Manbir Singh (Migration)

[2018] AATA 5426

Manbir Singh (Migration) [2018] AATA 5426 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  MANBIR SINGH

CASE NUMBER:  1620630

HOME AFFAIRS REFERENCE(S):           BCC2016/3366363

MEMBER:Mr S Norman

DATE:20 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2018 at 11:40am

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 – academic record – failed five out of eleven subjects – two ‘absent fails’ – genuine student – failed to maintain enrolment for 13 months – degree of hardship – 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 29 November 2016 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 decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant had 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 14 November 2018, to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4. 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

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 (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 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).

7. 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 4 November 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 7 November 2016[1] (and as set out in the delegate’s decision), 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 24 September 2015. Therefore it appeared he had breached the requirements in condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act.

   [1] Department – folio 4.

8. The applicant responded to the NOICC letter (by his migration agent). He disputed there were grounds for the cancellation as he was enrolled in the English for Academic Purposes – Beginner to Advanced course and a Bachelor of Business course (these enrolments were obtained after the applicant received the NOICC letter).

9. At hearing, the Tribunal put to the applicant it appeared there were grounds to consider cancelling his Student visa (given he had failed to maintain enrolment in a registered course of study for over 13 months at the time the NOICC was issued). The applicant then referred to the matters discussed below.

10. That being said, based 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)(a).

    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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

12. Regarding the purpose of the applicant’s travel to and residence in Australia, he said he proposed to travel to and reside in Australia for the purposes of study (the applicant arrived in Australia on 14 November 2014). However the evidence on PRISMS indicated the applicant had not maintained enrolment in a registered course of study from 24 September 2015 until 14 November 2016. The delegate (and now the Tribunal) noted the applicant re-enrolled in a course after the NOICC was issued to him on 7 November 2016. In his response to the NOICC, he had provided copies of COEs for English for Academic Purposes – Beginner to Advanced course and a Bachelor of Business. However, given the applicant did not maintain enrolment in appropriate course for some 13 months, the Tribunal gives this little weight.

13. By migration agent email dated 13 November 2018,[2] and migration agent submission of the same date,[3] the applicant lodged:

    ·An Enrolment Confirmation from Universal Business School Sydney stating the applicant commenced a Bachelor of Business (Major in Management) on 16 January 2017 and was due to finish on 13 December 2019.[4] By migration agent submission of the 13 November 2018,[5] it was claimed this ‘weighs in favour of the applicant’. 

    ·An Academic Transcript from the Universal Business School Sydney dated 18 August 2018,[6] noting the applicant had attempted 11 subjects; failed three; and was awarded an absent fail for another two. The Transcript indicated the applicant had (barely) passed six subjects, and he had failed five subjects.

    [2] Tribunal – folio 58.

    [3] Tribunal – from folio 49.

    [4] Tribunal – folio 56. 

    [5] Tribunal – from folio 49.

    [6] Tribunal – folio 50.

14. By migration agent submission of the 13 November 2018,[7] it was conceded the applicant had ‘not been an exemplary student’.

    [7] Tribunal – from folio 49.

15. At hearing, the applicant confirmed the above information was correct. The Tribunal then put to him that given he had commenced the most recent course/s after his Student visa was cancelled on 29 November 2016 , and (words to the effect) given he would have understood it was important to substantiate his claim to now be a genuine student, the fact that he had not only failed five out of eleven subjects, but that two of these were ‘absent fails’, may indicate that his present intention to remain in Australia, was not for the purpose of study. The applicant then said he wished to continue to study in Australia. He said inter alia he was late handing in one assignment and was awarded an absent fail. However, as noted at hearing, the applicant only worked 16-18 hours per week as a labourer, he resided with persons in Sydney (two being extended family members), and it did not appear there was any reasonable excuse for having been awarded two absent fails.

16. The applicant’s agent said the applicant was forthright during the hearing and it might be accepted that he now intends to remain in Australia for the purposes of his study. However, and with respect, after considering all the evidence the Tribunal is not satisfied this is correct. Where as in this case, an applicant’s Student visa has been cancelled, and that applicant is subsequently awarded two absent fails, then the Tribunal is not satisfied this supports the claim the applicant’s intention in remaining in Australia, is for the purposes of study. Therefore, based on the evidence, the Tribunal is not satisfied the applicant’s intention for remaining in Australia is for the purposes of study.

17. Regarding the extent to which the applicant complied with his visa conditions, as noted above, the applicant did not maintain enrolment in registered course of study from 24 September 2015 until 14 November 2016; and he only re-enrolled in a registered course after the NOICC was issued to him.  The Tribunal believes this breach to be significant.

18. Regarding the degree of hardship the applicant or his family may suffer if his visa is cancelled, at hearing the applicant said both his parents were working and that they were (words to the effect) ‘well off in India’. He did say they would wish him to continue his studies in Australia and would be disappointed if he was unable to do so. In the circumstances, the Tribunal accepts the applicant or his family may suffer some limited hardship if his visa is cancelled. He may also be subject to detention under s.189 and removal under s.198 of the Act. However, again based on the evidence before the Tribunal I am not satisfied he would be subject to indefinite detention (the Tribunal notes he returned to India in 2016). The Tribunal also understands the applicant could temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.

19. In his response to the NOICC letter, the applicant said the cancellation of his visa will cause him to ‘suffer insecurity’ and that he had a genuine intention to complete his studies in Australia. However, at hearing, he confirmed this referred to the issues already discussed herein.

20. Next, and regarding the circumstances in which the ground for cancellation arose, in his response to the NOICC letter, the (now) 23-year-old applicant said he faced difficulties with his studies in Australia, and that he was feeling homesick. He said he visited his home country in January 2016 and had consulted a doctor. Upon his return to Australia in March 2016, he only then became aware that his visa had been cancelled. Since that time he had sought to be re-enrolled with various colleges and universities.  In the migration agent letter of 21 November 2016,[8] it was claimed the applicant had ‘tried his best to cope with Australian study and believed that methods and procedures in Australia were different to those in his home country and he then failed three subjects’. He then felt depressed, attempted fewer subjects, but only passed two subjects in March 2015. He then returned to see his parents in January 2016 and started to feel better. His doctor prescribed him with medication.

    [8] Department – folio 15.

21. By migration agent email dated 13 November 2018,[9] and migration agent submission of the same date, the following was submitted/lodged:[10]

    ·A medical certificate (Notes) for the applicant issued by the Dhillon Neuro Psychiatric Clinic dated 2 February 2016[11], plus follow up notes. It was claimed the applicant suffered from depression (medication prescribed) and he was advised to ‘take time off’.

    [9] Tribunal – folio 58.

    [10] Tribunal – from folio 49.

    [11] Tribunal – from folio 54. 

22. The Tribunal understands the applicant ceased his enrolment in a registered course of study in or around 24 September 2015. At hearing, he said he returned to India as he was feeling depressed, that he attended a doctor on around three occasions while there (at two week intervals), and that he was prescribed medication for his depression (and which he continued to take for one month after returning to Australia in March 2016). When then asked why he did not enrol in a course until late 2016, he said that at the time he had lost the motivation to study, but that after receiving the NOICC (dated 7 November 2016), that had motivated him to re-enrol (which he had done quickly). The applicant’s academic progress after re-enrolling have been discussed above.

23. At hearing, the applicant also said that in an effort to remedy his circumstances, he had attended his education/migration agent. However, he had not (ie) approached the Department to discuss his circumstances, and neither had he sought assistance from a medical practitioner or (apparently) a counsellor, until after he returned to India in early 2016. That being said, the Tribunal accepts the applicant lost motivation to study in 2015 and most of 2016, and that he only sought to re-enrol after he received the NOICC from the Department.

24. 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 was cancelled.

25. The Tribunal notes that if the applicant’s 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 could not be granted a temporary visa for three years from the date of cancellation.  The Tribunal notes these are consequences intended by parliament when an applicant’s visa is cancelled.

26. Next, by migration agent email dated 13 November 2018,[12] and migration agent submission of the same date,[13] the applicant lodged:

    ·A letter from Federation University Australia dated 21 August 2015, noting the applicant failed to appeal his exclusion from the Bachelor of Commerce (Accounting) degree (semester 1, 2015).[14] By migration agent submission of 13 November 2018,[15] it was said the applicant failed the same subject twice and was excluded, however, he believes he is a ‘good student’. He was also scared to tell his parents but eventually informed them.

    [12] Tribunal – folio 58.

    [13] Tribunal – from folio 49.

    [14] Tribunal – folio 55.

    [15] Tribunal – from folio 49.

27. At hearing, the applicant said he felt depressed/stressed as a result of being excluded from Federation University Australia. He confirmed he had been ‘excluded’ due to having failed the same subject on two occasions. The Tribunal accepts the applicant may have been depressed/stressed during this period (particularly late 2015), and I accept he was excluded from Federation University Australia for the reasons he claimed.  However, based on all the findings herein, I do not accept this depression/stress explains why the applicant breached his visa conditions for the length of time he did.

    ·A Proficiency Certificate from Metro English College stating the applicant had ‘enrolled in English for Academic Purposes’ for six weeks between 14 November 2016 & 13 January 2017[16]

    [16] Tribunal – folio 52. 

28. At hearing, the applicant explained his English language competency had ‘expired’ prior to recommencing his studies. Accordingly, he was obligated to again obtain an English language competency certificate. The Tribunal notes this evidence, but I am not satisfied this overcomes the Tribunal’s concerns about the applicant that have been expressed herein.

    ·A Punjab School Education Board certificate, noting secondary school achievements[17]

    [17] Tribunal – folio 51.

29. At hearing, the applicant said he lodged this certificate to establish that he was a good student. However, he none-the-less also conceded he faced difficulties with his studies in Australia, and in the migration agent letter of 21 November 2016,[18] it was said the applicant had ‘tried his best to cope with Australian study and believed that methods and procedures in Australia were different to those in his home country and he then failed three subjects’. The Tribunal also notes it has discussed the applicant’s more recent academic progress above.

    [18] Department – folio 15.

30. It was also claimed the applicant had lodged a statutory declaration dated 12 November 2018 (and a copy of same was lodged at the Tribunal hearing). When discussed at the end of the hearing, the applicant conceded (and after fully considering same, the Tribunal now accepts) that all material issues included in the statutory declaration had been discussed at hearing.

    Summary:

31. The Tribunal accepts the applicant ‘lost motivation’ to study in 2015 and much of 2016. However, he ‘found out’ his Student visa was cancelled in March 2016 and he was apparently ‘feeling better’ from that time. He said he was unable to enrol in any course in the first semester of 2016, however he did not enrol in a course in second semester 2016, and in fact, only sought to enrol in a registered course of study after receiving the NOICC (in November 2016). The Tribunal accepts that since that time the applicant has made some efforts to maintain academic progress in Australia. He also said he hopes to complete his degree in December 2019. However, in the eleven subjects he had attempted, it appeared he had barely passed six and had failed five subjects (two of which were absent fails). The applicant said he would be able to work during the holidays to ensure he completed his degree by December 2019, but based on the accepted evidence herein, the Tribunal is not satisfied the applicant has the capacity to do so. As noted at hearing, India is one of the world’s fastest growing (large) economies,[19] and though the education attainable in India may not be as well regarded as some of the education that may be obtained in Australia, based on the evidence accepted herein, it might be the applicant’s future development and interests could be best served by seeking to further himself with the guidance of his family in India.

    [19] DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, at [2.13].

32. When considering the circumstances of this case as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

33. 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.