Jaspreet Singh (Migration)

[2019] AATA 6757

Jaspreet Singh (Migration) [2019] AATA 6757 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspreet Singh

CASE NUMBER:  1821468

HOME AFFAIRS REFERENCE(S):          BCC2018/1314738

MEMBER:Michael Biviano

DATE:1 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2019 at 11:10am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – substantial period of non-enrolment – financial difficulties – non-payment of fees – responsibility of visa holder – 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. This is an application for review of a decision dated 16 July 2018 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 4 October 2017 and he was not compliant with condition 8202 of his visa.  The Delegate went on to consider whether the factors in favour of cancellation outweighed those against cancellation.  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 19 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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:

   ·must be enrolled in a full-time registered course: 8202(2)(a)

   ·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: 8202(2)(b)

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

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

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 decision record of the Delegate of the Department of Home Affairs dated 16 July 2018, which was provided to the Tribunal by the applicant confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) Student (subclass 500) visa which was granted on 9 August 2017 and the reasons for the cancellation of the visa.

10. Further the applicant has also filed with the Tribunal the Reasons of the Department to grant Bridging visa E dated 20 October 2018 (Reasons).

11. On 18 June 2019, prior to the hearing the applicant via his representative submitted to the Tribunal a written statement in support of his application together with supporting documents (Statement). The Statement set out the applicant’s circumstances as follows:-

    I would like to explain after the grant of my visa in August 2017,I was pursing with my Bachelor’s degree.

    Suddenly, my circumstances got changed. My family back in India, whom I’m very close too, includes my parents and my brother came into big financial loss.
    My father Gurcharan Singh got mentally sick. He attempted to suicide as he was in severe depression. Nobody was aware of it. In November 2017 he started with his treatment. His medical report has been attached for your reference.

    When I came to know, from my other family members that I was about to lose my father, I couldn’t concentrate on my studies and applied for my deferment as I wanted tovisit my family. But my institute show no sympathy and cooperation. They denied my deferment and leave. I was not coping with the mental pressure I was facing at that time. Things were not even over from my father yet. Our family got another hit

    My brother, who is elder than me, had an accident. He almost lost his eyesight. All his medical reports are attached for your reference.

    In all these circumstances of losing your family members, I lost interest in studying. Also my provider was not cooperative with me at all. Every time I went to them for my condition, I was treated very badly. I couldn’t cope with continuing my studies and finically pressure. So provider cancelled my enrolment.

    On 26th June 2018,I got notice of intention to cancel my visa. I wanted to respond with my all my circumstances and condition. So I went to a Registered Migration Consultant (previous agent Arjun Narwal).He failed to respond DOHA with any of my circumstances and got my visa cancelled on 16th July 2018.

    After cancellation, I was not allowed to travel and not to study under my Bridging Visa E. I wanted to resume my studies and complete my course. But because of NO study condition and with no study rights, no institution was ready to enrol me. Attached is the email received from provider every time I attempted to do study.
    Also with good intentions of continuing my studies, I applied for my study rights in October 2018

    I got denied with the study rights. Please find attached the attempt I made for my study rights and email I received of denial.

    I still want to study and complete my degree but because of my visa conditions, I couldn’t do it

12. On 1 August 2019, after the hearing, the applicant via his representative filed with the Tribunal a further submission about his financial circumstances (Submissions).

13. The applicant arrived in Australia in 2014 pursuant to a student visa class TU 573 to study a Bachelor of Business. The Reasons state that the applicant shortly after his arrival in Australia withdrew from the Bachelor of Business course and enrolled in and completed a Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality. However in evidence he claimed that he had completed an Advanced Diploma of Hospitality, not a Diploma in Hospitality.

14. The applicant enrolled in a Bachelor of Business and he commenced studying on 20 March 2017 at Cambridge International College and the course was expected to conclude in December 2019. He gave evidence that he was required to complete 30 subjects to obtain the bachelor’s degree and complete five subjects per semester.

15. In March 2017, he enrolled in the Bachelor of Business course and commenced study. On 9 August 2017 he obtained the Subclass 500 (Student) TU visa.

16. He gave evidence that he paid tuition fees for three months in March 2017 being $3500. However he did not sit exams in or around July 2017 because he was not prepared. The applicant also gave evidence that he was told that he was unable to start studying the second semester unless he completed and passed the examinations for the first semester. He claims that he was asked for two semesters of fees in the order of $10,000 to $12,000 which he could not pay as he did not have the money.

17. However when pressed why he had not sat the exams, he conceded that he was behind in his tuition fees and was not allowed to sit the exams. He sought an extension to pay the arrears in tuition fees by instalments but that request was refused. He was then requested to pay the fees for the previous semester and the next semester.

