GAGANDEEP SINGH (Migration)

[2020] AATA 1569

GAGANDEEP SINGH (Migration) [2020] AATA 1569 (27 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  GAGANDEEP SINGH

CASE NUMBER:  1929644

HOME AFFAIRS REFERENCE(S):          BCC2019/3200378

MEMBER:Amanda Upton

DATE:27 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 April 2020 at 4:46pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower level than visa requirement – enrolment in original course cancelled after failure to enrol for new semester – enrolment in lower-level course in different subject area – discretion to cancel visa – significant period of non-compliance – evasive answers to questions in hearing – intention to study original course – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 October 2019 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with Condition 8202 of his visa in that he had not maintained enrolment in a registered course at the same level or higher than, the registered course in relation to which the 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 18 December 2019 to give evidence and present arguments.

4. 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 full time registered course: 8202(2)(a)

   ·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).

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

9. The applicant was granted a Subclass 500 (Student) visa for the purpose of studying  a Bachelor of Business to commence on 7 May 2018. On 19 February 2019, the applicant’s enrolment in this course was cancelled. The applicant provided the reason for this to the Tribunal as being that the college had cancelled his enrolment as he had failed to enrol after completing two semesters of study.

   
   
   

10. The applicant then on 9 May 2019 enrolled in a Certificate III in Light Motor Vehicle Technology. This course is not at the level for which the applicant was granted his visa.

11. The applicant conceded to the Tribunal that he had been in breach of his visa since February 2019 by not maintaining enrolment in a course at the required level.

12. On the evidence before the Tribunal, the applicant was enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa  

13. 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 Instruction ‘General visa cancellation powers’.

14. The Tribunal notes that during the hearing it was difficult to get the applicant to answer questions, he provided very little information  in response and appeared evasive.

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

1. The applicant’s visa was cancelled on 14 October 2019 as he was not enrolled in a registered course at or above the level for which his visa was granted. The applicant’s enrolment in his Bachelor of Business course was cancelled after the applicant failed to re-enrol after two semesters of study. He told the Tribunal that he did not re-enrol as he changed his mind as to which course he wanted to study.

2. The applicant subsequently obtained an enrolment in a Certificate III in Light Motor Vehicle Technology. He told the Tribunal that he had changed his mind about what he wished to study after he started taking his car to a mechanic in 2018. He told the Tribunal that he considered there to be more scope in automotive than in business in his home country. The Tribunal found the reason that the applicant gave for his course change to be unconvincing.

3. The Tribunal considers that the circumstances under which the cancellation arose were not beyond the applicant’s control. The applicant could have taken steps to enable him to study a course at the level for which he was enrolled and apparently desired to do, he did not. The Tribunal expects that visa holders understand and comply with the conditions of their visa including ensuring that the course in which they are enrolled is at the level required by the visa.

4. The applicant again now wishes to study the Bachelor of Business, informing the Tribunal that he no longer wishes to be a mechanic as it is not at the level required by the visa. The Tribunal considers that the applicant’s change of mind again with respect to the course that he wishes to study and the reason for it to be indicative of the fact that the initial reason for changing course in the first place was not genuine.

5. Considering these circumstances, the Tribunal gives this factor significant weight in favour of cancelling the visa.

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

1. The applicant came to Australia for the purpose of study and told the Tribunal that he has no reason to remain in Australia other than for the purpose of studying. The Tribunal gives this factor minimal weight in favour of not cancelling the visa.

The extent of compliance with visa conditions

1. The applicant has been in breach of his visa condition since February 2019 and concedes that this is the case. The applicant was enrolled in a course for a period of time after February 2019 as he participated in the Diploma Course until October 2019, however this course was not at the level required.

2. The Tribunal considers this to be a significant period of time of non-compliance and in consideration of the circumstances under which the cancellation arose, as such gives this factor significant weight in favour of cancelling the visa.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. Despite being asked a number of times the applicant gave the Tribunal very little information relating to any hardship that he may suffer if the visa was to be cancelled. He indicated that he did not want to go back to India and wished to complete his studies in Australia.

2. The applicant indicated that he would not suffer financial hardship. The Tribunal considers, however that a cancellation of a visa generally may result in opportunities lost and disappointment and potentially some financial loss. However, it is expected that there will be consequences to a cancellation and these are the logical consequences of such. The Tribunal does not afford this factor any weight in the applicant’s favour.

Past and present behaviour of the visa holder towards the department

1. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

1. There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

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

1. If the visa is cancelled, the applicant will become a non-lawful citizen and his ability to apply for other visas would be limited. Whilst unlikely in this instance, he could be detained until he made arrangements to leave the country.

2. The applicant would also be section 48 barred and may not meet the requirement for certain visas for three years.

3. The Tribunal sees these as natural consequences of the cancellation of a visa. The applicant retains his passport and is able to return to India. The applicant raised no reason that he would be unable to return to India and informed the Tribunal that he would do so if his visa was cancelled.

4. The Tribunal gives this factor minimal weight in favour of the applicant.

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.

1. The applicant has provided no reasons for being unable to return to India as such the Tribunal affords this factor no weight.

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

   DECISION

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

   Amanda Upton
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(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.