Harkamal Singh (Migration)

[2019] AATA 1268

Harkamal Singh (Migration) [2019] AATA 1268 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harkamal Singh Harkamal Singh

CASE NUMBER:  1730680

HOME AFFAIRS REFERENCE(S):     BCC2017/2999359

MEMBERS:P. Wood (Presiding)

Dr J. Harkess

DATE:10 April 2019

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) visa.

Statement made on 10 April 2019 at 10:18am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – lower back injury – dispute of fees with course provider – made no attempt to rectify non-compliance – length of non-enrolment – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 22 November 2017 cancelling his Subclass 573 High Education Sector visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s visa was granted on 24 July 2014 with an original expiry date of 15 March 2019. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

3. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to continue 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.

4. The applicant appeared before the Tribunal on 21 March 2019 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 affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’). In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2) of the Applicant’s visa, as set out in Schedule 8 of Regulations, requires that the Applicant be enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 24 February 2017 to 22 November 2017 as being the relevant period in which the Applicant was not enrolled in a registered course. This amounted to a total time of approximately nine months when the Applicant was in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. In this regard, the PRISMS database performs two important functions. First, it permits registered course providers to issue Confirmation of Enrolment certificates (‘COEs’) to students upon their enrolment in an approved course of study. The COE may then be used by the student when applying to the Department of Home Affairs (formerly, the Department of Immigration and Border Protection) (‘the Department’) for a student visa. Clause 500.211 of the Regulations stipulates that a student visa can only be granted if the applicant is currently enrolled in an approved course of study. A current COE is treated by the Department as evidence of such enrolment.

4. Secondly, the PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, PRISMS may be used by course providers to report that they have cancelled a particular student’s COE in a course for which the student had previously been enrolled, and the reasons for making such .

5. The PRISMS report obtained by the delegate indicated that on 24 February 2017 the Applicant’s educational provider at the time, Stotts College, notified the Department of Education and Training that it had cancelled his COE due to the Applicant himself advising Stotts of a cessation of studies. In his oral evidence given at the hearing before the Tribunal, the Applicant conceded that his enrolment in a registered course of study had ceased and that he did not enrol in any further course of study by the time the delegate had come to decide to cancel his visa on 22 November 2017.

6. Accordingly, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2) of the visa for approximately nine months in 2017.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. In his evidence given before the Tribunal, the Applicant stated that on 26 January 2017 he returned to India for the purposes of receiving medical treatment in relation to a lower back injury. He provided medical records verifying that he received such treatment at a hospital in Punjab where he was admitted as a patient for eight days. While in India, he stated that he received an email from Stotts College relating to his enrolment for first semester of 2017 which was due to start in March. The Applicant stated that from India on about 24 February 2017, he replied to the email from Stotts College advising them of his treatment and requesting study leave for his enrolment for the semester. Ultimately that request was refused and at this point it seems that the Applicant became aware that his COE was to be terminated.

3. When he returned to Australia on either 2 or 3 March 2017, he was advised by immigration authorities that his COE at Stotts College had been cancelled and that he would need to take steps to re-enrol in order to maintain compliance with his visa conditions. He was told by immigration authorities that he might otherwise face the risk of the Department cancelling his visa. The Applicant stated that on the following day he attended Stotts College and attempted to enrol in the same course that he had been doing before leaving for India. He stated that staff at Stotts College told him that his COE had cancelled. The Applicant further stated that he was told by Stotts College staff that he had to re-enrol in the same course and recommence units from the beginning. At this point, the Applicant referred to some issue arising between himself and Stotts College relating to the payment of further tuition fees. The Applicant said in evidence that he was not satisfied with Stotts College’s requirement that he would have to pay an additional $5000 to $7000 in fees which, in the Applicant’s view, he should not have had to pay at all. Ultimately, this dispute appears not to have been resolved between Stotts College and the Applicant. The Applicant stated that Stotts College would not re-enrol the Applicant in his desired course.

4. It was following this issue with Stotts College that the Applicant’s enrolments in all courses at Stotts College ceased. It was at this point that the Applicant began accruing time in breach of condition 8202 of his visa due to his continued non-enrolment in any registered course of study. Eventually, the continued period of non-enrolment came to the attention of the Department which led to the cancellation of his visa now on review before the Tribunal.

5. When the Tribunal inquired of the Applicant as to why he made no attempt to resolve the issue of his non-enrolment after it became clear that Stotts College would not re-enrol him, the Applicant was unable to provide any satisfactory explanation. The Applicant stated that for the next eight months, he just ‘sat in the house’ because he did not know what to do. He made no attempt to enrol in another course with a different course provider. Beyond the Applicant’s oral evidence at the hearing before the Tribunal, there is no evidence demonstrating he formally progressed his dispute with Stotts College in accordance with its student complaints procedures. He also made no attempt to contact the Department to seek advice as to what he might be able to do. While the Tribunal accepts that a student in the Applicant’s situation may suffer some degree of stress, such a student would also be expected to take some positive steps to ameliorate the difficult situation he faced. On his own evidence, he did nothing. The reasons he did nothing are not satisfactory and are inconsistent with a genuinely held desire to continue to study in accordance with the fundamental purpose for which his visa had been granted.

6. In that regard, the breach of condition 8202 of the Applicant’s student visa is taken very seriously by the Tribunal. Condition 8202 is a fundamental condition that underpins the grant of all temporary student visas in Australia. For the Applicant to breach it for such a lengthy period, without providing any satisfactory explanation, weighs heavily in considering the cancellation of the Applicant’s visa.

7. The Tribunal notes that the Applicant will suffer some hardship if his visa is cancelled given that he invested some time in Australia to achieve much more in educational qualifications that he has currently achieved. If he has to return to India following the cancellation of his visa, the Tribunal accepts that he will face some stress and anxiety as a result of his family’s reaction to him returning to India without completing what he had originally sought to achieve in Australia.

8. The Tribunal also recognises that, if his visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period so that he an finalise his affairs in Australia before departing.

9. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited option when applying for further visas in Australia, including the possibility that he may not be granted a temporary visa for three years from the date of the cancellation.

10. The circumstances of this case are not such as to engage Australia’s international obligations.

11. In terms of past and present behaviour of the Applicant towards the Department, the Tribunal has no adverse information before it. There is also no information suggesting that, if the Applicant’s visa is cancelled, other persons’ visas will be cancelled under s 140 of the Act.

12. There appear to be no other relevant matters of significance in relation to the present application on review.

13. Having regard to all the circumstances as outlined above, on balance the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) visa.

P. Wood
Senior Member

Dr J. Harkess
Member