NIRVAIR SINGH (Migration)

[2018] AATA 3943

NIRVAIR SINGH (Migration) [2018] AATA 3943 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master NIRVAIR SINGH

CASE NUMBER:  1711183

HOME AFFAIRS REFERENCE(S):           BCC2017/418759

MEMBER:Christine Kannis

DATE:20 August 2018

PLACE OF DECISION:  Perth

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

Statement made on 20 August 2018 at 1:54pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – unsatisfactory attendance – vocational level courses – ill health – enrolment history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

CASES
Liu v MIMIA[2003] FCA 1170.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 May 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 26 June 2018 to give evidence and present arguments.  

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. On 5 February 2015 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

9. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 8 July 2016. He was enrolled in a Bachelor of Business, a Diploma of Hospitality and Certificates III and IV in Commercial Cookery, all of which were cancelled on 8 July 2016. The variation reasons for the Bachelor of Business, the Diploma of Hospitality and Certificate IV were stated to be non-commencement of studies. The variation reason for the Certificate III was stated to be unsatisfactory attendance.

10. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 8 July 2016. The Tribunal finds that he breached condition8202(2)(a) of his visa.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

13. On  10 March 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

14. The applicant did not respond to the NOICC.

15. Prior to the hearing the applicant’s representative provided documentation which included but was not limited to a written submission, two CoEs and a medical report.

16. The written submission provided the following information in support of the application for review:

    ·The applicant finished his first course, a Certificate IV in Business at TAFE but failed some units. He was disappointed with his results and decided to change service provider.

    ·The applicant joined Kingdom College to study a Diploma of Business. He completed the course but he did not receive a certificate because the College had some issues with the authorities.

    ·The applicant consulted a local education agent who advised him to join a training based course because he was not having success in Business studies. He joined a Commercial Cookery Certificate III at Cambridge International College in 2016.

    ·During this time the applicant’s mother fell sick with a heart problem. The applicant visited his mother in India and returned to Australia to resume his studies.

    ·The applicant was stressed due to his mother’s conditions and he could not focus on his studies. He could not continue his studies.

    ·Cambridge International College cancelled the applicant’s enrolment because he did not attend his classes.

    ·When the applicant recovered from the stressful period he consulted another education agent for admission into another service provider. This agent kept him waiting three to four months and assured him of admission into the right college.

    ·When he received the NOICC the education agent asked him to ignore it and assured him that his admission was underway.

    ·When the applicant’s visa was cancelled his previous migration agent advised him he was not permitted to study because he did not hold a valid visa.

    ·The applicant consulted the current representative in 2017 and they asked him to seek permission from the Department to study.

    ·The applicant commenced a Carpentry course at Everthought Education however due to ill health he withdrew from the college. He started a Certificate IV in Business at Australian Technical College (ATC) and is currently progressing well in this vocational level course. His current education provider does not offer higher studies and he has been trying to gain admission into a Bachelor’s degree but has not been successful.

    ·His enrolment in Certificate IV and Diploma of Business with ATC will be credited towards a Bachelor of Business. 

    ·The applicant was not given proper guidance and advice by previous professionals.

    ·If his visa is cancelled the applicant will suffer hardship because he will not be able to apply for a visa to return to study in Australia in the near future. In addition this will cause him and his family embarrassment and displeasure as well as financial and emotional hardship. It will also reflect that the Australian community has no regard to compelling circumstances beyond control.

    ·The applicant will also suffer hardship if he returns to India without qualification because he would have wasted time, money and effort and it will have a severe impact on his professional career.

17. The CoEs provided were created on 3 April 2018 and were for the Certificate IV in Business and Diploma of Business and both courses were in the Vocational, Education and Training Sector.

18. The medical report provided was dated 10 August 2017. In the report Dr Sandeep advised that Gurmeet Kaur was suffering from a heart problem and that she had been treated at the clinic for more than a year. Dr Sandeep said the heart problem had increased and referred to further investigation and treatment.

19. The Tribunal asked the applicant the reason he did not respond to the NOICC. He said that when he received the NOICC he went to a few consultants who told him the matter was not serious and said he did not need to respond. He said he was advised that all he needed to do was obtain a CoE and his visa would not be cancelled.

20. The Tribunal pointed out that the NOICC  stated that he must provide a written response within five working days  and that if he did not respond a decision on whether to cancel his visa would be made. He was also advised of the consequences of a visa cancellation. The applicant insisted he was advised that the matter was not serious and said he relied on consultants because he was not sure of the law.

21. When the Tribunal asked the applicant about his lack of response to the NOICC he initially said he kept studying and finished his Diploma of Business at Kingdom College at that time. The Tribunal pointed out that it appeared from the written submission that he had completed the course at Kingdom College well before the NOICC was issued.  The applicant then said he told the consultants that he did not have a current CoE and they told him to wait for the Department’s decision and then he could change education provider.

