Jashandeep Singh (Migration)

[2022] AATA 237

Jashandeep Singh (Migration) [2022] AATA 237 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jashandeep Singh

CASE NUMBER:  2003143

HOME AFFAIRS REFERENCE(S):          BCC2019/5338286

MEMBER:Joseph Lindsay

DATE:2 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 2 February 2022 at 4:21pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course ceased – no compelling need to remain in Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant attended an audio hearing with the Tribunal on 11 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   PRELIMINARY MATTERS

4. At the commencement of the hearing, the applicant indicated that he did not know about the hearing on 11 August 2021. However, the Tribunal explained to the applicant that on 27 July 2021 the Tribunal had sent the applicant a hearing invitation by email. The applicant then said he had not checked his email. The Tribunal discussed this issue with the applicant. The Tribunal put to the applicant that, in addition to the email, the Tribunal had also sent two SMS messages to the applicant in respect to the hearing – one on 4 August 2021 and the other on 10 August 2021. The applicant indicated that he had not paid his paid his phone bill and could not send SMS messages, and he did not have access to Wi-Fi at his home. However, the applicant indicated he did receive the SMS messages. Accordingly, the Tribunal does not accept the applicant’s claim that he did not know about the hearing on 11 August 2021.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 (Cth) (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?

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)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·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(2)(c)(ii).

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record dated 11 February 2020. The Tribunal has considered the delegate’s decision record.

8. The Tribunal asked the applicant whether all of the information in the decision record was correct. In response, the applicant indicated that all of the information in the decision record was correct.

9. The Tribunal put to the applicant that the information from the decision record indicated that the applicant had not been enrolled in a registered course of study since 27 November 2018, and therefore the applicant had not complied with condition 8202 of his visa. In response, the applicant said “that’s true.” The Tribunal put to the applicant that it may find that there were grounds to cancel the applicant’s visa under s116(1)(b) of the Act because it appeared that he had not complied with condition 8202 because he had not remained enrolled in a registered course of study since 27 November 2018. In response, the applicant said “it’s true.”

10. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 27 November 2018. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s 116(1)(b) of the Act.

    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 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 Procedural Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

12. In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered course of study since 27 November 2018. In summary, the applicant indicated that he got incorrect advice from his friend and other people who he spoke to about enrolment requirements. However, the applicant then said he first came to Australia on a student visa in 2015. The Tribunal then put to the applicant that by 2018 he had been in Australia for some three years and that the applicant would, by 2018, reasonably be aware that he was required to remain enrolled in order to comply with the conditions of his student visa. In response, the applicant admitted he made a bad decision for himself in not being enrolled in a registered course of study since 27 November 2018. When asked why he did not go to a migration agent or the Department to ask them about these issues, the applicant said he was not sure how to answer the question. The applicant then said he trusted his friend. The applicant admitted he knew he had to remain enrolled to comply with his student visa requirements. The applicant said he thought he might be able to apply for another type of visa. However, the applicant said he did not apply for another type of visa.

13. The Tribunal put to the applicant that his student visa had been granted on 9 October 2018 and that, initially, this visa was valid until 6 January 2021. The Tribunal put to the applicant that because his enrolment was cancelled on 27 November 2018, by the time the Department sent the Notice of Intention to Consider Cancellation, the applicant had remained in Australia without being enrolled in a registered course of study for more than 14 months. In response, the applicant said “yes, I agree with that.” The Tribunal put to the applicant that as the visa holder the Tribunal would reasonably expect the visa holder to comply with the conditions of his visa. In response, the applicant said “yes, I do agree with you.” The Tribunal put to the applicant that the Tribunal may find that he did not take reasonable steps to comply with his visa conditions. In response, the applicant said “yes, I agree with that.”  The Tribunal put to the applicant that the Tribunal may find that the circumstances as he had explained to the Tribunal were not beyond his control. The Tribunal put to the applicant that the Tribunal may find that his circumstances were within his control because by the time he ceased being enrolled he had been in Australia for about three years on a student visa, and that he was reasonably aware that he had to remain enrolled in order to comply with his student visa, yet he made the decision not to remain enrolled and to remain in Australia on a student visa for a lengthy period of time without being enrolled, and in doing so he reasonably knew that was in breach of his visa conditions. In response, the applicant indicated that he agreed with the proposed finding.

14. In respect of the above, the Tribunal makes the following findings.

15. The Tribunal accepts that the applicant got incorrect advice from his friend and other people who he spoke to about enrolment requirements. The Tribunal accepts that the applicant first came to Australia on a student visa in 2015, and that by 2018 he had been in Australia for some three years. The Tribunal accepts that the applicant was, by 2018, reasonably aware that he was required to remain enrolled in order to comply with the conditions of his student visa. The Tribunal accepts the applicant’s admissions that he made a bad decision for himself in not being enrolled in a registered course of study since 27 November 2018.

16. The Tribunal accepts that the applicant’s student visa had been granted on 9 October 2018 and that, initially, this visa was valid until 6 January 2021. The Tribunal accepts that because his enrolment was cancelled on 27 November 2018, that by the time the Department sent the Notice of Intention to Consider Cancellation, the applicant had remained in Australia without being enrolled in a registered course of study for more than 14 months.

17. The Tribunal accepts that the applicant was reasonably expected as the visa holder to comply with the conditions of his visa.

18. The Tribunal accepts that the applicant did not take reasonable steps to comply with his visa conditions.

19. The Tribunal accepts that the applicant’s circumstances were within his control because by the time he ceased being enrolled he had been in Australia for about three years on a student visa, and that he was reasonably aware that he had to remain enrolled in order to comply with his student visa, yet he made the decision not to remain enrolled and to remain in Australia on a student visa for a lengthy period of time without being enrolled, and in doing so he reasonably knew that was in breach of his visa conditions.

20. In all the circumstances as detailed above, the Tribunal does not accept that the applicant took reasonable steps to maintain compliance with his obligation to remain enrolled in a registered course of study under visa condition 8202. Accordingly, the Tribunal places high weight on this information against the applicant.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

21. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

22. The Tribunal accepts that the applicant appears to have complied with his other visa conditions. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

24. In response, the applicant indicated that he would be disappointed, and his family would be disappointed.

25. The Tribunal accepts that there may be some disappointment caused to the applicant, and his family, if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

26. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

27. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

28. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

29. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

30. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

31. The Tribunal places some weight on this information in the applicant’s favour.

    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

32. The Tribunal asked the applicant if he feared anything in returning to India. In response he indicated that he had fears if he went back to India, and that he feared he would feel like a loser. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

33. In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated that there were no other matters he wished to discuss.

    Conclusion

34. In balancing the circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Joseph Lindsay
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.