Gill (Migration)

[2019] AATA 1619

Gill (Migration) [2019] AATA 1619 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akashdeep Gill

CASE NUMBER:  1704334

HOME AFFAIRS REFERENCE(S):           BCC2017/321929

MEMBER:Joseph Lindsay

DATE:16 January 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 16 January 2019 at 10:24am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – had not completed any higher education courses in six years – hospitality studies – personal issues – no exceptional circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 February 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 appeared before the Tribunal on 19 December 2018 to give evidence and present arguments. The applicant was represented by a registered migration agent at the Tribunal hearing.

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 the hearing, the applicant admitted that he had not remained in a registered course of study since 15 October 2016 and in doing so he had breached condition 8202(2)(a). 

9. 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).

   Consideration of the discretion to cancel the visa

10. 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

11. When asked why he wanted a study visa, the applicant claimed he was keen to study.  The applicant indicated that he got a student visa in October 2012. The Tribunal asked the applicant what higher education courses had he completed in the over six years he had been in Australia, he indicated that he completed no higher education courses.

12. The Tribunal asked the applicant how his response could convince the Tribunal that the applicant was keen to study higher education. In response, the applicant said ‘doing the higher study is not the solution you can make the decision on that.’

13. The Tribunal put to the applicant that the 573 visa is a higher education sector visa. The Tribunal asked the applicant how his failure to complete any higher education sector courses in the time he had his visa, a long period of time, would convince the Tribunal that the applicant would enrol in, study and complete a higher education sector course.

14. In response, the applicant indicated that he was ‘in a really complicated situation of choosing what to do’ in ‘his area’ and that there was family pressure as well because his family wanted him to study something he didn’t like. He indicated he wanted to study economics and finance and in that period of time he was thinking about doing a hospitality higher education course or doing a Bachelor of Finance and Economics, but that doing the short courses helped him think about what he had to do.

15. The Tribunal asked the applicant whether he had enrolled in, and maintained his enrolment in, any higher education course in Finance and Economics or Hospitality. In response he said ‘no.’

16. The Tribunal asked the applicant how his circumstances could convince the Tribunal that he was keen to study and to enrol in, and maintain his enrolment in, and complete a course in higher sector education. The Tribunal asked the applicant whether he had any hard evidence supporting his stated desire to study (i.e. to study Finance and Economics, and study Hospitality at the higher education sector level).

17. In response, the applicant indicated that he had no evidence but that he still had the desire.

18. The Tribunal put to the applicant that the Tribunal may place low weight on his evidence of his desire to study (i.e. his desire to study Finance and Economics, and study Hospitality at the higher education sector level). In response, the applicant said ‘that’s fine.’

19. The Tribunal asked the applicant why he stopped his enrolment. He responded that he was ‘doing the English thing’ at the time, and he didn’t have much money to enrol in courses at that time.

20. The Tribunal put to the applicant that part of his obligation was that he made a financial commitment to be able to afford the cost of his studies. In response the applicant indicated that his agent gave him some advice and that he had decided to do the English test and then after the 2016-2017 Christmas break he would enrol.

21. The Tribunal asked the applicant how long he had on his student visa to complete his higher education, to which he responded ‘five years’. The applicant indicated his student visa had been due to expire in 2017.

22. The Tribunal put to the applicant that he was probably not ever going to complete any higher education course by 2017, to which he said ‘I agree with that.’

23. The Tribunal asked the applicant about his student history. He indicated that in 2012 he enrolled in ‘foundation studies’ in mechanical engineering but he found that he did not understand anything at all about engineering. The applicant indicated he then changed to the Bachelor of Hospitality and Certificate III in Hospitality. The applicant indicated that around this time his house got robbed and he went through a traumatic time. The Tribunal accepts that the applicant went through a traumatic time as a result of his house getting robbed.

