Gurwinder Singh (Migration)

[2019] AATA 4068

Gurwinder Singh (Migration) [2019] AATA 4068 (13 August 2019)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Mr Gurwinder SINGH

CASE NUMBER:  1902903

REFERENCE(S):  BCC2018/ 5317626

MEMBER:Meredith Jackson

DATE:13 August 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 13 August 2019 at 4:52pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – study history – medical condition – family member passing away – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

SUMMARY

1. This is an application for review of a decision dated 4 February 2019 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) 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 had not complied with subclause 8202(2)(a) of condition 8202 attached to his 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.

3.    The applicant appeared before the Tribunal on 13 August 2019 to give evidence and present arguments.

4.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Evidence before the Tribunal

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.

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 full time registered course: 8202(2)(a)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(c)(ii).

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

Background summary

8.    The applicant is Mr Gurwinder Singh, a 24 year old citizen of India who first arrived in Australia on 16 June 2014, having been granted a Student visa to study a package of courses leading to a Bachelor of Information Technology degree. He did not pursue that course of study, and in February 2015 undertook the first of several courses in the vocational education and training (VET) sector. Mr Singh then applied for the visa under review on 30 August 2017, again to study a package of courses leading to a higher education qualification, this time the final course was to be a Bachelor of Business. After studying short vocational courses, he commenced the Bachelor of Business on 28 August 2017. In February 2018, he stopped attending classes. On 13 February 2018 his education provider cancelled his enrolment. He was not enrolled again before his visa was cancelled in February 2019. Mr Singh claims that from early 2018 he was depressed and unable to study and after approaching his provider to discuss deferment, then taking no steps to formalise it, he stopped studying and until his visa was cancelled, was unaware that his course had been cancelled by the provider. He appealed the cancellation and was granted a Bridging visa with study rights. Mr Singh enrolled again in a Diploma of Project Management in April 2019 and claims he is now in a position to study.

Written submissions to the Tribunal

1. Prior to the hearing, Mr Singh provided a copy of the delegate’s decision, which stated, in summary:

   i.that the applicant had been issued a Notice of Intention to Consider Cancellation (NOICC) on 21 January 2019 to which he did not respond;

   ii.that the visa holder did not dispute the ground(s) for cancellation;

   iii.that the delegate was satisfied there was a ground for cancellation under s116.(1)(b) of the Act;

   iv.that the purpose of his travel to and stay in Australia was to study;

   v.that Mr Singh continued to reside in Australia on the student visa for approximately 12 months while not enrolled;

   vi.that the purpose of Mr Singh’s stay was no longer for study and no longer in line with the purpose of the visa;

   vii.The decision weighed factors emerging from the assessment of his case and was satisfied after consideration of all information that the grounds for cancelling the visa outweighed the reasons for not cancelling.

   10.      Mr Singh provided the following documents at the hearing:

   i.An Overseas Student Confirmation-of-Enrolment (COE) for his current course, a Diploma of Project Management in the VET sector commencing on 22 April 2019 and ending on 19 April 2020;

   ii.A Course Progress Statement dated 9 August 2019 from Skills Institute Australia for the course named at (i) above, stating that the applicant’s course standing is satisfactory;

   iii.An enrolment Confirmation from Universal Business School Sydney in a Bachelor of Business commencing 28 August 2017 and due to finish on 21 August 2020;

   iv.A medical certificate dated 10 February 2019 from Dr Ranjit Kaur stating that “Mr Gurwinder Singh has a medical condition – hypothyroidism and Vit D deficiency and has been feeling tired and anxious. He has not been able to attend his college for the last 2 months due to this. He is taking medications for these conditions.”

   The hearing

   11.      Mr Singh said at the start of the hearing:

   i.He did not respond to the NOICC because everything was happening at once. This was due to thyroidism and depression and deficiencies, he was still taking medication (Thyroxin and Vitamin D) to treat his condition.

   ii.He did not provide written submissions to the Tribunal prior to the hearing date because he was getting documents together;

   iii.He is currently studying and is attending his classes regularly, between 80-90 per cent of the time;

   iv.He has paid approximately $4,000 AUD in course fees, he pays in monthly instalments;

   Information put under s.359AA

   12.      Information regarding the applicant’s study record in the Provider Registration and International Student Management System (PRISMS) was put to Mr Singh under s.359AA at the hearing. The Tribunal stated that it had information to put to him before asking him some questions. The information would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review to cancel the visa. The Tribunal said the information in PRISMS was relevant because the database captures a chronological record of a person’s academic history in Australia: enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal gave Mr Singh a copy of the PRISMS record, and stated that the pages given were not the whole of the information held about him in PRISMS but was relevant information. He was given time to study the record and advised that he could seek additional time. If he did wish to seek additional time, the Tribunal said, it would consider granting it. After discussion of the contents of the PRISMS record, as outlined in paragraphs below, Mr Singh said he understood it and why it was relevant to the Tribunal’s decision. He did not seek additional time to consider the record.

