Gill (Migration)

[2018] AATA 5395

Gill (Migration) [2018] AATA 5395 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspreet Singh Gill

CASE NUMBER:  1700520

HOME AFFAIRS REFERENCE(S):           BCC2016/2956946

MEMBER:Joseph Lindsay

DATE:12 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa.

Statement made on 12 November 2018 at 12:53pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Higher Education Sector –Subclass 573 – university administrative error – reasonable steps to ensure ongoing enrolment not taken – not genuine student – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 December 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not a genuine student in accordance with the Act. 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 11 September 2018 to give evidence and present arguments. The applicant has an agent but the agent did not attend the hearing. There were no other witnesses.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(fa)(i) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

8. The Tribunal has considered the information provided by the applicant in regard to the information he provided to the Department, as well as the oral evidence and documentary evidence he provided to the Tribunal. The Tribunal has also considered the information provided by the applicant’s previous course provider. Based on this information, the Tribunal makes the following findings.

9. On 13 March 2014, the applicant was granted a Subclass 573 Higher Education Sector visa and arrived in Australia on 25 March 2014. He was granted the visa on the basis of undertaking a Certificate IV in Frontline Management, a Diploma of Business and a Bachelor of Business. However, he did not complete either the Diploma of Business or the Bachelor of Business. He completed a Certificate IV in Frontline Management in 2014 and a Diploma of Management in 2015. Since 2015 the applicant has not completed any courses of study at all, let alone any higher education courses, noting that the applicant’s visa was granted on the basis of him completing a higher education course.

10. The applicant’s explanation as to why he did not complete a Bachelor of Business or any higher education courses at all was lengthy and convoluted. In summary, however, the applicant argued there had been an administrative error on the part of his course provider and, for that reason, he did not commence his Bachelor of Business course in 2015. The administrative error appears to have occurred as a result of the course provider erroneously confusing the applicant’s enrolment information with that of another student. The applicant and the other student are both from India with similar names but with different dates of birth.   Both the applicant and the other student appear to have used the same agent in India to arrange their enrolment with the same course provider. Both the applicant and the other student enrolled in similar courses in similar timeframes. Whilst the Tribunal initially questioned the likelihood of such an administrative error occurring, given the course provider is a reputable Australian university, the Tribunal subsequently obtained information from the course provider that supported the applicant’s claims in relation to the administrative error. The Tribunal has been left in absolutely no doubt that the administrative error did in fact  occur and that this error has had at least some impact on the applicant insofar as his actions in not commencing his Bachelor of Business in 2015.

11. However, the applicant made no approaches to the Department to advise them of this situation, even though he knew that this situation could adversely impact upon his visa.

12. On 17 August 2015, the course provider cancelled the applicant’s enrolment due to him not commencing his studies. The Tribunal notes that the evidence supports the applicant’s claims as to why he did not commence his studies in the Bachelor of Business course in 2015 as being due to an administrative error on the part of the course provider, as indicated above. Up to this point in time, the Tribunal accepts that the applicant’s actions as being those of a ‘genuine student’ are perfectly reasonable and legitimate. However, it is from this point in time onwards that the Tribunal has concerns in relation to the applicant’s actions in regard to his commitment to gaining a higher education qualification in keeping with, and as required by, his higher education visa.

13. Despite the administrative error, the applicant chose not to ever commence his Bachelor of Business with his initial course provider. He voluntarily withdrew from his studies with his initial course provider. The applicant decided he wanted a career in hospitality and, accordingly, in late 2016 enrolled with another course provider in Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality and Bachelor of Business. The applicant never completed any of these courses. Between 17 August 2015 and 21 November 2016, some 15 months, the applicant was not enrolled in any course at all, let alone a higher education course. Again, the applicant made no approaches to the Department to advise them of this situation, even though he knew that this situation could adversely impact upon his visa. The applicant indicated that during this time he played cricket, which is a commendable activity but, regretfully, is not the activity that the applicant’s visa requires him to do, and that is to be enrolled in a higher education course.

14. The Tribunal accepts that the applicant had enrolled in the Bachelor of Business at another course provider that was scheduled to commence on 18 March 2019. This was approximately one year after his student visa ceased on 15 March 2018 – a fact that gives very little weight to the applicant’s assertion that he is a genuine student who took all reasonable steps to enrol in and complete a higher education course within the requirements and timeframes of his student visa.

15. The Tribunal accepts that the applicant was granted his student visa for the purpose of studying towards and completing a higher education qualification in Australia. The Tribunal accepts that a genuine student would take reasonable steps to ensure their ongoing enrolment in a higher education course. The Tribunal does not accept that the applicant’s actions in withdrawing from his higher education course, allowing over one year to pass by, and then enrol with another course provider in courses that are not higher education courses, and then enrolling in a higher education course that commences one year after his higher education visa expires, and at no time advising the Department of his circumstances, demonstrate that he acted in keeping with his visa requirements or that he is a genuine student for the purposes of the Act.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. 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 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. In response to this issue at the hearing, the applicant indicated his main purpose in travelling to Australia was to study, and then go back to India. He indicated that if he did not get a higher education degree in Australia, it would be harder for him to get a government loan and take care of his family on his return to India. He claimed he always came to study in Australia.

19. 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 little weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

20. During the hearing, the applicant made admissions that he had not complied with his visa conditions. The applicant acknowledged that there was a period of time in which he had not remained enrolled in a registered course of study – as required by condition 8202.

21. Accordingly, the Tribunal gives little weight in the applicant’s favour in regard to this factor.

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

22. In response to this issue at the hearing, the applicant indicated that he had faced bad family circumstances, where his relatives said that the applicant wasted his family’s money. He claimed that he just wanted to prove he was a genuine person and a good son.

