Kabal Singh (Migration)

[2019] AATA 2395

Kabal Singh (Migration) [2019] AATA 2395 (17 April 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kabal Singh

CASE NUMBER:  1717696

DIBP REFERENCE(S):  BCC2017/2084431

MEMBER:Donna Petrovich

DATE OF DECISION:  17 April 2019

DATE CORRIGENDUM

SIGNED:6 August 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

In paragraph 24:

For ‘The applicant did not make any claim to the Tribunal relation to any person in Australia whose visa would, or may be cancelled under s.240 of the Migration Act 1958 (‘the Act”)’.

Read ‘The applicant did not make any claim to the Tribunal relation to any person in Australia whose visa would, or may be cancelled under s.140 of the Migration Act1958 (‘the Act”)’.

Donna Petrovich
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Kabal Singh

CASE NUMBER:  1717696

HOME AFFAIRS REFERENCE(S):          BCC2017/2084431

MEMBER:Donna Petrovich

DATE:17 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 17 April 2019 at 3:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – breach of condition –not enrolled in a registered course of study –  not responsive to un-enrolment – significant breach and time frame of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 August 2017 made by a delegate of the Minister for Immigration and Border Protection 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 under s116!1)(b) the applicant has breached his visa condition - 8202 of the Act. 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 28 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and his immigration agent. 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.

7.    The applicant Kabal Singh is a 27 year old male from India. He was granted a (Temporary) (class TU) Higher Education Sector (subclass 573) on 21 January 2015. He arrived in Australia 2 February 2015, having enrolled in a registered course of study, namely Cert IV Business Administration and English for Academic Purposes.

8.    The Provider Registration and International Student Management System (PRISMS) records that the applicant enrolment was discontinued on 26 October 2016 due to not being enrolled in a registered course of study. This information was extracted from the delegate’s decision. The applicant then enrolled in a Cert IV Commercial Cookery 28 August 2017 – 24 February 2019 and a Diploma of Hospitality Management 25 March 2019 – 22 September 2019.

9.    A Notice of Intention to Consider Cancellation (NOICC) dated 17 July 2017 was sent to the applicant advising that he was in breach of a condition of his visa.  The applicant responded to the email on 17 July 2017 the applicant did not dispute the grounds for cancellation, and said he had inadvertently breached the conditions of his visa.  He acknowledged that he had received an email from the education provider regarding his cancellation of his COE.  The applicant advised the delegate that he had not been able to attend due to his distress over his Grandfathers illness.

10.  The applicant provided the Tribunal with the following documents prior to the Hearing on 28 March 2019: Statement of response to NOICC by Mr Singh providing reasons for not cancelling visa; certificate of enrolment  issued 1 August 2017 for course commencing on 28 August 2017; Certificate of Enrolment issued 1 August 2017 for course commencing 25 March 2019; Mr Singh’s IELTS test result Dated 15 March 2014, Medical Certificate for India for Mr. Singh’s grandfather’s medical condition; letter for  offer of employment from the Hotel Khurana Palace.

11.  The delegate cancelled the applicant’s visa on 17 July 2017 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study for 9months from 26 October until 17 July 2017.

12.  For the following reasons the Tribunal has concluded that the decision to cancel the applicants visa should be affirmed.

Did the applicant comply with Condition 8202?

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).

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

14.  The delegates decision notes that information before the department indicates that the applicant did not maintain enrolment in a registered course of study from 26 October 2016 until 17 July 2017.  In his responses to the NOICC the applicant did not dispute the grounds for cancellation.  He made a submission that he inadvertently breached the conditions of his Visa and that he was in error.   

15.  As indicated by the material provided by the applicant in his Certificate of enrolment record. The applicant remained un-enrolled for 9 months between 26 October 2016 and 17 July 2017 when the Department (NOICC) was issued. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between the above dates, nor is there evidence he was enrolled in a full time course of study or training. The applicant made submissions to the Tribunal that he had lost interest in everything around him including his study when his Grandfather became ill in India. The Tribunal heard that he did not seek assistance from his place of education, or seek counselling or even confide in his friends or housemates. During this time he didn’t do anything and stayed at home in his room. The applicant was granted a visa on 21 January 2015 in which time he studied a six weeks English for Academic Purposes course and a Cert IV, and Business Administration at the Zenith Business Academy. His enrolment ceased 17 July 2017. 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

16. 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’

17.  The applicant responded to the Notice of Intention to Consider Cancellation sent to him by the Department on 17 July 2017. In his response he said that he had contacted his immigration agent and that he had then commenced enrolment proceedings. Enrolment Cert IV for course commencing on 28 August 2017 which was issued on 1 August 2017. The applicant also provided the following documents in support of his statement. Certificate of Enrolment for both course’s, IELTS Score test, Medical Certificate, and a letter of support for employment on return to India.  The Tribunal recognises that the applicant was not responsive to his un-enrolment until he received the Notice of Intention to Consider Cancellation for a period of nine months. Only then did he engage the assistance of an immigration agent. Having  regard to this evidence the Tribunal places significant weight in favour of not exercising discretion in favour of the applicant as this is a significant breach and time frame of non- enrolment.       

18.  Having regard to the purpose of the applicant’s evidence. The Tribunal accepts that the applicant may have travelled to Australia intending to study, but gives no weight in favour of this evidence towards the visa not being cancelled.

19.  The applicant made no submission as to whether he as the visa holder has a compelling need to travel to or remain in Australia. The Tribunal places no weight in relation to this evidence.

20.  The Tribunal highlighted to the applicant during the hearing that he had breached his visa condition 8202 for a significant period of time which was 9 months. He pointed to the issues set our above and below and said he believed he had complied with other conditions of his visa. The Tribunal accepts that the applicant complied with other conditions, but did not comply with the condition 8202 of being enrolled in a course of study.  Therefore, the Tribunal places little weight in favour of the applicant in this regard. 

21.  The applicant expressed concerns around emotional hardship and that if cancelled his family would be upset as they were proud their son was studying in Australia.  He did not elaborate on the details however, making it difficult for the Tribunal to place significant weight on his submission in this regard. In this case the Tribunal accept that there may be some hardships to the applicant and his family if the visa remains cancelled, as is the case for many students in this circumstance. The Tribunal gives this some consideration; but overall places some weight in favour of the visa being cancelled.

22.  The Applicant made submissions that he had lost interest in his studies because of his Grandfather’s in India’s illness, he submitted that he is very close to his Grandfather. When asked had he sought assistance from anyone, including perhaps seeking some counselling, he said he had not. He submitted that he had stayed in his room and not spoken to anyone at the University, nor his friends or family. He did not seek treatment and has not provided any evidence of a diagnosis. The Tribunal has considered this submission and is unable to determine in favour of the applicant due to lack of material to support a diagnosis of any illness.   

23.  There was no evidence that the applicant had been un-cooperative in his behaviour in the (past or present) towards the department. I give this some small weight in his favour.

24. The applicant did not make any claim to the Tribunal relation to any person in Australia whose visa would, or may be cancelled under s.240 of the Migration Act 1958 (‘the Act”). According to the Department’s records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

25.  Accordingly the Tribunal places no weight on this consideration in the applicant’s favour.

26. In relation to 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.

27. The Tribunal acknowledges that the cancellation of the visa would have the effect that the applicant many become an unlawful non-citizen and may be liable to detention and removal under the Act if he decided not to leave Australia voluntarily. Having made that finding, we also note that the applicant would have available to him the possibility of applying for a bridging visa E, which would allow him to finalise outstanding matters.

28. We further acknowledge that, if the visa is cancelled, the Applicant will be subject to section 48 of the Act meaning he would have limited options to apply for further visas in Australia. The applicant would also be subject to Public Interest Criterion 4013 with the effect that he may not be granted a temporary visa for a period of three years from the date of the cancellation.

29.  We have considered these matters carefully and weighed them in terms of the hardship they might result in. We find that, while they have weight in favour of the Applicant’s visa not being cancelled, that weight is a lesser consideration that the significance of non-compliance.

30.  The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.  

31.  Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant matters before the Tribunal.

32.  Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Donna Petrovich
Member

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.