Lovjinder Singh (Migration)

[2019] AATA 6772

Lovjinder Singh (Migration) [2019] AATA 6772 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovjinder Singh

CASE NUMBER:  1815313

DIBP REFERENCE(S):  BCC2018/834943

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 December 2019 at 11:37 am (NSW time)

DATE OF WRITTEN RECORD:                19 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 19 March 2020 at 12:18pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – non-commencement and cancellation of enrolment – discretion to cancel visa – credibility – no response to department’s and tribunal’s communications – no documentary evidence – study history and cancellation of previous courses – enrolment in lower-level course – possibly working full-time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a Delegate of the Minister for Immigration and Border Protection on 23 May 2018 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 6 December 2019 the Tribunal made an oral decision and gave an oral statement of reasons for that decision. The following is the written record of those reasons.

3. The Delegate cancelled the visa on 23 May 2018 on the basis that the applicant had not complied with condition 8202 because he had not been enrolled in a registered course of study since 15 August 2017.  The issues on this review application are whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. On 2 May 2018 the Department sent to the applicant a notice of intention to consider cancellation of his visa (the NOICC), inviting him to comment on a possible breach of condition 8202(2)(a) arising from his non-enrolment and to give reasons why his visa should not be cancelled.  The applicant did not respond to the NOICC. So much is clear from the Delegate's decision and from the other documents in the Departmental file to which the Tribunal had access.

5. On 23 May 2018 the applicant was notified by the Department that his visa had been cancelled for breach of the condition. 

6. On 25 May 2018, the applicant filed his Review Application in the Tribunal.  No other documents were provided to the Tribunal at that time or indeed at any other time.

7. On 28 May 2018, the Tribunal sent to the applicant an acknowledgement letter which indicated that he could provide to the Tribunal any information and documents on which he wished to rely. The applicant did not respond to this letter. 

8. On 25 October 2019, a Hearing Invitation was sent to the applicant in the usual form.  In that letter the applicant was informed of the hearing date, invited to attend the hearing and informed that he should read, complete and return the enclosed response form and  provide all other documents on which he intended to rely in support of his review case within seven days of receipt of that letter.  The applicant did not respond to the Hearing Invitation, did not complete or at least return the response form and did not provide any other documents or information to the Tribunal in response to that letter.

9. The applicant has appeared today, 6 December, at the scheduled hearing.  Shortly prior to the hearing, the Tribunal obtained, as is usual procedure in these cases, a copy of an updated PRISMS record, together with Movements Details. The details in these records has been discussed with the applicant at some length this morning and the information in them is not relevantly in dispute, apart from one aspect to which the Tribunal will return later in these reasons.

10. The applicant has given sworn evidence today in support of his case.  In addition, towards the end of the applicant's oral evidence, the applicant's wife, Deepharman Kaur, also gave evidence in support of his case, the content of which will be addressed later in these reasons. Both have given evidence in English. Neither made any request for an interpreter to be present and the Tribunal is satisfied that they had a sufficiently good grasp of English to enable them to give evidence unassisted by an interpreter.

11. For the reasons which follow, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed. 

12. The Delegate's finding that the applicant had not been enrolled in a registered course of study since 15 August 2017 was based on information in a PRISMS record which the Delegate had obtained.  As noted earlier, the applicant had not provided to the Department any evidence by which to contradict that information. Accordingly, the Delegate was satisfied that the applicant had not complied with condition 8202(2)(a) as and from that date and that consequently a ground for cancellation of his visa under section 1161(1)(b) of the Act had been made out.

13. As to whether the visa should be cancelled, the Delegate considered the matters referred to in the Department's Procedures Advice Manual (PAM), these being the purpose of the applicant's travel to and stay in Australia, the extent of his non-compliance with condition 8202, the degree of hardship which would be caused to him and his family in the event that his visa was cancelled, the circumstances in which the ground for cancellation arose, his behaviour towards the Department and certain other matters. 

14. After taking into consideration those and other factors which were regarded to be of no or little weight, the Delegate was satisfied that the grounds for cancelling his visa outweighed the reasons for not cancelling it.  Accordingly, the applicant's visa was cancelled.