23. In consideration of the applicant’s response, the Tribunal accepts that the applicant completed a Certificate IV in Frontline Management in 2014 and a Diploma of Management in 2015. He therefore holds Australian educational qualifications.

24. The Tribunal accepts that the applicant may suffer some emotional hardship if his visa is cancelled and the Tribunal gives this some weight. However, given his already acquired Australian educational qualifications, the Tribunal does not accept that the applicant would suffer financial hardship or any other hardship if his visa was cancelled.

25. Accordingly, the Tribunal gives little weight in the applicant’s favour in regard to this factor.

    The circumstances in which the ground for cancellation arose

26. Much of the hearing was concerned with the circumstances in which the grounds for cancellation arose. As indicated above, the Tribunal accepts that an administrative error on the part of his initial course provider was a factor in regard to the reasons why the applicant did not commence his Bachelor of Business in 2015 and why the applicant’s course enrolment was cancelled on 17 August 2015. However, it is the applicant’s actions after that point in time that remain a concern for the Tribunal, where the applicant chose not to ever commence his Bachelor of Business with his initial course provider, voluntarily withdrew from his studies with his initial course provider, decided he wanted a career in hospitality and then in late 2016 enrolled with another course provider in a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality and Bachelor of Business. The applicant never completed any of these courses. Between 17 August 2015 and 21 November 2016, some 15 months, the applicant was not enrolled in any course at all, let alone a higher education course. Again, the applicant made no approaches to the Department to advise them of this situation, even though he knew that this situation could adversely impact upon his visa. The applicant indicated that during this time he played cricket, which is a commendable activity but, regretfully, is not the activity that the applicant’s visa requires him to do, and that is to be enrolled in a higher education course.

27. The applicant indicated that other relevant circumstances that led to his visa being cancelled were the death of his grandmother, his mother being in hospital with a thyroid condition and his dad having died when he was a young child. The applicant claimed he suffered depression and anxiety as a result.

28. The Tribunal notes the death certificate for the applicant’s grandmother and accepts that the applicant’s grandmother died on 5 March 2016. It is, however, noted that the applicant’s grandmother died nearly six months after the cessation of his enrolment with his initial course provider on 17 August 2015. The applicant did not return to India for his grandmother’s funeral. Accordingly, the Tribunal gives little weight in the applicant’s favour in regard to this information.

29. The Tribunal notes the handwritten letter from Dr Seemant Garg dated 15 November 2016 about the applicant’s mother. The Tribunal accepts that the applicant’s mother had a health condition and, from March 2016 to November 2016, had received treatment for her health condition. It is, however, noted that the applicant’s mother started treatment nearly six months after the cessation of his enrolment and studies with his initial course provider on 17 August 2015. The applicant did not return to India to visit his mother. Accordingly, the Tribunal gives little weight in the applicant’s favour in regard to this information.

30. The Tribunal accepts that the applicant’s father died when he was a young child. However, the Tribunal has significant difficulty in accepting the applicant’s assertion that his father’s death when he was a young child had a material impact on the applicant’s actions in regard to his study history in Australia. Whilst the Tribunal has a degree of sympathy for the applicant’s circumstances in that he lost his father when he was a young child, the Tribunal does not accept that this reason had a material impact on the applicant’s actions in regard to his study history in Australia. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this information.

31. The Tribunal notes the medical certificate by Dr Cung Tran dated 15 November 2016. In the certificate, Dr Tran indicated that the applicant was ‘home sick’ since February 2016 for ‘last 6 months’ due to the death of his grandmother, his mother being in hospital and his dad passing away when he was a young child. Dr Tran then indicated that the applicant started his Bachelor Degree of Management in February 2016 but then he dropped out of the course due to homesickness. In consideration of Dr Tran’s letter, the Tribunal makes the following findings:

    a.        The applicant was never enrolled in a Bachelor of Management.

    b. The applicant’s explanation to the Tribunal as to his study history in Australia had no reference at all to any suggestion that he ‘dropped out’ due to him being homesick. 

    c.There is no mention in the medical certificate of any diagnosed medical condition that the applicant allegedly suffered, including depression or anxiety.

32. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to the medical certificate by Dr Tran dated 15 November 2016.

33. Accordingly, the Tribunal finds that the circumstances in which the ground for cancellation arose neither reasonably nor sufficiently explain the applicant’s actions to:

    a.not ever commence his Bachelor of Business with his initial course provider.

    b.        voluntarily withdraw from his studies with his initial course provider.

    c.in late 2016, enrol with another course provider in a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality and Bachelor of Business and not complete any of these courses.

    d. allow some 15 months to pass without being enrolled in any course at all, let alone a higher education course.

    e.not make any approaches to the Department to advise them of his situation, even though he knew that this situation could adversely impact upon his visa.

34. Accordingly, the applicant’s claimed circumstances do not convince the Tribunal that the Tribunal’s discretion should be exercised in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

35. In regard to this specific issue, 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, I give these considerations 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.

37. The Tribunal places little 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

38. 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.

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 little 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. The applicant provided no information to the Tribunal on this point. There is no indication that there would be a breach of any international obligations if his student visa was cancelled.

    Any other relevant matters

1. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no substantive or material matters he wanted to raise. 

   Conclusion

2. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 March 2014, now over four and a half years ago, the applicant has not completed any higher education courses.

3. The Tribunal finds that the applicant is not a genuine student.

4. The Tribunal is not satisfied that the applicant’s circumstances warrant the Tribunal exercising its discretion to not cancel the applicant’s student visa.

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

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa.

   Joseph Lindsay
   Member

   
   

   ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.