HARDEEP SINGH (Migration)

[2019] AATA 2060

HARDEEP SINGH (Migration) [2019] AATA 2060 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HARDEEP SINGH

CASE NUMBER:  1704032

HOME AFFAIRS REFERENCE:                BCC2017/320392

MEMBER:Lilly Mojsin

DATE AND TIME OF

ORAL DECISION AND REASONS:          11 April 2019 at 3:25 pm (NSW time)

DATE OF WRITTEN RECORD:                1 May 2019

PLACE OF DECISION:  Sydney

Statement made on 01 May 2019 at 12:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Advanced Diploma of Business – not enrolled in registered course – non-receipt of fees – course provider delayed in issuing documents – exercise of discretion – compelling need to remain in Australia – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140, 189
Migration Regulations 1994 (Cth), Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 11 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The delegate cancelled the visa on the basis that the applicant was enrolled in a registered course, therefore the issue before the Tribunal in the present review is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

4. Condition 8202 as it applies in this case relevantly requires that the applicant be enrolled in a registered course or in limited cases a fulltime course of study or training.  The department notified the applicant on 9 February 2017 that it intended to cancel his visa.  The applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

5. In a submission to the department the applicant notified the department that he had been having difficulties with his course provider the Western Institute of Technology who had apparently not received payment of his fees.  On that basis they did not issue him with a diploma or a transcript of his studies completed.  Therefore, 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).

6. 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 the Tribunal must consider in the exercise of its discretion as to whether or not to cancel the visa.  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 general visa cancellation powers.

7. Considering the relevant factors the Tribunal finds that the purpose of the visa holder’s travel and stay in Australia was in order to study and obtain qualifications.  The Tribunal accepts that the applicant paid his fees to the course provider Western Institute of Technology and that their delay in not issuing him with his diploma and transcript resulted in him not being enrolled in a registered course.

8. The Tribunal is satisfied that the visa holder has a compelling need to remain in Australia in order to complete his studies.  The Tribunal places weight on the visa holder having a need to remain in Australia.

9. In regard to the extent of compliance with visa conditions the applicant has advised that he has not breached any visa conditions and the Tribunal has no evidence before it to suggest that he has not complied with visa conditions.  The Tribunal places weight on the applicant’s compliance with visa conditions in regard to not cancelling the visa.

10. In regard to the degree of hardship that might be caused the Tribunal accepts that the applicant who was studying at the Global Institute and that this institute ceased teaching students on 19 February 2019.

11. The Tribunal notes that this particular institute is required under Australian law to place him with another provider or provide a refund of tuition fees.  The applicant is now enrolled in an Advanced Diploma of Business at the Australian International Academy and it is anticipated that the course will end on 5 April 2020.

12. The Tribunal accepts that the applicant would suffer hardship in these circumstances for not remaining in Australia to complete his studies.  The Tribunal accepts that the applicant wishes to work as a manager in a company.  He is from Punjab and he is single.  He does not work and his family is supporting him.  The Tribunal places great weight on the applicant continuing to study in Australia despite the hurdle that he has had to face after the institute in which he was studying ceased its business.  The Tribunal places weight on these factors against cancelling his visa.

13. There is no evidence before the Tribunal to suggest that the applicant’s past and present behaviour towards the department has not been exemplary.  The Tribunal places weight on this factor for not cancelling the visa.  The Tribunal is mindful that cancellation could lead to the applicant becoming an unlawful non‑citizen who could be detained and removed from Australia pursuant to section 189.  The applicant would need to seek advice regarding his immigration status in that instance.

14. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could be also subject to a three year exclusion period unless he meets the relevant public interest criterion.

15. There are no persons in Australia whose visas would or maybe cancelled under section 140. The Tribunal notes from the decision record that there is no information before the department that indicates that any other person currently holds a visa because the applicant held his student visa. Therefore, any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under section 140 of the Migration Act.

16. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements or international obligations, including non-refoulement and best interests of the children, would be breached as a result of cancellation.  On the evidence before it the Tribunal weighs these factors neither in favour nor against cancelling the visa.

17. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.  Considering the circumstances as a whole the Tribunal concludes that the visa should not be cancelled. 

    DECISION

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

    Lilly Mojsin
    Member