Gursimran Singh (Migration)

Gursimran Singh (Migration) [2019] AATA 1970 (1 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gursimran Singh
CASE NUMBER:  1718168
HOME AFFAIRS REFERENCE(S):           BCC2017/1740853
MEMBER:Stephen Witts
DATE:1 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 May 2019 at 11:23am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Masters in Accounting – did not maintain enrolment in registered course – family illness – family issues – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 198
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 8 August 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 delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh the grounds for not cancelling the 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.
The applicant appeared before the Tribunal on 1 May 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
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 that the applicant was not enrolled in a registered course between 18 October 2016 and 8 August 2017.
On 20 July 2017 the applicant responded to the delegate’s Notice of Intention to Consider Cancellation. In this submission the applicant stated that he realised that he “had made a mistake of not complying with visa conditions of higher education sector (subclass 573).” He stated that he acknowledged that he was not enrolled during this period of time but that he had had various setbacks in his family that had contributed to this. He stated that these setbacks included his mother’s poor health and that his maternal grandmother had passed away and that there had been a conflict in his family with his daughter-in-law. He then stated that he was not sure that he belonged here in Australia and that one night he was confronted by two men who sought to steal money from him. He further stated that his wallet was stolen another time. He also stated that he received a finger injury.
At the hearing the Tribunal discussed with the applicant his enrolment status between 18 October 2016 and 8 August 2017. The Tribunal explained to the applicant that the delegate had cancelled the applicant’s visa on the basis that he was not enrolled during this period of time. The applicant stated that he 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 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 Tribunal has considered any submissions provided to the Department and the Tribunal, and also the evidence taken at the hearing.
·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 first arrived in Australia from India on a student visa in March 2014 with the intention of studying a Master’s in Accounting at Charles Sturt University. He stated that he completed high school level education in 2013 and does not have any other qualifications gained back in his home country. He stated that his mother wanted him to study in Australia.
The applicant stated that he successfully completed his first two semesters at Charles Sturt University but after that had various problems maintaining his enrolment in a registered course and progressing academically. He stated that he transferred to Holmes College and studied there for a period of time passing two subjects in two semesters there but not being able to continue his study due to various academic difficulties he then dropped out of his course.
The applicant stated that he had experienced various problems here in Australia that made it difficult for him to maintain his enrolment during this period of time. These difficulties included difficulty interacting with the college in regard to his academic performance. He asserted that the course was constructed in such a way that made it difficult for him, and other students, to successfully progress academically. The applicant did not provide any further evidence to this effect. The applicant also asserted that he had been trying to contact the University, specifically via email, and was frustrated in not receiving answers to his requests for discussions regarding his enrolment status and the difficulties he was facing maintaining his enrolment and successfully studying. The applicant also asserted that he had other problems including a hand injury, and also his wallet being stolen from his car with the various relevant papers in it that he was seeking to use in his ongoing discussions with the college about difficulties he was having with his course, and that these factors made it difficult for him to maintain his enrolment at that time.
When asked by the Tribunal whether he had a compelling need to remain in Australia as a student when he could have returned home for a period of time to deal with his family issues and potentially perhaps defer his course for a period of time, the applicant stated that he wanted to remain in Australia so he could prove that he could get a degree and make his family proud of him.
The Tribunal accepts that the applicant may have had some problems at that particular time that may have caused him some difficulties in maintaining his academic progression. However, the Tribunal does not accept that the applicant’s temporary finger injury in October 2016 and the fact that his wallet had been stolen from his car, and that his mother had been unwell for a period of time back in his home country, taken together with the other issues raised by the applicant, are adequate reasons for not being able to maintain his enrolment during this time and the Tribunal also finds that the applicant has not been able to demonstrate that he has a compelling need to remain here in Australia on student visas. The Tribunal finds that the applicant could return home to his home country, and be with his family, and pursue whatever educational endeavours he wishes to pursue back in his home country or another country. The Tribunal finds that the applicant has not demonstrated that he has a compelling need to remain in Australia.
·the extent of compliance with visa conditions
The Tribunal has found that the applicant was in breach of his student visa conditions by not maintaining his enrolment in a registered course between 18 October 2016 and 8 August 2017. But there is no evidence to indicate the applicant has breached other conditions.
The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period.
The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked by the Tribunal to outline any hardship that may be caused by the applicant not being able to remain in Australia on student visas the applicant stated that it will be disappointing for himself and for his family if he is not able to recommence his study here in Australia. The applicant did not enunciate any other particular issues that would create hardship for him by not being able to remain in Australia on student visas. The Tribunal finds that the applicant would not suffer hardship should he return home and not be able to study his accounting qualification here in Australia.
·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
The applicant acknowledged that he was not enrolled to study a course here in Australia during the period of time contended by the delegate, that is between 18 October 2016 and 8 August 2017. The applicant stated that he was unable to maintain his enrolment during this time because of issues associated with difficulties in his academic progression and with his relationship with the educational Institute. He also stated that he had other problems including a finger injury, a lost wallet, and an altercation at some point with some individuals, which made it difficult for him to successfully study.
The Tribunal, although acknowledging that the applicant would have had some difficulties for a period of time, does not accept that this is an adequate explanation that demonstrates that the applicant’s visa was cancelled through circumstances that were beyond his control. It is up to the visa holder to maintain enrolment and progress academically and to inform the Department of his current visa status here in Australia and then make arrangements that ensure that his visa is not cancelled.
The Tribunal therefore finds that there are no grounds for cancellation 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.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellations under s.140.
·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
The Tribunal is mindful of the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three year exclusion period unless relevant Public Interest Criterion is met.
It is unlikely however that the visa applicant will 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
No such considerations are relevant in this case.
·any other relevant matters.
The applicant stated that he had not been able to study successfully for his Masters of Accounting but that he wanted to remain in Australia on student visas to take up study again. He placed significant emphasis on his assertion that the educational Institute would not engage with him about his academic progress.
The Tribunal is mindful the applicant was disappointed by his study here and has considered the evidence provided by the applicant in regard to all the circumstances that he has outlined in regard to why he could not maintain enrolment in a registered course and progress academically to a successful conclusion. The Tribunal finds that the applicant has not demonstrated a compelling need to remain here as a student and nor has the applicant outlined to the Tribunal a degree of hardship that convinces the Tribunal that the applicant should not have his visa cancelled.
The Tribunal appreciates an education from Australia may enhance the applicant’s career, however, the population and economy of India is significant and there are many people in full-time professional employment, specifically in accounting, without a specific education from Australia. The Tribunal has considered the applicant’s statements and the evidence given at the hearing however finds that the breach is significant. The Tribunal has considered all the factors listed above both individually and cumulatively in the context of the breach. As such, considering the circumstances 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 1970

1 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction