Gagandeep Singh (Migration)

[2020] AATA 3844

Gagandeep Singh (Migration) [2020] AATA 3844 (14 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagandeep Singh

CASE NUMBER:  1901347

HOME AFFAIRS REFERENCE(S):          BCC2018/4306645

MEMBER:Donna Petrovich

DATE:14 September 2020

PLACE OF DECISION:                              Melbourne

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

Statement made on 14 September 2020 at 12:06pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – cancellation – genuine student – not maintaining enrolment at same or higher level – enrolment in degree course discontinued – enrolments in lower-level courses in different subject area cancelled – period of non-enrolment – non-completion of any course – discretion to cancel visa – death of fiancée and mental health – no approach to education provider, department or health services – degree of hardship – 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 14 January 2019 made by a delegate of the Minister for Home Affairs 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 has not complied with condition 8202 and is not or not likely to be a genuine student, he remained un-enrolled between 30 January 2018 and 18 December 2018 a period of 11 months and had not completed any course since his grant of visa 3 November 2015. He was not, at the time of cancellation, studying a course of study commensurate with the visa he was granted and was pursuing a Vocational Educational and Training Sector Course, not a Higher Education Sector (subclass 573) course for which his visa was granted.  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 appeared before the Tribunal on 3 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

5. 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.

   Background

6. The applicant is a 24 year old single man from India, who arrived in Australia on 17 November 2015 and was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 3 November 2015. The applicant enrolled in a Bachelor of Information Technology at Charles Sturt University (CSU).  The Provider Registration and International Student Management System (Prisms) indicates that the applicant enrolment in Bachelor of Information Technology was discontinued on 28 October 2016, and the applicant has not maintained enrolment in a higher education course for which his visa was granted since that time.

7. The applicant then enrolled at Ozford College in Certificate iii and Certificate iv in Commercial Cookery.  He studied there for three months and told the Tribunal that he left because the staff were rude and treated him differently.

8. He then enrolled in IMT College to continue his study in Commercial Cookery and it was at this time that his fiancé was involved in a tragic accident and passed away.  He stopped attending as he said he was in depression, and his enrolment was cancelled due to lack of attendance.

9. The applicant then enrolled in Diploma of Hospitality at Aveta Australia Vocational Education and Training Academy on the 10 December 2018.  The applicant received a Notice to Consider Cancellation of Enrolment on 18 December 2018, and the applicant was provided with the opportunity to respond.  The applicant disputed the reasons for the cancellation and cited that he had lost his fiancé in India and was in a deep depression for a period of 12 months during which time his enrolment was cancelled.  

   Did the applicant comply with Condition 8202?

10. 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).

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

12. The applicant arrived in Australia on 17 November 2015 and was granted a Student (Temporary) (Class TU Higher Education Sector (Subclass 573) Visa.  The applicant enrolled in Bachelor of IT at Charles Sturt University (CSU), but was unable to successfully complete any subjects.

13. The applicant then enrolled at Ozford College to study Certificate iii and Certificate iv in Commercial Cookery as part of a Diploma of Hospitality, which he attended for a period of three months.  He told the Tribunal that he left because the staff treated him differently and that they were rude.

14. He then enrolled in Aveta Australia Vocational Education and Training Academy on 10 December 2018 and commenced study of a Diploma of Hospitality, undertaking a Certificate iii in Commercial Cookery, completing six months of the 12 month course before his visa was cancelled on 14 January 2019. 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

15. 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 Procedural Advice Manual ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia.

16. The applicant told the Tribunal that after finishing his studies in India, he came to Australia to Study a Bachelor of IT at Charles Sturt University (CSU), which he commenced but was unable to pass any subjects successfully, even though he told the Tribunal that he worked very hard.

17. He was working as a Kitchen hand and developed an interest in Hospitality and commences study at Aveta Australia Vocational Education and Training Academy, studying a Diploma of Hospitality. The applicant studied for 6 months of a 12 month Certificate iii in Commercial Cookery. The applicant has not successfully completed any subjects since his arrival in Australia on 17 November 2015 and has remained in Australia in breach of the conditions of his visa.

18. The Tribunal in considering this accepts that the applicant’s purpose and intention was initially to come to Australia to study in the Higher Education Sector, and whilst the applicant expressed a desire to resume study in Australia, thus far he has been unable to fulfill this intention;  and as a result he currently has no compelling reason to travel or remain in Australia. Accordingly, the Tribunal places little weight on the applicant’s statement that his purpose of travelling and staying in Australia was to study and therefore, no weight in the applicant’s favour of considering discretion not to cancel.

    The Extent of compliance with visa conditions

19. The applicant was not enrolled in any course from 18 December 2018 to 14 January 2018 a period of 11 months, which the Tribunal considers to be a substantial breach of the conditions of his visa.

20. The applicant also provided the Tribunal with access to PRISMS record information which indicated that the applicant has not maintained enrolment at the same or higher level of registered course for which the visa was granted and has breached condition 8515 of his Visa. The applicant was granted a student (Temporary) (class TU) Higher Education Sector (subclass 573) on the 3 November 2015 and had not maintained enrolment in a Higher level course since 28 October 2016. The applicant has not maintained his enrolment in a course appropriate to his visa and further has not maintained any enrolment for a period of over 11 months, in breach of his visa conditions.      

