Gurpartap Singh (Migration)

[2017] AATA 2530

Gurpartap Singh (Migration) [2017] AATA 2530 (3 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Gurpartap Singh

CASE NUMBER:  1700150

DIBP REFERENCE(S):  BCC2016/3298422

MEMBER:Tigiilagi Eteuati

DATE:3 August 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 03 August 2017 at 11:47am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Ceased to be enrolled in a Bachelors degree – Solely undertake vocational courses

LEGISLATION
Migration Act 1958, s 116(1)
Migration Regulations 1994, Schedule 8, Conditions 8202(2) – (3)(b), 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with the condition of his visa to be enrolled in a registered course. 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 17 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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. The Minister’s delegate found that the applicant had not been enrolled in a registered course between 29 August 2016 and December 2016. This accords with records held by the Department and the issue was also conceded by the applicant.

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).

   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 to exercise its discretion to cancel the visa.

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. The applicant gave evidence that he arrived in Australia in July 2014. He gave inconsistent evidence as to whether he had completed Certificate IVs in information technology (IT) and business. The Tribunal accepts the applicant’s evidence that he completed Certificate IVs in both business and IT. When his visa was granted he had enrolled in courses in information technology (IT) beginning with a Certificate IV, then a Diploma and finally a Bachelor of IT. The applicant said that by the end of 2014, he completed the IT Certificate IV and changed courses. Therefore, the applicant’s enrolment in the Bachelor of IT was cancelled in March 2015 and he was in breach of condition 8516 from that time. His new enrolments included a Certificate IV in Business to be followed by a Diploma in Business The applicant completed the Certificate IV in Business and enrolled in a Bachelor of Business degree in June 2015 to begin once he had finished the Diploma of Business.

13. However, the applicant did not begin his Diploma in Business and his enrolment in the Diploma was cancelled in July 2015. His enrolment in the Bachelor of Business was consequently cancelled in August 2015.

14. The applicant said that around mid-2015, he visited a number of lawyers who were migration agents for advice as to how to change courses again. He said that the lawyers reminded him of his obligation under condition 8516 to remain enrolled in a higher education course. Nevertheless, the applicant abandoned his higher education courses, changed educational institutions and enrolled in a third Certificate IV in August 2015, this time in Small Business Management at the New England Institute of Technology. At the same time he enrolled in a Diploma of Business to begin once he had completed his third Certificate IV.

15. The Tribunal asked the applicant why he had not sought a COE for a Bachelor degree when he enrolled in the other courses and the applicant said that at the time he did not know whether he wanted to undertake a Bachelor degree or whether he wanted to undertake an Advanced Diploma once he finished the Certificate IV and Diploma courses.

16. The applicant completed the Certificate IV and Diploma in Business. As of 29 August 2016, the applicant was not enrolled in any courses until he enrolled in an Advanced Diploma in Business on 13 December 2016 after he was sent the Notice of Intention to Consider Cancellation (NOICC) by the Department on 6 December 2016.

17. In his response to the NOICC the applicant claimed that in August 2016 he wished to enrol in an Advanced Diploma in Business so he called his family in India to ask for his family to pay for his fees for the Advanced Diploma. He said that his father told him that his mother was very ill and that the family needed to use the money they had saved for the applicant’s fees to pay for his mother’s medical expenses. The applicant said that he suffered from mild depression after he discovered his mother’s condition and, somewhat bizarrely, sought psychiatric treatment from a doctor in India who appeared to prescribe him with drugs to treat his depression.

18. The applicant had claimed that after two months of treatment his mother recovered. He said that his father had said that he had a good crop that season and was to sell his crop and send money to the applicant in November for his fees. The applicant said that his father was unable to send him money in November 2016 owing to the withdrawal of the 500 and 1000 rupee notes from circulation by the Indian government in November 2016.

19. The Tribunal raised with the applicant its concern that, given that the applicant had decided to undertake a series of vocational courses and had abandoned in 2015 both Bachelor degree courses he had enrolled in, the applicant may not have the desire to undertake higher education level courses in Australia. The Tribunal indicated that its concern was heightened by the fact that:

    ·     the applicant had indicated that he had not sought a COE for a Bachelor degree in 2015 because he was unsure whether he wished to undertake a Bachelor degree;

    ·     when he finished his Diploma of Business he said that he wished to undertake an Advanced Diploma rather than a Bachelor degree; and

    ·     after he received the NOICC he enrolled in an Advanced Diploma rather than a Bachelor degree.

20. The applicant indicated that if he were successful before the Tribunal he would apply for another visa and complete his vocational Advanced Diploma. He said that he then intended to undertake a Bachelor degree.

21. The Tribunal finds that the applicant does not have the desire to successfully undertake a higher education course in Australia. The applicant completed a Certificate IV in IT but then abandoned his Diploma and Bachelor of IT courses. He then completed a second Certificate IV, this time in Business, but again abandoned his Diploma and Bachelor of Business courses. Instead he enrolled in a third Certificate IV, this time in Small Business Management and then completed a Diploma of Business. Instead of enrolling in a Bachelor of Business course, the applicant indicated that when he finished his Diploma of Business course he wished to undertake another vocational diploma course, an Advanced Diploma in Business. Finally, when the applicant re-enrolled in a course after he received the NOICC he enrolled in an Advanced Diploma rather than a Bachelor degree.

22. The Tribunal is willing to accept that the applicant had difficulties paying for his Advanced Diploma course after he finished his Diploma course owing to his mother’s illness and the demonetization of the 500 and 1000 rupee bank notes in India. However, it is evident that the applicant was seeking to undertake yet another vocational diploma in mid to late 2016 rather than to begin a Bachelors course. He first breached condition 8516 in March 2015 when he ceased to be enrolled in a Bachelors degree. While he again held a Bachelor degree COE briefly from June 2015 this was cancelled in August 2015 and he has not held a Bachelor degree COE since that time. Even if the applicant’s visa had not been cancelled, it was due to expire in August 2017 shortly after he would have been due to complete his Advanced Diploma in July 2017. The Tribunal finds that it is clear, in these circumstances, that the applicant did not intend to undertake a higher education course during the currency of his visa and is not satisfied that he has the desire to undertake a higher education course in the future.

23. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a HE course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. However, the applicant was not permitted to solely undertake vocational courses and was required to remain enrolled in a higher education course.  Any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study but instead chose to complete a series of vocational courses.

24. In any event, the Tribunal finds that the applicant’s lack of desire to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

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

27. Tigiilagi Eteuati
    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.