Powar (Migration)

[2019] AATA 3965

Powar (Migration) [2019] AATA 3965 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh Powar

CASE NUMBER:  1703500

HOME AFFAIRS REFERENCE(S):           bcc2016/4206057

MEMBER:Wendy Banfield

DATE:18 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 June 2019 at 9:37pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in course – loss of financial support – death certificate provided – engaging in work – no compelling reasons to stay in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
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 24 February 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).

   Background

2. The applicant is a citizen of India and is currently 28 years old. He came to Australia on 15 February 2014 and has remained on-shore since then. After arriving in Australia the applicant ceased enrolment in higher education and enrolled in vocational study instead. The applicant applied for a Subclass 572 Visa but the application was unsuccessful. On 22 September 2014, the applicant’s Student Visa was cancelled for non-compliance with condition 8516 that required him to enrol in higher education. On 16 December 2014 the Tribunal (differently constituted) set aside the decision to cancel the applicant’s Subclass 573 Visa. At the time of the Tribunal’s decision not to cancel the visa, the applicant was enrolled in a course of study.

3. The delegate cancelled the visa on the basis that the applicant was not enrolled in a course of study from 7 February 2016 to 14 February 2017 as required by the conditions of his Student Visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant did not make any submissions to the Tribunal prior to the hearing however, the Tribunal has taken into account a written statement and a death certificate that was provided to the Department prior to the visa being cancelled.

6. In his written statement to the Department, the applicant claimed he had been a genuine student who had always maintained proper enrolment. He advised that his father passed away in July 2014 shortly after he came to Australia and this had an impact upon him. He had withdrawn from a Diploma of IT, enrolled in a vocational course and applied for a Subclass 572 Visa which was refused. The applicant said he did not receive any advice from his education provider and they cancelled his enrolment. He said if the visa is cancelled his mother would be disgraced which would cause him hardship. The applicant said he is a good student and is willing to complete his studies and comply with visa conditions.

   The hearing

7. The applicant advised he first came to Australia in February 2014. He said he was enrolled in a Diploma of IT at UTS but later transferred to a college in Parramatta because the course was easier. The applicant said he had applied to change his Visa from a Subclass 573 to a 572 but this was refused. According to the applicant his father passed away in 2014 which caused him financial difficulty as his father had supported him. The applicant said he has his mother brother and two sisters in India.

8. The applicant said the college he made a request to the college he was attending to pay his fees in instalments but was unable to. He said the college required fees in advance and as a result he did not continue to attend and the education provider contacted the Department. The Tribunal asked the applicant whether he has completed any courses of study in Australia and he said he had been really stressed. The applicant said although his father passed away in July 2014 his family did not tell him until after the funeral which is why he did not go back to India. He said at the time he was on a Bridging Visa and was concerned that if he left he would be unable to come back.

9. The Tribunal asked the applicant to explain what he was doing during the period when he was not enrolled to study. He advised that he had been working in order to try and help his family. He said he needed money for his own rent as well. According to the applicant his brother now has a job and has been able to help him out in this regard the applicant said that he is now in a position to enrol in a college. The Tribunal advised the applicant he must have been aware that he was not able to remain in Australia while holding a Student Visa but not studying. The applicant repeated that he had asked his education provider if he could pay his fees in instalments but they did not listen. The applicant claimed that he did get a COE and had paid $7000 towards a degree but he first had to complete a Diploma of Business Management. The applicant said he would still like to study a Bachelor degree and up to a Masters if possible.

10. Regarding any compelling need to stay in Australia, the applicant said he wants to start studying again and it had been a big mistake to not attend college and work instead. The applicant claimed he had complied with all other visa conditions and had only worked 20 hours per week except while holding a Bridging Visa when he had for work rights. The applicant advised he had spent five years in Australia and if he had to return without a degree he will not be able to get the job which would cause him hardship. He referred again to having paid $7000 towards a degree and declared he had studied the first semester of the Diploma that led to a Bachelor degree. The applicant advised that he needs to start everything again and obtain a new COE.