18. He gave evidence that his father was unable to help him with his tuition fees because his father had invested in his brother’s business and had no funds available to send to him. He asked his cousin in England but he was unable to meet the tuition fees.

19. In the circumstances his enrolment with Cambridge International College was cancelled on 4 October 2017 because he was unable to pay his tuition fees. The applicant initially gave evidence that he believed that his enrolment in the Bachelor of Business ceased in December 2017 but he accepted it was likely to have taken place on 4 October 2017.

20. The applicant gave evidence that he accepted he was not enrolled in a registered course of study from 4 October 2017 until the cancellation of the visa on 16 July 2018.

21. On the evidence before the Tribunal the applicant was not enrolled in a registered course between 4 October 2017 and 16 July 2018. Accordingly the applicant has not complied with condition 8202(2) of his visa. As this was a condition which was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

22. 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, whether the visa holder has a compelling need to travel or to remain in Australia

23. The applicant gave evidence that he came to Australia to study and undertake the Bachelor of Business. However the applicant decided to change his course of study from the business degree to a cookery and hospitality course and then back to the Bachelor degree.

24. The applicant gave evidence that he had studied and completed a Certificate III and Certificate IV in Commercial Cookery and an Advanced Diploma of Hospitality. He also claimed he had initially studied a Bachelor of Tourism in Brisbane, which he did not complete.

25. The applicant readily conceded in evidence, that he was not enrolled in a registered course of study from 4 October 2017 until the date of the visa cancellation on 16 July 2018.

26. The applicant has through the Statement, the Submissions and  evidence at the hearing claimed that essentially his non-enrolment at Cambridge International College on 4 October 2017 arose by reason that:

    (i)He was unable to pay the tuition fees as discussed above;

    (ii)He was unable to concentrate on his studies because of events that had occurred back home to his father, who he is very close to. He gave evidence that his father had suffered depression and anxiety, attempted suicide and was hospitalised. He recovered after two to three months of recuperation. The applicant tendered a letter from Dr Ramesh Lal Goel of Goel Hospital & Scan Centre dated 2 November 2017 who certified that the applicant’s father was suffering from anxiety neurosis and hypertension. He was advised to undertake treatment and complete rest up to 30 December 2017. The Tribunal finds that:-

    a.these matters would no doubt be concerning to the applicant at the time;

    b.however, these events occurred after the applicant’s enrolment in the course had already been cancelled;

    c.the medical evidence is inconclusive as to the extent and seriousness of the applicant’s father’s condition; and

    d.the applicant has not tendered medical evidence or psychological evidence or reports that at the relevant time, the applicant’s condition was so severe that he was unable to study or get enrolled and defer his studies.

    (iii)He was unable to concentrate on his studies because of events that had occurred back home to his brother, who he is very close to. He gave evidence that in mid- February 2018 his brother was involved in an accident and he had lost his eyesight. However with treatment his eyesight was restored after he had injections and two surgeries. The applicant tendered medical reports and the report in June 2018 confirmed that he had regained his eyesight in one eye. The applicant’s brother fully recovered in November 2018 after having undergone two surgeries. The Tribunal finds that:-

    a.these matters would no doubt be concerning to the applicant at the time; however;

    b.these events occurred after the applicant’s enrolment in the course had already been cancelled; and

    c.the applicant has not tendered medical evidence or psychological evidence or reports that at the relevant time,  the applicant’s condition was so severe that he was unable to study or get enrolled and defer his studies.

27. It would appear from the applicant’s evidence that whilst he was not enrolled in a course of study from 4 October 2017, he did not study from June 2017.  The period of non-enrolment from 4 October 2017 until the cancellation of the visa on 16 July 2018 is a period of 10 months and 12 days which is a long period of time not to be studying in Australia which creates doubts as to whether the applicant travelled and stayed in Australia for the purposes of study.

28. The applicant has given evidence that he attempted to enrol in courses while his visa was cancelled, but he did not have study rights and he could not enrol in a course. If the cancellation of the visa is set aside, he intends to remain in Australia to complete his studies in the Bachelor of Business.

29. Having regard to the applicant’s evidence the Tribunal accepts that the applicant may have travelled to Australia intending to study and that he does intend studying in the future but given his conduct in Australia as set out above, the Tribunal only gives this factor some weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

30. The applicant gave evidence that he was not enrolled in a course of study from 4 October 2017 until the cancellation of the visa on 16 July 2018 being a period of 10 months and 12 days which is a substantial period of time.  Therefore the applicant has not complied with condition 8202(2) for a substantial period of time.  The non-compliance with condition 8202(2) for such a substantial period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or he was not responsible for the reason of non-enrolment. 