21. Rather the applicant has remained in Australia without having complied with conditions of his visa. As such the applicant’s non-compliance is significant and as such the Tribunal gives little weight favour of the applicant in considering these factors.

    The degree of hardship that may be caused to the Applicant

22. The applicant did not raise any specific matters of hardship in the hearing. The applicant stated that his parents were getting older and that he was their only son and that it would not be good for him to return home without any qualification that prepared him for work and that they would be disappointed.  The Tribunal does not accept that this is a form of hardship.  The applicant has been in Australia since 17 November 2015, during which time he has been unable to obtain a qualification in Information Technology for which his Higher Education Sector Visa was granted or a qualification at a Vocational level whilst studying a Diploma of Hospitality. Accordingly, the Tribunal places no weight in favour in this consideration in the applicant’s favour.

23. The applicant’s father works for the government, and sends him money to live, pay his rent and would pay for his course, until he had work rights returned and he would then get a job in hospitality as a kitchen hand and be able to pay for some of his living expenses himself.  He told the Tribunal that he is his family’s only son and that he is expected to return home to look after them as they get older.

24. In addition, the applicant claims he will be able to open a restaurant on his return to India if given a further opportunity to complete a Diploma in Hospitality over the next three years. The applicant at this stage has not completed any units in the Diploma of Hospitality and his previous work experience in Hospitality has not been extensive to date. The Tribunal places no weight on this consideration in favour of the applicant.    

25. The applicant told the Tribunal that he needed to have some qualification, and that if he was given another opportunity to study the he would be able to complete a Diploma of Hospitality over three years and be able to return home to India as a qualified chef and then he would be able to open his own restaurant.  He told the Tribunal that there were plenty of restaurants in India and that he would like to open an Italian or European style restaurant. Prior to the applicant’s visa being cancelled he had worked in the bakery at Woolworths, filling shelves and as a kitchen hand at McDonald’s.  The Tribunal accepts the applicant’s evidence of his desire to return to India and open an Italian restaurant and recognises that some hardship will be experienced by the applicant because of his lack of qualifications and work experience to date.

26. In any event while the Tribunal notes that some hardship will be caused to the applicant if his visa is cancelled, including not being able to complete a Diploma in Hospitality and being required to depart Australia, the Tribunal notes that he will be eligible to apply for a bridging visa which may allow him to remain in Australia so that he can finalise any outstanding matters.

27. However, the Tribunal notes that in the event that the applicant’s visa is cancelled under s.48 of the Act he may have limited options available to him if applying for a further visa in Australia. In addition, he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

28. Whilst the Tribunal accepts that if the applicant’s visa is cancelled he will suffer some hardship in having to return to India without having gained a qualification, it does not accept the applicant’s submission about the reason for him wanting to enrol in the Diploma of Hospitality course and opening a restaurant in India, as there was no evidence provided which supports these statements.  As such the Tribunal places little weight to the hardship the applicant says he will suffer as it is no different than others in a similar position.

    The Circumstances in which the grounds for cancellation arose

29. The applicant says he was not able to continue with his studies after he suffered from severe mental stress and depression and was grieving for his fiance’.

30. The applicant provided the Tribunal with a Statutory Declaration and a copy of a Death Certificate for Manpreet Kaur Singh who passed away at 23 years old on the 15 March 2017.  The applicant told the Tribunal that he had become depressed for a period of 12 months after his fiance’ had died and he was upset that she was in a coma for 15 days and that he had been trying to call her.  Neither her family or his own told him she was in a coma after suffering an accident, and that she had been deceased for one month before he was notified of her passing.

31. It is understandable that the applicant would be distressed under these circumstances and would need support.  When asked if he had spoken to his Education provider or the Department, or any health care provider, counsellor or psychiatrist, he told the Tribunal that he did not. This is unfortunate as he may have been able to defer his studies at this time and gain some treatment and counselling or other assistance. As a result, there is no evidence to support the applicant’s statements and therefore the Tribunal is unable to place any weight in the applicant’s favour in this regard. 

32. The applicant told the Tribunal that he had gone into a depression as the result of his fiance’ dying, and that he was unable to do anything for 12 months, until he received an email from the Department telling him that his visa was about to cancelled.  He told the Tribunal that this had prompted him to become enrolled again in the Diploma of Hospitality. In considering the timeframe since the applicant commenced study and his resumption of study with an enrolment on 10 December 2018, this coincides with Notification by the Department of the potential cancellation of his visa.

33. The Tribunal, in considering the circumstances around the cancellation, places some weight in favour of the applicant in relation to the passing of his fiancé  being  beyond his control; it does not accept, however, that he was unable to notify the Department of his circumstances or his education provider, who may have considered a deferral of his course. The Tribunal, on balance, whilst sympathetic gives no weight in favour of the applicant in this regard.

    Past and Present behaviour of the visa holder towards the department 

34. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140.

35. The applicant did not make any claim to the Tribunal relating to any person in Australia whose vis would, or may be, cancelled under s.140 of the Migration Act 1958 (“the Act”). According to the Departments records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

36. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

    Any breach of International obligations Australia may have as a result of the applicant’s visa being cancelled.

37. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

38. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

39. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Donna Petrovich
    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.