   13.      In response to the PRISMS information put to him, Mr Singh stated:

   i.He had attended Bachelor of Business classes from their commencement in August 2017 until January 2018, when he suffered a medical condition and could not study: he felt he was depressed. He called the education provider, whom he referred to as “GCA” and said he was interested in deferment. After that he did not hear from the college, they did not send emails or advise him otherwise of his enrolment being cancelled;

   ii.After that time he claims he became careless and very lazy, gaining weight. He did not formalise the deferment, he just drifted along doing nothing. He was not working. He continued along without knowing that his enrolment had been cancelled. He found out about it for the first time when he got the visa cancellation decision;

   iii.He had not responded to the department’s NOICC because of the illness he was suffering;

   iv.In January 2019 things got worse when his grandfather passed away; that is when the depression began;

   v.He does not dispute that he was not enrolled between 13 February 2018 and 4 February 2019 but he was unaware that the college had cancelled his enrolment; over that period he thought he still had an enrolment;

   vi.If the college had informed him he was not enrolled, that they had cancelled his enrolment then he would have done something about it; as they didn’t call him or advise him, he thought maybe they had granted deferment but he said he wasn’t sure;

   vii.In response to the Tribunal’s questioning as to whether he disputed the delegate’s finding that he was not enrolled between 13 February 2018 and the cancellation of his visa on 4 February 2019: he reiterated that he did not know he was not enrolled until the visa was cancelled;

   viii.In response to the Tribunal’s questioning he said he knew it was a condition of his visa that he must remain enrolled;

   ix.The reason the medical certificate he submitted to the Tribunal only states that he has been unwell for the “last 2 months” and not for a period of a year while he was not studying is that doctors “can’t go back that far”;

   x.What had now changed to allow him to study is that he is taking medication for his condition and it appears to be working and allowing him to study; although he has not yet been back to the doctor to find out whether there have been any changes to his condition, he is feeling better;

   xi.In response to the Tribunal’s questioning about whether his perceived recovery and enrolment might be seen as an attempt by him to ensure he was enrolled when appearing before the Tribunal: he responded that this was not the case;

   xii.In response to the Tribunal’s questioning about having initially stating he had been depressed for a year since early 2018 and later stating that his depression commenced after his grandfather passed away in January 2019; he said he had not been to the doctor in the earlier period;

   xiii.In response to the Tribunal’s questioning about whether some doubt might reasonably exist about his ability to study, and some doubt might reasonably exist about his likelihood of remaining enrolled given his record: he responded that he was now studying and was planning, if his visa was not cancelled, to go on and study a Bachelor of Business in the discipline stream he is in.

   Does the ground for cancellation exist?

   14.      The Tribunal has considered Mr Singh’s evidence, including oral and written submissions in relation to a potential breach of condition 8202. The Tribunal has no evidence before it that Mr Singh was enrolled in a registered course between the cancellation of his COE on 13 February 2018 and the delegate’s decision of 4 February 2019. The Tribunal notes Mr Singh’s PRISMS record, as put to him in the hearing, confirms his own sworn evidence that his Bachelor of Business course was cancelled shortly after he had a discussion about deferment with his education provider, which he states (but does not provide evidence) was in January 2019. The Tribunal has no evidence before it that the education provider had failed to act on deferment. The Tribunal has no evidence before it that Mr Singh was enrolled between the date of the visa cancellation, 4 February 2019 and the start of his current VET course on 22 April 2019. The Tribunal is not satisfied that Mr Singh was enrolled in a registered course between 13 February 2018 and 21 April 2019, for a period exceeding 14 months.

   15.      Based on the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

   The discretion

   16.      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 purpose of the visa holder’s travel and stay in Australia

   17.      Mr Singh was granted his Subclass 500 student visa on the basis of his intention to study a package of courses leading to a Bachelor degree course in the higher education sector. This was the second visa granted to Mr Singh for study at the higher level. His initial visa was a Subclass 573 student visa issued in May 2014, and was granted on the basis of streamlined visa processing, a now discontinued scheme which facilitated access to students from certain countries who would otherwise face a more complex processing regime. Mr Singh did not study successfully in the higher education sector on either of these higher education-ready visas, instead he chose to study a series of six short vocational courses. His first enrolment in a degree course, a Bachelor of Information Technology, was discontinued in December 2014; his enrolment in the Bachelor of Business was short-lived: after commencing in August 2017, he ceased attending classes in February 2018. The Tribunal considers that the purpose of Mr Singh’s travel and stay in Australia was to study a package of courses leading to a degree at higher education level. The Tribunal is not satisfied that Mr Singh has successfully studied at that level, but accepts that on at least one occasion attempted to do so. The Tribunal weighs this consideration somewhat in favour of the applicant.