22. The Tribunal asked the applicant about his study at Kingdom College. He said his enrolment was cancelled in September or October 2015. He asked consultants for assistance and he was advised to enrol in Cookery courses. After studying Cookery for three months at Cambridge International College he returned to India to visit his mother who was unwell with heart problems. When he returned to Australia on 11 May 2016 he was stressed and homesick and was unable to attend his classes for three or four months.

23. The Tribunal asked the applicant whether he sought medical assistance for his stress. He said he saw a doctor two or three times and was advised to rest.  

24. The Tribunal asked the applicant whether he contacted his education provider or the Department to discuss his circumstances. He said he didn’t because he stayed in his room for three or four months.

25. The Tribunal asked the applicant about the cancellation of his enrolment in the Certificate III in Commercial Cookery because of unsatisfactory attendance. He said he received a number of emails from Cambridge International College before cancellation advising him that his enrolment would be cancelled because he was not attending classes. He said he did nothing and his enrolment was cancelled.

26. In August 2016 he went to see a consultant who advised him that he needed to obtain a CoE. The consultant told him he was obtaining a CoE from a Melbourne education provider for him. The consultant kept him waiting three or four months and eventually told him that he needed to enrol in the next semester commencing in January 2017. He said he asked for admission into any college but he was then advised that the next semester commenced in April 2017.

27. The Tribunal put to the applicant that he would have known he was in breach of a condition of his visa following cancellation of his enrolment in the Certificate III in Commercial Cookery. He said he was aware of the breach and he went to see a consultant for advice and assistance. He said despite the consultant indicating they were obtaining a CoE for him, several months passed without a CoE being issued.

28. When the applicant’s visa was cancelled, more than ten months after cancellation of his enrolment, he did not attempt to enrol in further study because his previous consultants did not advise him that he could seek permission to study pending the outcome of this application for review.

29. The Tribunal asked the applicant about his enrolment in the Carpentry course. He said he enrolled in the course in January 2018 but due to ill health he was not able to manage the course and his enrolment was cancelled. When asked about his ill health he said he is unable to stand on his legs.

30. The applicant is currently enrolled in a Certificate IV in Business and a Diploma of Business. These are courses in the Vocational, Education and Training Sector which is not the sector in which the applicant was granted a visa. The applicant’s representative told the Tribunal that the applicant currently has an application to Sheridan College to study a Bachelor of Business however he is not yet enrolled and is awaiting approval.

31. The Tribunal asked the applicant the reason he came to Australia to study. He said he wants to have his own restaurant business in India.

32. Regarding the potential hardship which would result from the cancellation of his visa, the applicant said he is the only son of his parents and if he returns to India without a qualification he will be broken.

33. Noting the several changes in education providers and courses the Tribunal asked the applicant the reason he did not contact the Department about changing his enrolment or after he was aware that he was no longer enrolled in a course.  He said he relied on consultants. The applicant’s representative told the Tribunal that the applicant kept using consultants because that is what international students do.

34. On 27 June 2018 the Tribunal received an email from the applicant. The information contained in the email was not materially different to the oral evidence provided at the hearing.

    Conclusion

35. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s oral evidence and in the documentary evidence provided prior to the hearing.

36. The applicant did not dispute that he was aware he was in breach of a condition of his visa following cancellation of his enrolment at Cambridge International College. He said the cancellation was due to his unsatisfactory attendance and this was the consequence of him feeling stressed and homesick. The applicant and his representative referred to the consultants previously used by the applicant and said they provided poor advice/assistance.

37. The purpose of the higher education student visa is to enable the student to undertake study at a higher education level. The applicant ceased to be enrolled in a Higher Education Sector course on 8 July 2016 and more than nine months elapsed from that date until the NOICC was issued. The Tribunal accepts that the applicant relied on the advice of  education consultants however considers it was his responsibility to ensure he understood the conditions attached to his visa and to ensure that he complied with those conditions.

38. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

39. The evidence did not demonstrate that the ground for cancellation arose due to circumstances beyond the applicant’s control.  Whilst the Tribunal accepts that the applicant’s mother was unwell for at least 12 months prior to 10 August 2017, no medical evidence was provided to substantiate the applicant’s claim that his stress over her health resulted in his inability to attend classes or that it impacted on his ability to undertake his study. There was nothing before the Tribunal to indicate that the applicant discussed deferral of his studies on compassionate grounds with his education provider.

40. The Tribunal had regard to the applicant’s enrolment history which included Business, Cookery and Carpentry courses. The applicant has been enrolled with several education providers and PRISMS shows he has completed only two courses.

41. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant because he will be unable to complete his Business studies in Australia. In the email from the applicant received on 27 June 2018 he referred to the financial loss if his visa is cancelled and said his parents’ hard-earned money would be wasted. The Tribunal accepts that the applicant and his parents will suffer hardship however, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

42. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

43. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

44. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

45. The Tribunal noted the applicant’s current enrolment however these courses are not in the   sector for which his visa was granted. 

46. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

47. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.