Inderjit Singh (Migration)

[2017] AATA 2341

Inderjit Singh (Migration) [2017] AATA 2341 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Inderjit Singh

CASE NUMBER:  1622189

DIBP REFERENCE(S):  BCC2016/3471726

MEMBER:Tigiilagi Eteuati

DATE:8 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 08 November 2017 at 6:17pm

CATCHWORDS

Migration – Cancellation - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to maintain enrolment – Failure to maintain enrolment – Ability to undertake higher education course – Personal hardship on return

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 8, Condition 8202, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 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 had breached the condition of his visa to remain 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 8 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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

6. 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?

7. 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).

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

9. The Minister’s delegate found that the applicant had not been enrolled in a registered course between 18 November 2015 and 28 November 2016. This was conceded by the applicant and accords with records held by the Department.

10. 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

11. 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.

12. 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).

13. The Tribunal considered all the material on the Department and Tribunal files including submissions and attachments thereto provided by the applicant’s representative.

14. When the applicant arrived in Australia in August 2014 he was enrolled in a Certificate IV in Business to be followed by a Diploma of Management, then a Diploma of Business and finally a Bachelor of Business degree. He said that he attended the Certificate IV course from October 2014 until March 2015 but found the course too difficult and was unable to complete the course successfully. He then said that he applied to undertake the Certificate IV course again starting in March 2015 but only attended class 2 or three times before giving up that same month. He said that he was depressed at this time and “didn’t know what was happening with me.”

15. The applicant’s enrolment in the Diplomas and Bachelor degree course were consequently cancelled in April 2014. The applicant has been in breach of condition 8516 since his enrolment in the Bachelor degree was cancelled on 2 April 2015. The applicant claims that he was notified by his education provider of the cancellation of his courses in November 2015 when the enrolment for the final course he was enrolled in was cancelled on 18 November 2015. The applicant was in breach of condition 8202 from this date.

16. The applicant said that he tried to enrol in another Certificate IV course with a different education provider in December 2016 but was ultimately unable to do so because he claimed that the first education provider refused to provide him with a ‘transcript’ or record of his studies at their institution. He said that after this he became depressed again.

17. The applicant enrolled in a Bachelor of Business degree course on 28 November 2016 after he received the Notice of Intention to Consider Cancellation (NOICC) from the Department on 14 November 2016.

18. The Tribunal raised with the applicant its concern that the applicant appeared to have breached both condition 8202 and condition 8516. He said that he did not know that his courses were cancelled until he was told by his education provider in November 2015. He said that he tried to enrol in another course but was unable to do so because the first education provider did not provide him with an academic record.

19. The Tribunal raised with the applicant its concern that, because the applicant had not been enrolled in a course between November 2015 and November 2016, had ceased to be enrolled in a bachelor course in April 2015, and had not studied since March 2015, he did not have the will to successfully undertake a higher education course in Australia. The Tribunal pointed out that the applicant did not appear to have even attempted to study since March 2015. The applicant said that he had made mistakes in the past, that if he held another visa he would try hard to study and that he now wanted to complete a bachelor degree course.

20. The Tribunal raised with the applicant its concern that because the applicant had been unable to complete even a Certificate IV course, the applicant may not have the ability to successfully undertake a degree course in Australia. The applicant said that he was only 19 years of age when he had attempted the Certificate IV course, that he had learnt a lot in three years here and now considered that he had the ability to successfully complete a degree course.

21. The applicant said that he would suffer hardship if his visa remained cancelled in that his parents would be depressed if he returned to India without completing any courses. He said that he would suffer shame in his community in India if he returned to India without completing any courses.

22. The Tribunal finds that the applicant does not have the will or the ability to successfully undertake a higher education course in Australia. The applicant’s lack of will to study is evidenced by the fact that he has not been enrolled in a course between November 2015 and November 2016, had ceased to be enrolled in a bachelor course in April 2015, and had not studied since March 2015. His inability to complete a higher education course is evidenced by the fact that the applicant was unable to pass a Certificate IV course.

23. The Tribunal is willing to accept that the applicant and his family members may experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete a 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.

24. The Tribunal finds that the applicant’s serious breaches of conditions 8202 and 8516 and the applicant’s lack of desire and ability 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 Class TU visa.

    Tigiilagi Eteuati
    Member

    
    

27. 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.