11. The applicant said he has a partner in Australia and was married two years ago. He said his partner has her own Student Visa and has a Master’s degree in Business. The applicant said if he gets a chance he may apply for a Spouse Visa if his wife becomes a resident.

12. 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

13. 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?

14. 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).

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

16. The applicant gave evidence that he had trouble paying fees to his education provider and he had ceased attending. He did not deny he had not been enrolled to study from 7 February 2016 to 14 February 2017, a period of one year.  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

17. 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’

    ·     the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. In this case the Tribunal accepts that the applicant’s original purpose in travelling to and staying in Australia was to study.

19. The applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant told the Tribunal he wants to start studying again and it had been a mistake to work instead of attending college. He undertook both in his written statement to the Department and to the Tribunal that he intended to return to his studies and he still wants to complete a Bachelor degree and a possibly a Masters. However, the Tribunal notes the applicant has not provided any evidence to indicate he has completed any course of study in the five year since he arrived in Australia. Although the applicant may have some difficulty obtaining work in his home country without completing studies in Australia, the Tribunal considers the applicant’s evidence does not demonstrate a powerful or convincing reason for needing to stay. For these reasons, the Tribunal does not give any weight to the applicant’s claims and is not satisfied he has a compelling need to remain in Australia. 

    ·     the extent of compliance with visa conditions

    The applicant failed to maintain enrolment in an approved course of study which is a fundamental breach of a student visa and weighs against the applicant in this case.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

20. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant advised he had spent five years in Australia and if he had to return without a degree he will not be able to get the job He said he had paid $7000 towards a degree and his mother would be disgraced if the visa is cancelled.

21. The Tribunal acknowledges the cancellation of the visa may cause a degree of financial and emotional hardship and the Tribunal has given some weight in favour of the applicant in assessing whether the discretion to cancel the visa should be exercised.

22. The Tribunal is takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

23. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student Visa but did not continue enrolment in an approved course of study for a period of 12 months. The applicant said that after he arrived in Australia, he withdrew from a Diploma of IT and enrolled in vocational education. As a result of not been granted a Subclass 572 visa the applicant was required to maintain his enrolment in higher education but as he did not do so, his visa was cancelled. The applicant applied to the Tribunal for review of the decision and his visa was reinstated. The applicant then experienced difficulty paying the fees required by his education provider and as a result he discontinued his attendance. This had occurred because his father who had supported him financially passed away in July 2014.

24. The applicant’s evidence was that during the period in which he was not enrolled to study, he had been working in order to support his family in India. He advised that since then his brother has obtained employment and has been in a position to provide the required support. The applicant conceded that it had been a mistake to work and not study. The Tribunal has considered the circumstances in which the grounds for cancellation arose and is not satisfied they were due to circumstances beyond the applicant’s control. The applicant was aware he would be in breach of visa conditions by failing to maintain enrolment in a course of study. Although the Tribunal sympathises with the applicant’s situation, particularly following the death of his father it was not open to him to discontinue his studies and work instead. This was not the purpose for which the visa was granted. The applicant could have deferred his studies and returned to India until he was in a position to resume. Although the applicant claimed in his written submission to the Department that he was a good student who had always maintained enrolment, the evidence does not support this being the case.

25. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

    ·     past and present behaviour of the visa holder towards the department

    There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.

    ·     whether there would be consequential cancellations under s.140

26. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act. The applicant advised he had a partner in Australia but she holds her own Student Visa.

    ·     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 cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

28. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

29. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

    The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled in an approved course of study in breach of visa conditions. The applicant undertook employment during the period when he was not studying. This was not the purpose for which the Student Visa was granted and the Tribunal finds it weighs against the applicant in the Tribunal’s assessment of whether to exercise the discretion to cancel the visa.

    Conclusion

30. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.

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

    DECISION

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

    Wendy Banfield
    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.