15. The Delegate’s decision also recites that the visa was due to expire on 20 September 2018. Although a copy of the visa grant notice is not among the documents in the Department's file, the tribunal will proceed on the basis that the visa expired on that date. The applicant confirmed as much in his oral evidence today.

16. The NOICC recites that the subject visa is a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa granted to the applicant on 31 December 2014 and that one of the conditions on which the visa was granted was condition 8202. The Movements record confirms as much.

17. At the hearing the applicant did not dispute that at the time of the Delegate's decision he had not been enrolled in a registered course of study since he completed the Diploma of Leadership and Management at the George Brown Institute on 18 June 2017.

18. As noted earlier, the Delegate had no information from the applicant as to how the breach of condition 8202 came about and whether there were any extenuating circumstances.  In his oral evidence today, the applicant conceded that he has not been enrolled in a registered course since that Diploma was completed some two and a half years ago. PRISMS indicates that the applicant had been enrolled in an Advanced Diploma of Leadership and Management due to commence in July 2017 and finish in July 2019.  The record also indicates that his enrolment in that course had been cancelled on 15 August 2017 for non-commencement of studies.  There was a good deal of discussion with the applicant today as to whether in fact he ever enrolled in the Advanced Diploma of Leadership and Management the effect of which is broadly that he has no real memory of whether he did or not. It was suggested to him that he may have enrolled in both courses at the same time, and reference was made in the course of his evidence to the fact that he did enrol in a package of courses before he came out here and that his (TU) (573) visa had in fact been granted to enable him to undertake studies in a Certificate IV in Business Administration, a Diploma of Business and a Bachelor's degree.

19. Although on the applicant's own evidence he has not been enrolled in a registered course of study since he completed the Diploma in June 2017, PRISMS indicates that he had not been enrolled in a registered course since August 2017 and the Tribunal prefers the information in the PRISMS record in these circumstances.

20. There was some discussion with the applicant concerning the significance of this and the fact that the information in the PRISMS record was more favourable to him than his own evidence.  Consequently, no application for an adjournment was made and, in any event, none would have been granted in these circumstances given the nature of the discrepancy and the utility of investigating whether or not the applicant had ever been enrolled in the Advanced Diploma. 

21. At the time of the Delegate's decision, the situation was that the applicant had not been enrolled in a registered course of study for at least nine months. The Tribunal will return to the circumstances in which the breach occurred but clearly, on the basis of this evidence, the breach by the applicant of condition 8202(2)(a) is clearly established on the evidence and the power to cancel his visa under section 116(1)(b) is enlivened in this case.

22. Turning to the second issue, namely whether the visa should be cancelled, there are no matters specified in the Act or in the regulations which must be considered in the exercise of this discretionary power.  Obviously the Tribunal must have regard to the individual circumstances of each case, including in this case the matters raised by the applicant in his oral evidence, together with other matters referred to in the PAM, and these matters will need to be specifically addressed in these reasons.

23. Before coming to the relevant detail of the applicant's oral evidence in relation to this issue, the Tribunal is also entitled to have regard to any matter that it considers relevant. One of the important matters in this case, at least in so far as the assessment of the applicant's oral evidence is concerned, is the fact that he did not respond to the NOICC, did not provide to the Delegate any documentary information in response to the NOICC and, since the filing of his Review Application, within two days of having got notice of the cancellation of his visa, he has not responded to any of the invitations or requests made by the Tribunal to provide documentary evidence in support of his case.

24. Of course, an applicant in a case such as this is not under any obligation to provide information or documents in response to invitations or requests but this is a matter which the Tribunal is entitled to take into account when assessing the applicant's oral evidence, whether that evidence should be accepted without any documentary reinforcement, as it were. In this case, nothing much may turn on the absence of documentary material, but the Tribunal has come to the view that the applicant's oral evidence must be treated with a good deal of circumspection in so far as his uncorroborated explanations are concerned and, more particularly, in relation to the circumstances in which the breach occurred and his desire to remain in Australia for study purposes.

25. The applicant did have difficulty in answering some simple questions today. The Tribunal is satisfied that he had a sufficient understanding of the questions to answer them directly.  One of those questions was whether he had been employed on a full-time basis since June 2017 when he completed the Diploma. The Tribunal asked him a number of times whether he had been employed on that basis at any stage during the period since June 2017.There were long pauses to these questions. Ultimately, the applicant simply said that he had no idea. Obviously this sort of response is of real concern to the Tribunal and must be taken into account in the assessment of his overall credibility and reliability as a witness.

26. The applicant did give some evidence which the Tribunal is prepared to accept, and he did make some frank admissions at the hearing which have simplified, as it were, the fact-finding process. But overall the Tribunal was unimpressed with his oral evidence in so far as it purported to explain his decision-making in this case and the reasons why he has not been enrolled in a registered course of study, on his version, since June 2017.

27. The applicant confirmed that he was born in India in September 1994, that he was granted the (TU) (573) visa to study various business courses before he came out here.  These courses comprised the package referred to earlier, courses which were to be undertaken at ZBA College in Sydney.  The broad effect of the applicant's oral evidence is that his parents had agreed to pay for his tuition whilst in Australia and to support him financially on his academic journey here. According to his evidence, they did in fact pay some of his tuition fees before he arrived.

28. He arrived in Australia on 3 January 2015. He enrolled in and completed an Advanced English course at ELSIS, which began a couple of days after his arrival. This course was  completed on 27 March 2015.  His studies in the Certificate IV began in April 2015 and were completed in October 2015 at ZBA.  He did not proceed with the Diploma of Business and accepted that his enrolment in that course was cancelled on 14 December 2015 for non-commencement.  He accepted that his enrolment in the Bachelor of Business was also cancelled for non-commencement on 27 January 2016.  He enrolled in and completed the Diploma of Leadership and Management at George Brown, a course which began on 20 June 2016 and was completed on 18 June 2017.

29. As indicated earlier, PRISMS records that he did enrol in an Advanced Diploma of Leadership and Management, presumably also at George Brown, a course which was due to commence on 17 July 2017, but according to PRISMS, that too was cancelled for non-commencement on 15 August 2017. As noted earlier, the Tribunal prefers this record to the applicant's oral evidence that he could not remember having enrolled in such a course.

30. As to the circumstances in which the breach of condition 8202 occurred, the Tribunal has a situation where the applicant has not been enrolled in a registered course of study since August 2017. As I have said, the applicant gave to the Delegate no information regarding the circumstances in which that breach occurred. 

31. In his oral evidence today, the applicant explained that when his enrolment in the Bachelor's course was cancelled for non-commencement in January 2016 his parents were disappointed and indeed so much so that they declined to further assist him with the payment of his tuition fees or to otherwise support him to undertake further studies in Australia. The applicant went on to say that his parents had the money to pay for his courses and the Tribunal is prepared to accept that they did and is prepared to accept his evidence that in fact they had paid for the initial enrolment in the business package before he came out here. This seems at least inherently plausible. When his parents withdrew their support, he said that he used his own funds to pay for his enrolment in the Diploma of Leadership and Management.  That course commenced in June 2016, that is to say about six months after his enrolment in the Bachelor's course was cancelled in January of that year. He said that the cost of the Diploma was about $6500 and this too is probably correct. He said that he had been working part-time in a chicken factory at Austral near Lavington, being able to work about 20 hours per week on average. As far as the Tribunal can tell, the tuition fees for the Diploma would most probably have come from his earnings.

32. The Tribunal is not prepared to accept his evidence that he only worked 20 hours per week at the factory but ultimately nothing much may turn on this.  He does appear to have saved enough money to pay for the Diploma and the Tribunal accepts that he did.

33. In his oral evidence today there was a long discussion about how he has been supporting himself since his parents withdrew their financial support in or about January 2016.  As I indicated earlier, he said in his oral evidence that he had been working part-time since then, although not always in the factory at Austral.  He said, in effect, that he had worked in various occupations, including work for a courier for a couple of months.  He did assert in his evidence that he had not worked beyond 20 hours per week, this being a condition of his visa.  When it was put to him that, in fact, he could well have been working full-time in the period since June 2017, he ultimately said that he had no idea whether he had been or not.  He accepted that he has not simply been having a holiday since June 2017, a fact which also, if one accepts that evidence, appears to support the proposition that he has most probably been working on a full-time basis, or at least certainly much more than the asserted 20 hours per week.

34. Moreover, the applicant did go on to say that he wanted to complete his study program in Australia because he was now more comfortable financially.  This evidence also suggests to the Tribunal that the applicant has in fact been working since June 2017 most probably in breach of the work restriction specified on his visa.  The applicant did not suggest that he had any other source of income or any other source of funds in which to reach the point that he was now more comfortable financially.

35. In these circumstances, the conclusion is almost irresistible that the applicant has indeed been working otherwise than on a part-time basis since June 2017.

36. The applicant said that he wanted to complete his study in Australia and that he "wanted one more chance" but, in this case, the Tribunal has an applicant who, on any view, has had an ample opportunity to get his study program back on track. The compelling inference is that he has, in effect, been malingering in the sense that he has not been pursuing a study program in Australia for which his visa was designed to enable him to do and that he has been, most probably, working on a full-time basis since he completed the Diploma in June 2017. He has, on any view, had an ample opportunity to regularise his enrolment status, or of course to return to India which, in the Tribunal's view, is what he should have done in circumstances such as these.

37. The simple and clear fact in this case is that there are no extenuating circumstances in which the initial breach occurred and indeed his subsequent conduct, that is to say his conduct since the Delegate's decision, has only exacerbated his situation and made it quite impossible for the Tribunal to excuse the initial breach or otherwise discount it. The fact that he has not been enrolled in a course of study since the Delegate made his decision in May 2018, now almost 18 months ago, is an aggravating factor.  It is certainly a very relevant matter to take into consideration at the discretionary stage.

38. As noted earlier, the applicant's wife also gave evidence. They met in May 2017 and have been in a relationship since. She confirmed that the applicant's parents refused to pay his fees saying either that he told her that they could not afford to do so or they told her that directly in conversation with her. The applicant's wife went on to say that she has been encouraging him to re-engage with his studies and that she, and I think her family, would also be prepared to support him moving forward.  While it may well be that she has been encouraging him in that way, the Tribunal is not able to make any findings about what if any financial assistance he might receive, nor can it say with any certainty as to where this might come from. Concerns arise because the applicant's wife has given evidence inconsistent with the evidence which the applicant himself gave concerning his parents ability to fund his education in Australia. So, obviously, concerns exist about the reliability of the evidence given by the applicant's wife.

1. In any event, as I have said, the Tribunal must proceed in this case on the basis that the applicant has had more than ample opportunity to put his study program back on track and perform an undertaking which he gave to the Australian Government when he obtained the (573) visa in the first place.  Technically speaking, he should have pursued Higher Education Sector studies in Australia which he very clearly has not done.  Instead, he regressed into a vocational program by enrolling in the Diploma.  Furthermore that course finished in June 2017, now more than two and a half years ago.  In this case the tribunal simply has no evidence, and certainly no acceptable evidence, which can possibly ameliorate let alone excuse such a prolonged gap in productive study, or for that matter any study. In the Tribunal’s view, a period as long as this one is a very weighty, if not overwhelming factor, in the circumstances of this case. It is clear from what the Tribunal has already said that the applicant came out to Australia to study in the Higher Education sector; he did not come out here to spend most of his time since June 2017 working or doing something else which did not involve productive study at that or any other level.

2. So far as the extent of compliance with visa conditions is concerned, again the Tribunal has concerns about whether other conditions have in fact been complied with. The applicant accepted that he had a work restriction attaching to his visa and the Tribunal has real concerns as to whether this restriction has been complied with. But, in any event, and on any view, he has not complied with condition 8202, the non-compliance has been extensive and is largely if not completely unexplained, at least in the sense of there being no extenuating or ameliorating circumstances. 

3. It appears to the Tribunal that what the applicant should have done was to return to India when it became apparent that he did not want to or could not proceed with the Bachelor's course.  He knew then that his parents would not continue to support him. He decided to press on with and complete the Diploma. But, as I have said, that course finished in June 2017 and he has not been enrolled since.  The extent of this non-compliance is self-evident and overwhelming in the Tribunal's view there being no other countervailing factor of sufficient weight in the overall circumstances of this case.

4. As to the degree of hardship that may be caused to the applicant and his family, the Tribunal recognises and takes into account that the applicant’s parents have spent money on his education in Australia and that they would no doubt have been disappointed with the fact that he decided not to proceed with the Bachelor's course.  The Tribunal notes that the applicant has not explained why he did not want to undertake that course in circumstances where he had enrolled in it with the agreement of his parents. So, there is a degree of hardship certainly to his family which involves disappointed expectations. Whilst these must be taken into account, these factors can hardly be said to outweigh the extent of the non-compliance, unexplained as it is. The Tribunal is prepared to accept the applicant's evidence that his parents were disappointed and that they did withdraw their financial support when he decided not to go ahead with the Bachelor’s course but these are things which he has brought on himself and, at the end of the day, cannot give them any great weight.

5. So far as the applicant's past and present behaviour towards the Department is concerned, the Delegate himself does not seem to have had any concerns about this.  So, the Tribunal can have no particular concerns about it either.  This is very much a matter for the Department.  The fact that the applicant did not respond to the NOICC, one would have thought, would have been a factor, but the Department did not regard it to be of any great significance so the Tribunal does not regard it to be of any great weight either.

6. So far as other relevant matters are concerned, I have already indicated and I think made it abundantly clear that the Tribunal is left in the situation in this case where this particular applicant simply comes along to the hearing and presents a case which consists entirely of uncorroborated assertions. This is a relevant matter to take into account, at least in the assessment of the applicant's credibility and reliability as a witness, and ultimately on whether the Tribunal can be satisfied that what the applicant has said is in fact true. There are parts of his evidence which the Tribunal does accept, but there are other parts which it does not.  The Tribunal does not accept that the applicant really wants to complete his study, notwithstanding the influence which his wife may have on him now.  It simply cannot accept an assertion to that effect against the background of this applicant not having been enrolled in a registered course since June 2017.It may well be that ultimately the fact that he is now married to someone who is encouraging him will be a factor of some importance further down the track, but the Tribunal is simply unable to accept that any further opportunity should be given to the applicant at this stage in these circumstances.

7. There are no other persons in Australia whose visas would only be cancelled under section 140, so that appears to be an irrelevant consideration. 

8. As to the mandatory legal consequences to a cancellation decision, the Delegate, I think, has adequately dealt with this matter in the decision. The applicant, of course, will be an unlawful citizen and will be liable to detention if he does not voluntarily depart.  But, as the Delegate has pointed out, I think, and in any event, it is clearly the case that the mandatory legal consequences to a cancellation decision are matters which the applicant must take responsibility for and are the result of the legislation.

9. As to whether there are any relevant international agreements that would be breached as a result of the cancelation, the Tribunal notes that although the applicant has recently married, they do not appear to have any children.

10. As to any other relevant matters, this is a case where the initial breach took place in circumstances where the applicant had not been enrolled in a registered course for some nine months by the time the Delegate made her decision. Nothing has occurred since that decision which can be regarded as being in any way favourable to the applicant. The fact that he has continued to be not enrolled for a further period of some 18 months or thereabouts can hardly be said to support his case in circumstances where this is largely unexplained.

11. This is a case in which the Tribunal is left with no real option but to find that this applicant has been malingering since the Delegate cancelled his visa.  The Tribunal finds that it is more probable than not that he has been working since that time otherwise than in accordance with the work restriction on his visa and that this is the reason why he has remained in Australia, and that he would be likely to remain in breach that restriction if given another chance. This is, in the Tribunal’s view, a very relevant matter at the discretionary stage and not inconsiderable weight is given to it. The Tribunal is not prepared to accept his evidence that he really wants to get his studies back on track.

12. Overall, the circumstances in this case are seen to weigh heavily in favour of the Tribunal exercising its discretion to affirm the cancellation decision.

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

    DECISION

14. The Tribunal accordingly affirms the decision under review.

    Michael Bradford
    Member