LOVEPRIT SINGH (Migration)

[2019] AATA 1370

LOVEPRIT SINGH (Migration) [2019] AATA 1370 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr LOVEPRIT SINGH

CASE NUMBER:  1704179

HOME AFFAIRS REFERENCE(S):           BCC2017/320164

MEMBER:Mr S Norman

DATE:8 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2019 at 10:06am  

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 – ceased enrolment six months after arrival – not a genuine student – work history in Australia – financial capacity – 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 6 March 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2)(a) – enrolment. 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 2 May 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 (initially) 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.

   Meaningful opportunity to give evidence and submissions

7. The Tribunal understands it is obligated to provide an applicant with a meaningful opportunity to give evidence and submissions (including at hearing). That being said, on occasion at hearing it proved difficult for the Tribunal to clarify the applicant’s material evidence as he did not appear to provide a meaningful response to the question asked. There was no apparent reason to believe the applicant may not have understood the interpreter (ie there did not appear to be any material confusion between the interpreter and the applicant at hearing). The applicant was also able to speak some English and often preferred to respond in English at the hearing. However, the Tribunal regularly used the interpreter during the hearing and when pressed, the applicant eventually appeared to provide a meaningful response to material questions asked. The Tribunal also provided the applicant with opportunities to expand on his evidence at hearing. After then considering his responses, I am satisfied the applicant was given a real opportunity to put his case at the hearing.

   Did the applicant comply with Condition 8202?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 14 January 2016 (expiry date 15 March 2019). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 February 2017, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 19 July 2016. Further, that it therefore appeared he had breached one of the conditions attached to his visa (8202(2)(a)); and that his visa may be cancelled pursuant to s.116(1)((b) of the Act.

10. On 23 February 2017, the applicant responded to the NOICC. However, he did not dispute there were grounds for cancelling the visa. When discussed at hearing, the applicant also did not dispute there existed grounds to cancel his Student visa.

11. Therefore, 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

12. 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’.

13. Regarding the purpose of the applicant’s travel to and stay in Australia, the Tribunal notes that after being granted his Student visa on 14 January 2016, and after arriving in Australia (in January 2016 – as claimed at hearing), the applicant ceased being enrolled in a registered course of study from 19 July 2016, being some six months after he arrived in Australia.

14. At hearing, the applicant explained that he commenced a (12 month) Diploma of Business course on arrival in Australia, but that he had only completed 6 months of that course. In their decision, the delegate recorded that the education provider had stated the applicant “missed a total of 126 hours as of June 20, 2016 (79%). Two warnings and a Notice of Intention to Report were issued to the student, as per our internal policies”. When put to him at the hearing, the applicant conceded this was correct.

15. After then ceasing his studies for the Diploma of Business (for which he paid AUD6,000), the applicant said he had attempted to recover the monies he had pre-paid for a Bachelor of Business degree (AUD10,000). He said he spoke to the Principal of the College who said the applicant would be provided ‘some’ of the pre-paid monies for the Bachelors degree.  The Principal said the applicant would be contacted later about returning ‘some’ of the monies but that no further contact was received. When then asked whether he had made further attempts to contact the Principal and/or recover the monies, the applicant said he had not.

16. When then asked why the applicant did not try to recover the monies pre-paid for his Bachelor’s degree, the applicant made a reference to his health. However, when subsequently asked at the hearing, the applicant said that claims he was unwell (in response to the NOICC) were made by his migration agent to the Department, and that this claim was false– and the Tribunal accepts this is correct (though the applicant said he was depressed after his Student visa was cancelled on 6 March 2017 – referred to below).  

17. At hearing, and given all the accepted evidence herein, the Tribunal put to the applicant it may not accept he is now a genuine student. He said he now wishes to study and would attempt to pay for any future studies he attended. However, and based on all the accepted evidence herein, the Tribunal is not satisfied the intention for the applicant’s ongoing residence in Australia, is for the purposes of study. Neither do I accept he is a genuine student.

18. Next, at hearing the applicant (initially) conceded that he had not commenced or started any course of study since failing to be enrolled in a registered course of study on 19 July 2016. The Tribunal believes this breach to be significant.

19. However later in the hearing, the applicant, who until more recently was assisted by a migration agent, said for the first time that he had attended a Diploma of Business course for three months between April/May/June 2018. He said he ceased this course as he was unable to pay the school fees. The Tribunal notes there is no corroborating evidence of this new claim. Be that as it may, and even if I accept the new claim, the applicant did not study between 19 July 2016 to April 2018; and he then did not study between June 2018 and the date of the Tribunal hearing (being 2 May 2019). The Tribunal still believes the breach to be significant.

20. Next, and regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, after considering the response to the NOICC the Department delegate was not satisfied the applicant had raised any specific issues relating to hardship. When discussed at hearing, the applicant said that if he had to return to India (Haryana State – where his parents and two siblings resided), his ‘career would be finished’.

21. At hearing the Tribunal then noted that country information it had considered indicated that India has one of the fastest growing large economies in the world.[1] Also, that regarding education the country information stated:  

    India’s higher education system stands third in size in the world after the US and China with nearly 26 million students in over 45,000 institutions in the country. In the last decade the country has witnessed a particularly high growth rate in student enrolment at a CAGR of 10.8% and institutions at 9%. …  

    Indian higher education has been progressing at a fast pace adding over 20,000 colleges and about 8 million students between the ten year period 2001 - 2011. As of 2011, Indian higher education system is spread over 42 central universities, 275 state universities, 130 deemed universities and 90 private universities. … [2]

    [1] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Economic Overview’, p.8.

    [2] ‘HIGHER EDUCATION IN INDIA - Access, Equity, Quality’,  Obadya Ray Shaguri - EAN World Congress Scholar 2013, accessed 27 February 2019.

22. When discussed, the applicant said (words to the effect) he would have nothing to do in India. However, the Tribunal noted that even though his father’s farm was adversely impacted by flooding (as was claimed at hearing), and the father had to take secondary work as a security guard at a bank, the father could still support the applicant’s elder brother who was studying a MBA in India (probable completion date - mid-2019); he could support the applicant’s younger brother who was studying in Year 12 in India (probable completion date – mid-2019); and he could support the applicant’s mother (a house wife). However, the applicant also conceded the father could not assist him financially in Australia.   

23. The Tribunal also noted the applicant would be able to study more cheaply in India. The applicant did not agree with this but his response suggested that education in Australia would be more prestigious than in India. When then discussed, he conceded that education in India was cheaper than that available in Australia. Be that as it may, the Tribunal accepts that some education in Australia, may be more prestigious than some education in India.

24. The applicant also said he and his family wished him to complete his studies in Australia. However, and even if the Tribunal accepts the applicant studied in early 2018 (as he claimed for the first time at hearing), his failure to engage in any studies for lengthy periods of time have not satisfied the Tribunal the applicant either wishes to or would continue to study in Australia.

25. If the Tribunal is wrong in this finding, and for the purposes of this decision, I propose to accept the applicant or his family would be disappointed if he does not complete studies in Australia. I also accept the applicant or his family may suffer some other limited hardship if his Student visa is cancelled. Be that as it may, given the accepted evidence herein, the Tribunal is not satisfied the applicant’s career would be finished or he would have nothing to do if he returned to India on the cancellation of his Student visa.

26. Regarding the circumstances in which the ground of cancellation arose, the applicant said that he became ill and was unable to maintain his studies for the approximately seven months up to the time the NOICC was issued. However, the delegate (and now the Tribunal) noted that no corroborating evidence had been lodged to support this claim (and none was provided at hearing). For instance, there is no medical or other information indicating from what the applicant allegedly was suffering, or the likely impact this may have had on his capacity to maintain enrolment in a registered course of study.

27. When discussed at hearing, and as noted above, the applicant said his agent at the time provided false information to the Department. He said that he was not ill and only suffered some depression after his Student visa was cancelled in March 2017 (and therefore the Tribunal finds any claimed depression was not the cause for the applicant breaching the visa condition). However, the applicant had also said he had worked approximately 30 hours per week from mid-2016 to July/August 2017 as a driver; and that he had then worked for approximately 20 hours per week in a chicken factor up to the date of the Tribunal hearing. The Tribunal then noted that he had previously conceded he had not attended a doctor in Australia or taken any medication. The Tribunal then said that it may not (and now does not) accept that any claimed health issues prevented the applicant from studying in Australia.

28. When discussed, the applicant made references to not having checked his email, that he repeated he was depressed after his Student visa was cancelled (though he continued to work). In the circumstances, and given it did not prevent him from engaging in ongoing work the Tribunal does not accept the applicant’s claimed mental health issue (depression) prevented him from studying in Australia.   

29. At hearing, the applicant also conceded that he had not approached his education provider to seek to defer his studies, and neither had he contacted the Department (until after receiving his NOICC).

30. At hearing, the applicant did say that one of his teachers had made racist comments to him when he commenced his studies. However, when discussed, he conceded that this did not prevent him from studying and he had also reported the matter to his then Principal.

31. Though not expressly claimed by the applicant, he did make references to his father’s farm being adversely impacted by flooding, and that the applicant had remitted some monies to his family. However, a primary responsibility of a Student visa holder is to maintain enrolment in a registered course of study. Further, after then noting the applicant was unable to continue his claimed studies in early 2018 due to being unable to pay his school fees, the Tribunal said it may not accept he could now afford to pay school fees in Australia. The applicant said he would ‘try’ to pay his school fees in the future. However, the applicant also conceded that his father’s farm was still adversely affected by the claimed flooding, and the Tribunal is not satisfied the applicant could afford to pay for further registered studies in Australia, for the foreseeable future.

32. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Tribunal or the Department. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. Based on all the findings herein, the Tribunal is not satisfied there is any compelling need for the applicant to travel to or remain in Australia.

33. Next, if the applicant’s Student visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

34. The Tribunal also notes that if the applicant’s Student visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation (at hearing the applicant said he may apply for a further Student visa to study in Australia).

35. That being said, given the substantial periods of time within which the applicant had not engaged in any study, given his apparent lack of financial capacity to pay for education in a registered course in Australia, and given the Tribunal is not now satisfied the applicant is a genuine student, I am satisfied it is appropriate to exercise the discretion to cancel in this case.

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

    DECISION

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

    Mr S Norman
    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.