   The circumstances in which ground of cancellation arose

   18.      Mr Singh claims that the reason for not continuing to study in his Bachelor of Business course, was because of the onset of illness which denied him the motivation to study and generally participate in normal activities. The Tribunal has considered this as a potential explanation for his absence from his studies at degree level, but notes his medical certificate states his condition extends for two months prior to 10 February 2019. It does not extend for the full period of his absence from his studies. The applicant’s response to this is that the health system, when consulted, does not look that far back. The Tribunal questioned, but did not get persuasive answers from the applicant about why, if he was sufficiently ill that he could not study, he did not seek medical advice sooner than 10 February 2019, which, the Tribunal notes, was six days after his visa was cancelled and two days before applying for a review of the decision. The Tribunal has taken into account that Mr Singh has offered no convincing explanation for having discontinued his higher education enrolment without attempting, before or after the fact, to find out the effect of his actions on his visa. The Tribunal is not able to determine from his evidence why, as he claims he would have telephoned his education provider in early 2018 to canvass deferring his studies, but not follow up with the college at any stage after that as to whether his enrolment remained current. This is despite not attending classes for the most part of a year. He distributes responsibility for this circumstance to his education provider for not contacting him and following up on his telephone discussion.  The Tribunal notes that his further claim, that he was disrupted because “everything was happening all at once” is not supported by evidence or persuasive argument from the applicant. Mr Singh has conflated his explanation regarding his absence from studies in the period after February 2018 with the more acute moment and impact of the passing away of his grandfather in early 2019. The timing of the two events is demonstrably far apart, one is almost a year after the other. The Tribunal can conclude that the tragedy could not have affected Mr Singh’s study motivation from February 2018, although it accepts the tragedy would have been relevant in the period around its occurrence and the cancellation of the visa. The Tribunal spent considerable time in the hearing discussing these circumstances with Mr Singh but is not persuaded that the tragedy or other compelling and compassionate issues contributed to his decision to discontinue his Bachelor of Business degree in February 2018 and not study for a year. The Tribunal concludes Mr Singh actively chose not to study in that period and chose not to formalise his departure from study with his provider and chose not to clarify his enrolment status. The Tribunal affords this consideration considerable weight against the applicant.

   The extent of compliance with visa conditions and interaction with the department

   19.      The Tribunal is satisfied that applicant did not comply with condition 8202(2)(a) attached to his visa. However the Tribunal notes Mr Singh is now enrolled in a registered course and is attending, on his evidence and that of his provider, on a regular basis. The Tribunal notes some gaps in the study record of Mr Singh since his arrival in Australia, but, for the purposes of this decision, accepts there is no substantial evidence before the Tribunal that Mr Singh has not complied with his visa conditions on earlier occasions. The Tribunal accepts Mr Singh’s sworn evidence that he did not work during the period of his visa breach; and, while he did not respond to the department’s NOICC prior to his visa cancellation, accepts that Mr Singh has been otherwise compliant with his visa conditions and obligations to the department. The Tribunal affords this consideration some weight in the applicant’s favour.

   The degree of hardship that may be caused by a visa cancellation

   20.      The Tribunal questioned Mr Singh about the effect on him of a visa cancellation. He stated the main effect will be that his parents will be disappointed in him if he returns to India without having completed his studies. Further, he is aware a cancellation will mean he is not able to complete the degree-level qualification he came to Australia to pursue in June 2014. The Tribunal affords this consideration some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s.140

   21.      Mr Singh stated in the hearing that there would be no consequential cancellations arising from the cancellation of his student visa. The Tribunal affords this consideration no weight.

   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

   22.      The applicant is currently on a bridging visa because of this review process, having resided in Australia without a valid visa from the date of the cancellation on 4 February 2019 until the grant of his Bridging (subclass WE-50) visa on 25 March 2019. In the absence of Mr Singh making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, he will have the opportunity to depart Australia. Whilst a continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore. The Tribunal affords these considerations no weight in the applicant’s favour.

   Whether any international obligations, including non-refoulement would be breached as a result of the cancellation

   23.      The Tribunal has no evidence before it that a breach of any of Australia’s international obligations would result from the visa cancellation. The Tribunal affords this consideration no weight.

   Conclusion

   24.      The Tribunal has carefully considered the applicant’s claims, and weighed its considerations accordingly, as described earlier in these reasons. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, and having regard to all the evidence before it, balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student 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 Class TU visa.