Grewal (Migration)

Grewal (Migration) [2019] AATA 841 (21 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Satwinder Singh Grewal
CASE NUMBER:  1708366
HOME AFFAIRS REFERENCE(S):           BCC2017/790783
MEMBER:Stephen Witts
DATE:21 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 21 January 2019 at 3:27pm

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 – significant breach – 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

This is an application for review of a decision dated 13 April 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).
The applicant, Mr Satwinder Singh Grewal, is a citizen of India. He was granted a visa to study in Australia.
The delegate cancelled the visa on 13 April 2017 on the basis that the applicant had not maintained enrolment in a registered course, specifically that the applicant had not been enrolled in a registered course of study between 29 November 2016 and the date of decision 13 April 2017. The delegate stated that it was satisfied that there was a ground for cancellation of the visa under paragraph s116(1)(b) breach of condition 8202 of 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.
The applicant appeared before the Tribunal on 16 January 2019 to give evidence and present arguments.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course between 29 November 2016 and 13 April 2017.
At hearing, the alleged breach was put to the applicant and adopting the procedure of the Act 359AA the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if he wished for some additional time to consider this record prior to having a discussion with the Tribunal.
The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record.
According to the applicant’s PRISMS record he has been enrolled in the following courses since his arrival here in Australia:
a)Certificate III in Accounts Administration finished in 2014
b)Certificate IV in Accounting cancelled in 2014
c)Certificate III in Carpentry cancelled in 2014
d)Diploma of Accounting cancelled in 2015
e)Advanced Diploma of Accounting cancelled in 2015
f)Certificate IV in Building and Construction (Building) cancelled in 2016
g)Bachelor of Business Studies cancelled in 2016
h)Certificate IV in Building and Construction (Sales) cancelled in 2016
i)Diploma of Building and Construction (Management) finished in 2016
j)Bachelor of Construction Management and Economics cancelled in 2016
k)Bachelor of Business cancelled in 2017
When asked by the Tribunal to provide evidence as to the status of his enrolment between 29 November 2016 and 13 April 2017 the applicant stated that although he did finish his Diploma of Building and Construction (Management) on 28 November 2016 he did not receive his copy of his diploma and his statement of results until 6 April 2017 from the Della International College. The applicant put forward his point of view that this demonstrated that he did not complete his actual diploma level qualification until that date. He noted that his actual diploma also had a date of 6 April 2017. The Tribunal noted however that on his statement of results sheet it indicated that his course completion date, and his date of finish date on this certificate, was 28 November 2016.
When asked by the Tribunal whether the applicant continued to study his diploma beyond 28 November 2016 the applicant indicated that he did but could not name any of the subjects that he said he may have studied. The Tribunal noted that the applicant’s statement of results indicated that he had successfully completed all his subjects by the stated end date of 28 November 2016.
When asked by the Tribunal to provide evidence as to his enrolments after this date of 28 November 2016 the applicant acknowledged that he has not studied and maintained enrolment since that date.
Based on the above, and on the applicants PRISMS record, and on evidence given at the hearing the Tribunal finds that the applicant was not enrolled during this period of time.
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
Having found that the applicant has not complied with the condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel visa.
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 Tribunal has considered any submissions provided to the department or to the Tribunal and also the evidence taken at hearing and present into the Tribunal.
The applicant was notified of the intention to consider cancellation on 24 March 2017 and the noticed invited the applicant to respond in writing.
On 30 March 2017 the applicant requested an extension of time to provide a statement to the delegate.
On 7 April 2017 the applicant provided the following statement to the delegate:
“I am writing this letter in regards to my NOIC letter I have received from immigration in regard to the concerns about my enrolment. I would also like to thank immigration for the extension provided to me so that I can arrange my documents.
I am a genuine International student and my only intention is to study and complete my course. I want to add that I am not the smartest student but I don’t give up and I am continuously improving and working towards achieving my goal. In regards to my non-enrolment on 29 November 2016. I have been continuously studying and I have recently completed my course i.e Diploma of Building and Construction. My completion date was on 29 November 2016, however I was unable to complete a couple of units and had to submit re assessments which was delayed due to holiday period. I have successfully completed my course and I have been issued with a completion letter, certificate and an academic transcript for diploma of building and construction on 6 April 2017. Please see attached for your convenience.
I am focused to get my Bachelor’s degree and I am already in process to start my dream. After the November 2016 intake, the only available intake was March 2017 and I had to wait to get the diploma of construction to meet the requirements for bachelor’s degree, and as I have been issued with a certificate yesterday, I should be able to enrol for the Bachelor of Business in Holmes Institute. I am currently in process to get letter of offer and COE for this intake only and immediately commencing my course.
I would like to state that I am a genuine student and my only intention is to study and complete my course. I understand that I have been a little slow but I have been continuously trying. I fully respect Australian laws on immigration policies and I have always maintained them. I should have my COE issue by next week and I will commence my bachelors degree the soonest. I will able to provide my COE for bachelors by next week.
I am happy to provide any additional documents if required. Please let me know if you need any further documents from my end.”
At the hearing, when asked by the Tribunal as to the status of the Bachelor of Business enrolment referred to by the applicant above, the applicant acknowledged that in accordance with his PRISMS record, this enrolment was cancelled and the applicant did not study this course.
·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
The applicant stated that he arrived in Australia with the intention of studying for an accountancy degree but was unable to continue this study at higher level and so decided to study building and construction instead.
The applicant stated that he came here to study because he thought Australia would be a great place to get such a qualification.
The applicant stated that he successfully completed high school back in his home country and then went on to study successfully a Diploma of Information Technology, also back in his home country.
The applicant stated that he rents in Hillside in Melbourne and lives with friends he has made here in Australia. He stated that at present he was not working but that he had worked as a carpenter for some time here in Australia. He stated that his family were providing funds for his stay here and his friends had also lent him money.
The applicant stated that “if I get a degree I can stay here” and stated that it was his intention to study here successfully and stay permanently in Australia if he could.
When invited by the Tribunal to put forward any evidence in regards to his compelling need to remain in Australia the applicant stated that he would find it difficult to return home to study in his home country. He stated that his family were aware of his current situation here and that he wanted his student visa back so he could study. The applicant did not provide any other evidence in regard to his need to remain here in Australia and study.
The Tribunal notes the applicant’s evidence that, in fact, he wishes to remain here in Australia permanently and wishes to get an Australian qualification so as to assist his remaining here permanently and finds that the applicant did not put forward a compelling need to remain in Australia on student visas.
·the extent of compliance with visa conditions
There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal invited the applicant to provide evidence of a degree of hardship that may be caused by not being able to continue his study here in Australia. The applicant did not provide any specific evidence that he would experience a degree of hardship if he was not able to remain in Australia. The applicant stated that if he had to go home at this point he would find it difficult to undertake his study back in his home country but did not indicate why that would be the case given that he has completed his high school level education back in his home country and has successfully completed a Diploma of Information Technology. As stated he also indicated that his family were well aware of his situation here and were supportive.
The Tribunal recognises that the applicant did have problems here in Australia with his study but is concerned that the applicant did not provide any evidence in regard to any hardship that will be caused him should he not be able to study here anymore. It is noted that the applicant has now been here for several years studying various disparate courses in accounting and building and construction and that the applicant has actually finished a certificate in accounting and a diploma in building and construction.
The Tribunal finds that the applicant did not demonstrate a case for hardship consideration and that the applicant’s evidence does not outweigh his enrolment and study record here in Australia and the significant breach of not being enrolled during this period of time in favour of not cancelling the applicant’s visa.
·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
There is nothing in this matter, specifically in the evidence presented by the applicant that would indicate that the ground for cancellation arose beyond the visa holder’s control.
·past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.
·whether there would be consequential cancellations under s.140
There are no consequential cancellations in this matter.
·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
It is unlikely that the visa applicant would be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.
·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
There is nothing before the Tribunal to indicate any international obligations to consider.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
There is nothing in this regard for consideration.
·any other relevant matters.
The applicant did not provide any other reasons for his lack of enrolment during this period. The applicant gave no indication when asked to explain and detail to the Tribunal any other concerns he may have as to his general welfare should the visa be cancelled. The Tribunal appreciates that an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment in India, and the applicant did not give any other evidence to indicate a detrimental effect if the visa was cancelled. The population and economy of India is significant and there are many people in professional full-time employment without a specific high level education from Australia.
The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions of his visa, he made no attempt to inform the Department or rectify the situation and the Tribunal places significant weight on the nature of the breach.
The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Stephen Witts
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.

[2019] AATA 841

21 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice