cancelled he may also then become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before it, the Tribunal is not satisfied the applicant will be subject to indefinite detention. The Tribunal is also satisfied he could again apply for a Bridging visa in Australia (should that be necessary) and be entitled to remain in the community to organise his affairs prior to departing.

29. Further, if the applicant’s visa is cancelled he would be subject to s.48 of the Act, meaning he would have limited options for applying for further visas in Australia and may be required to return to India. He would also be subject to Public Interest Criterion 4013, meaning he may have to wait a three-year exclusion period. However the Tribunal understands these are some of the intended consequences imposed by parliament, and in this case they do not prevent the Tribunal from affirming the decision under review.

30. Regarding Australia’s international obligations, the Tribunal is not persuaded that the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

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

    DECISION

32. 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.