31. The applicant in the Statement, the Submissions and in evidence gave a number of reasons as to why he was not enrolled during that period of time of 10 months and 12 days, which are set out above. The applicant attempted to claim that the problems with his father and brother caused him to lose concentration and resulted in him being unable to study. The Tribunal does not find those reasons compelling in circumstances where the applicant’s enrolment ceased by reason of being unable to pay tuition fees. While the Tribunal accepts that the difficulties with the applicant’s father and brother would have caused him some concerns, there is no medical evidence or psychological evidence before the Tribunal confirming that the applicant’s condition arising from these matters was so severe that he could not study or re-enrol.

32. The applicant gave evidence that after his enrolment with Cambridge International College ceased, he did not seek to get re-enrolled prior to the cancellation of the visa.

33. The Tribunal finds that the reason for the non-enrolment, was the non-payment of tuition fees, which was the responsibility of the applicant.

34. Having regard to the substantial period of non-enrolment and the applicant’s failure to re-enrol, and that he was not enrolled because he could not meet the tuition fees for his course,  the Tribunal gives this matter substantial weight towards the visa being cancelled.

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

35. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

36. The applicant gave evidence that the visa cancellation would cause him a substantial degree of hardship as he would not have completed a bachelors’ degree and he would be unable to obtain a job and do business in India. He claims that his time in Australia studying would have been wasted unless he obtained a degree.

37. The applicant gave evidence that if the cancellation was set aside he would finish his bachelor’s degree in Business and then probably return to India to get a job as a manager in a restaurant.

38. If the cancellation was maintained he would have to return home and get a job to support himself. He claims that at aged 30, it would be difficult for him to return home and study.

39. The Tribunal finds that these matters are the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

40. The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

41. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

42. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

43. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.

44. The applicant knew and was aware that by not being enrolled in a registered course of study he would have been in breach of condition 8202 and that his visa may be cancelled.

45. The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to his visa and the applicant was not enrolled for a period 10 months and 12 days which is a substantial period to be in breach of the visa.

46. The Tribunal has considered the applicant’s explanations for why he was not enrolled for this long period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

47. On 26 June 2018, the Department provided him with a Notice of Intention to Consider Cancellation of the Visa (NOICC) because he had not been enrolled since 4 October 2017, being a period of nearly 10 months.

48. The applicant gave evidence that his then representative failed to provide a response with the Department within the time required and the Tribunal accepts his explanation for not responding to the NOICC.

49. Further there was no information before the Department indicating that the applicant had been uncooperative with the Department or the Departmental staff. The Tribunal gives this matter marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

50. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

1. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visas.

2. Further, if the Tribunal decides to affirm the decision to cancel the TU500 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

3. However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

4. The applicant gave evidence that if the visa remained cancelled he would return to India and therefore there is no indication that he would become unlawful or be subject to detention.

5. Accordingly the Tribunal gives this factor marginal weight towards the visa not being cancelled.

   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

6. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to India and he did not give any reasons as to why he could not return to India and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

7. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

   Any other relevant matters

8. The applicant in Submissions provided details of his bank account which he claims contains sufficient funds to recommence studies.

9. The applicant also claimed in evidence that he has a dispute with a purported education agent in Sydney (Sydney representative) over not providing him with Confirmation of Enrolment certificates for the courses including the Certificate III and Certificate IV in Commercial Cookery, the Advanced Diploma of Hospitality, and the bachelor’s degree. The Tribunal finds that issue was not relevant to his enrolment ceasing on 4 October 2017.

10. The applicant also gave evidence that in 2015 he had been a victim of a fraud by the Sydney representative resulting in a loss of approximately $12,000. It was submitted that the loss of $12,000 has been referred to Monash Legal Aid for recovery. No documentation was provided in support of this alleged fraud and regarding the transfer of funds. It was submitted that this fraud has been a drain on the applicant’s finances. The applicant did not provide documentary evidence in support of those admissions or explain in any detail what occurred and how it impacted on his financial position.

11. The Tribunal allowed the applicant a further seven days to provide documents in support of his claims to the Tribunal. The applicant did not provide documents about the fraud. Considering the fraud allegedly occurred approximately two years before his enrolment in the course came to an end on 4 October 2017 and that it appears that he was able to continue studying and pay for his tuition during that two year period after these events, and the lack of corroborating evidence about the fraud, the Tribunal does not consider it relevant to the matters associated with the cancellation.

12. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

    Conclusion

13. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michael Biviano
    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.