Gurlal Singh (Migration)

[2018] AATA 5482

Gurlal Singh (Migration) [2018] AATA 5482 (14 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurlal Singh Gurlal Singh

CASE NUMBER:  1721686

HOME AFFAIRS REFERENCE(S):           BCC2017/2476230

MEMBER:Michelle East

DATE:14 November 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 November 2018 at 4:22pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – family issues – emotional distress –circumstances beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198
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 5 September 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 there was a ground for cancellation for breach of condition 8202 of the Act, namely the applicant was not enrolled in a registered course of study from 9 December 2016. 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. A copy of the delegate’s decision was attached to the application for review.

4. The applicant appeared before the Tribunal on 9 November 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 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).

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

9. As outlined in the delegate’s decision, information relied on from the Provider Registration and International Student Management System (PRISMS) indicated the applicant was not enrolled in a registered course of study since 9 December 2016.

10. On the evidence before the Tribunal including the applicant’s own oral evidence, the applicant was not enrolled in a registered course of study.  Accordingly, the applicant has not complied with condition 8202(a).

    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’.

12. On 22 August 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because he was not enrolled in a registered course of study and therefore failed to comply with condition 8202(2) of his visa.  The applicant did not respond to the NOICC.

13. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach

    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

14. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  Having regard to the information before it, the Tribunal is satisfied the applicant travelled to Australia originally intending to study.  However, the Tribunal finds that the applicant was not fulfilling the purpose of his travel to and his stay in Australia because he had not been enrolled in a registered course of study from 9 December 2016.  The Tribunal is not satisfied there are compelling reasons for the applicant to remain in Australia.

15. The applicant’s non-engagement in study for which his visa was granted and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

16. The applicant was granted the visa to undertake specific studies in Australia and has not done so since December 2016.  The applicant has not complied with the primary condition of the visa granted to him.

17. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

18. The Tribunal questioned the applicant about possible hardship to himself or his family if his visa was cancelled.

19. The applicant gave a detailed account of the circumstances in which his breach arose and the possible consequences of his visa being cancelled.  He was visibly distressed at the effect it would have on his mother who had raised him on her own after his father passed away when he was 16 years old.  He said people in his village already spoke unkindly of him and the amount of time that he spent in India visiting his fiancé.  He said his family would face great shame and he felt his mother would blame his fiancé, soon to be wife, for his ‘failure’.  He said his mother would most likely ostracize his fiancé once they were married and he couldn’t think about that possibility.

20. The Tribunal is satisfied that there would be significant hardship to both the applicant and his immediate family members and finds this weighs in favour of the applicant.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

21. The applicant gave evidence of the circumstances leading up to his cancellation.  He said in April 2016 his fiancé’s sister passed away in India aged 17.  He said he had had a very close relationship with the sister and that his fiancé and she were very close as they had been raised by their uncle after their parents passed away.

22. He produced copies of his passport which correlated with his movement records indicating repeated return trips to India in 2016.  At one point he said he stayed in Perth airport for two nights before returning to India on another flight.  He said his fiancé was significantly distressed wanting his company as was his mother who wanted him to return to Australia to continue studying.  He said he suffered significant emotional turmoil during this time and felt unable to discuss it with anybody.

23. He said his mother said she would commit suicide if he didn’t return to Australia and stopped eating until he returned.  He spoke at great length of his shame and distress with the situation and his feeling that he was unable to do anything about it.

24. The Tribunal is satisfied based on the oral evidence provided that the circumstances in which the ground of cancellation arose were beyond the applicant’s control and finds this weighs heavily in favour of the applicant.

    Past and present conduct of the visa holder towards the Department

25. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject 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

26. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

27. The applicant has frequently returned to India and is in fact marrying his fiancé in February 2019.  The Tribunal is not aware of any reason why the applicant would not be able to return to India.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    Whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

29. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

30. The Tribunal regarded the applicant’s evidence as credible. His oral evidence was clear, cogent and at times emotional.  The Tribunal has placed significant weight on this factor when making its decision.

31. The Tribunal has carefully considered the oral evidence given by the applicant.  The Tribunal accepts that the applicant had a difficult time both before and after the cessation of his studies.  The Tribunal acknowledges the significant hardship that would be faced by the applicant, his mother, his fiancé and his extended family were his visa to be cancelled.

32. The Tribunal notes the breach of condition 8202 of his visa and acknowledges the seriousness of breaching that condition.  However, after hearing the applicant’s oral evidence the Tribunal has formed the conclusion that in this matter the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Michelle East
    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.