24. The applicant indicated he then went back to his studies in hospitality and achieved good results.

25. The applicant indicated he finished his Certificate III in Hospitality and Certificate IV in Hospitality. The applicant indicated he then enrolled in and finished a Diploma in Hospitality, and then finished an Advanced Diploma in Hospitality in 2017. The applicant indicated he then started doing an English course.

26. The applicant indicated he then got the notice from the Department of intention to cancel his visa in 2017, to which he responded. The Tribunal put to the applicant that he had ceased his student enrolment in October 2016, to which he said ‘yep correct.’

27. The Tribunal put to the applicant that the information in the applicant’s Provider Registration and International Student Management System (PRISMS) record was consistent with his study history as he had told the Tribunal, and that the Tribunal did not consider any of the information in the PRISMS record to be adverse to the applicant. The Tribunal confirmed that the applicant’s PRISMS record confirmed that he had not been enrolled in any registered course of study since 15 October 2016. The applicant indicated that he accepted those facts.

28. The Tribunal asked the applicant why he did not remain enrolled. In response, the applicant indicated he had a lack of knowledge and a lack of advice, and that his personal circumstances in 2016 led him to not knowing what to study. By way of explanation, the applicant indicated that not everyone knows what they want to do in their life, and he did not know what he wanted to do with his life.

29. The Tribunal put to the applicant that the issue of knowing what he wanted to do with his life and the need for him to comply with his visa obligations are two separate matters. The Tribunal put to the applicant that it was reasonable that any visa holder is required to comply with their visa obligations, and in the applicant’s case to remain enrolled in a registered course of study. In response, the applicant indicated to the Tribunal that it was reasonable for him to allow his enrolment to lapse because he did not know what he wanted to do with his life.

30. In consideration of the above, the Tribunal does not accept that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are exceptional circumstances.  The Tribunal is not convinced by the applicant’s submissions that he had a lack of knowledge or a lack of advice, or that his personal circumstances caused him not to be enrolled in a registered course of study. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    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

31. 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

32. 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)

33. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship primarily because it would affect him physically, mentally and socially. He indicated he would be embarrassed. He indicated he faced hardship after the Department cancelled his visa and he had no work rights.

34. The Tribunal accepts that the applicant may experience some hardship as he has described. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

35. 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

36. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were 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

37. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

38. The applicant indicated he had got married in January 2018 and he had applied for a partner visa. The Tribunal put to the applicant that the cancellation of his student visa may impact on his ability to be sponsored (for the partner visa application). In response the applicant indicated he was aware of this potential impact on him.

39. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

40. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. 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.

41. 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.

42. 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

43. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

44. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated that he had been through a lot and when the Department made their decision they probably were not aware of how their decision would affect him. 

45. In consideration of the above, the Tribunal does not accept the applicant’s submission that the Department were not aware of how their cancellation decision would affect the applicant. The Tribunal finds that the Department’s decision clearly articulates the matters it considered, including the potential impact of the Department’s decision on the applicant. Accordingly, the Tribunal places no weight on the applicant’s submissions in this respect.

46. The Tribunal notes that the applicant provided a copy of a Victorian marriage certificate indicating that he married Michelle Nicole Bedford on 19 January 2018. The Tribunal notes that the applicant also provided an undated letter from Ms Jeanette Shepherd, a counsellor, from ‘Focus Ability’ in respect to the applicant’s wife, Ms Michelle Gill.  The letter from Ms Shepherd indicates that Ms Gill has a number of health issues, including anxiety as a result of the immigration process that the applicant had gone through in regard to his desire to be granted permanent residency in Australia. 

47. In respect to Ms Gill’s health issues, the applicant indicated that his wife’s health issues were largely resolved due to the fact that he had applied for a partner visa. The Tribunal places low weight on this information in the applicant’s favour.

    Conclusion

48. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 8 October 2012, now over six years ago, the applicant has not completed any higher education courses.

49. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 15 October 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

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

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

    DECISION

52. 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.