Gill (Migration)

[2019] AATA 2820

Gill (Migration) [2019] AATA 2820 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Balkar Singh Gill

CASE NUMBER:  1719034

HOME AFFAIRS REFERENCE(S):           BCC2017/1911390

MEMBER:Joseph Lindsay

DATE:5 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 June 2019 at 5:16pm

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 – took a break on friend’s advice – no exceptional circumstances – 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 15 August 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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.

3. The applicant attended the hearing on 21 March 2019. The applicant was not represented. The applicant was comfortable to speak in English and he did not want an interpreter.

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.

   Did the applicant comply with condition 8202?

6. 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).

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

8. In his application for review, the applicant provided a copy of the decision record from the Department that found the applicant had not been enrolled in a registered course of study since 26 December 2016.

9. The Tribunal put these facts to the applicant, and the applicant agreed that he had not been enrolled in a registered course of study since 26 December 2016.

10. 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)(a). The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

12. The Tribunal spoke to the applicant about the circumstances in which the ground for cancellation arose, and why he stopped being enrolled in a registered course of study since 26 December 2016.

13. In response the applicant indicated his friends told him not to take things so seriously and he could take a break from his study.

14. The applicant indicated he did not approach the Department to seek their advice about how his decision to take a break from his study would impact on his student visa obligations.

15. The applicant indicated he made a mistake in taking his friend’s advice but indicated he took responsibility for his actions.

16. The applicant indicated his grandfather passed away in 2018. However the Tribunal indicated to the applicant that it would place low weight on his submission because the death of his grandfather happened approximately two years after he ceased to be enrolled in a course of study. The applicant freely indicated that his grandfather’s death had nothing to do with his decision to not remain enrolled in a course of study since 2016.

17. In balancing the above findings, the Tribunal places low weight in the applicant’s favour in respect to the circumstances in which the ground for cancellation arose, that is, where the applicant was not enrolled in a registered course of study since 26 December 2016.

    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

18. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

19. Based on the applicant’s evidence at the hearing, the Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

20. The Tribunal asked the applicant what hardship he would be faced with if the student Visa was cancelled.

21. In response, he indicated that he wants to finish his studies and go work with his father in his business.

22. The Tribunal put to the applicant that he did attain some qualifications in Australia including his certificate IV and the diploma but he did not complete the bachelor’s degree.

23. The Tribunal put to the applicant that it may put some weight on the fact that the applicant had attained qualifications so that if his student visa was cancelled he would at least return to his country of origin with some qualifications that he attained in Australia. In response the applicant said “yes member.”

24. In consideration of the above, the Tribunal finds that the applicant has attained qualifications so that if his student visa was cancelled he would at least return to his country of origin with some qualifications that he attained in Australia – a fact that would likely reduce any hardship the applicant may face if his student visa was cancelled and he returned to India.

25. In balancing the applicant’s concerns and the Tribunal’s findings above, the Tribunal gives low weight overall in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

26. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

27. The applicant has no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

28. The applicant indicated he was aware of the legal consequences of the cancellation of his student visa and he was aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

29. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to India.

30. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

31. The Tribunal places low weight on this information in the applicant’s favour.

    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

32. The Tribunal asked the applicant whether he had any fear in going back to India. The applicant indicated that he had not told his parents that he had not completed his study. He was concerned that his parents told him that he had to complete his study and then come back to help them.

33. In consideration of the above, the Tribunal finds that there would be no breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

34. When asked if there were any further relevant matters, the applicant said he had a complaint about Latrobe University because he claimed they did not inform him that his enrolment was cancelled.

35. The Tribunal put to the applicant that as a student he could go online to check his student enrolment details. The Tribunal put to the applicant that in relation to his course enrolment he was reasonably able to approach Latrobe University to clarify the details regarding his course enrolment. The Tribunal places low weight on this information in the applicant’s favour.

36. There are no other relevant matters before the Tribunal.

    Conclusion

37. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 10 February 2014.

38. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 26 December 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

39. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

41. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay

    
    

    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.