Rajveer Singh (Migration)

[2019] AATA 4094

Rajveer Singh (Migration) [2019] AATA 4094 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Rajveer Singh

CASE NUMBER:  1911148

HOME AFFAIRS REFERENCE(S):           BCC2019/186307

MEMBER:Mark Bishop

DATE:4 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 September 2019 at 3:29pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of remaining in Australia – father’s medical condition – significant period of non-enrolment – 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 26 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 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 3 September 2019.  The applicant’s wife gave evidence on his behalf. Her name is Harinderjit  Kaur

4. The applicant provided a copy of the decision record to the Tribunal.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed

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.

   Did the applicant comply with Condition 8202?

7. 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).

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

9. The applicant was notified of the intention to consider cancellation (NOICC) and the notice invited the applicant to respond in writing. The applicant did respond. The applicant responded on 26 April 2019.

10. He advised he had been making arrangements to continue his studies in Australia. The delegate made a finding the applicant did not provide any evidence of having made any enquiries or submitting any applications for enrolment in any course in Australia. The delegate made a finding the applicant had not studied or been enrolled in a registered course of study in Australia for a period of approximately 11 months. In response to the NOICC the applicant advised he decided to “stay away” from his studies during the period of non-compliance.

11. The Tribunal notes that student visas are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. The student visa program exists to allow for non-citizens and non-permanent residents to study in Australia.

12. The delegate made a finding that according to PRISMS the applicant had not been enrolled in a full time registered course of study from 16 May 2018 (Tf: 2).

13. The Tribunal asked the applicant to comment on the detail in paragraph 12 above. The applicant advised this finding was correct.

14. Having regard to the findings of the delegate as outlined in paragraph 12 above and the evidence of the applicant as outlined in paragraph 13 above, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 16 May 2018. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

15. 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).

16. 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

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’

    Consideration of discretion

18. 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

19. The applicant got married in February 2019. His wife is an Australian citizen. The applicant advised he came to Australia in February 2014 for the purposes of study and completed two Certificate level courses in 2017. He advised he has not completed any courses since that time. Both his parents had surgery. He was unable to return to India as costs of his parents treatment prohibited the granting of financial assistance for an airfare. His now wife was diagnosed with PTSD. She is now better. She was living on the gold coast at the time. The applicant was living in Melbourne. His wife moved to Melbourne in January 2019. His wife had been a family friend. His COE was cancelled in 2018. His student visa was cancelled in April 2019. He could not re-enrol because of the illness of his father and his girlfriend’s PTSD. His father is now recovered. His mother is now recovered. Things are getting better. He has not been working or studying since April 2019. The applicant advised he accepted he made mistakes by not studying.

20. The applicant advised he wished to resume study. He wished to remain in Australia with his wife. There are no dependent children.

21. The applicant did not provide any evidence to the Tribunal of the illness of his father and mother. He did not provide any evidence that confirmed his wife suffered from PTSD prior to re-locating to Melbourne. He did provide some supporting documentation to the Department that referenced illnesses and treatment for a complaint of his mother. In any event the Tribunal does not have a reason to not accept the evidence of the applicant as to illness suffered by his parents and PTSD suffered by his wife in the past and the Tribunal does not make any adverse finding on this point.

22. The Tribunal acknowledges that international students may face many adjustments and challenges when studying and living in Australia. It is a reasonable expectation that any visa holder understands the conditions of a student visa and seeks assistance from the Department if required.  There is no evidence before the Tribunal that the applicant ever contacted the Department in relation to his student visa and any issues he was facing.

23. The Tribunal accepts that the applicant wishes to continue residence in Australia with his new wife.  It is entirely natural. The Tribunal notes the applicant got married in April of 2019 in the full knowledge that his student visa had been cancelled because of failure to maintain enrolment in a course of study. The Tribunal is aware that it was at least a possibility that that upon review the decision of the delegate might be affirmed.

24. The Tribunal accepts there may be some embarrassment or discomfort associated with a return to India after a period of residence in Australia with only minimal academic progress. The Tribunal is prepared to accept there may well be family or community disapproval. The Tribunal accepts that the applicant might regret not taking full advantage of his opportunity to study in Australia. However the personal and family discomfort or embarrassment associated with separation from his wife is both a necessary consequence of a decision (yet to be made, if it is indeed made) upon the part of his new wife (who is an Australian citizen) not to accompany her new husband to India and of the applicant’s continuing failure to adhere to conditions attached to his visa and engage in study.  The Tribunal is unable to conclude there is any compelling need to remain in Australia.

    The extent of compliance with visa conditions

25. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

26. The applicant did not provide a written statement to the Tribunal.

27. In response to the NOICC the applicant did not provide any specific hardship which he may experience if his visa is cancelled.

28. In evidence to the Tribunal the applicant advised concerning hardship he wished to remain in Australia with his wife. His wife does not wish to leave Australia. It would impact on his marriage if he had to leave Australia. He advised he was married before a celebrant in February 2019. He then went through a traditional Indian marriage ceremony in April 2019 at the Singh Sabab Temple in Tarnit. He has lived with his wife only since February 2019. It is important for him to remain in Australia as she provides him with support.

29. In evidence to the Tribunal the applicant advised he was not working. He has received $6,000 as a remittance from his parents. If he returned home it would be difficult to find work as he had not done much study in Australia. He would live at this parents’ home.

30. The cancellation of the visa may result in financial hardship as the visa holder would have no work rights and therefore no legal ability to work in Australia and gain an income. This would continue current practice as the applicant has not enjoyed work rights for some time.

31. In addition, if the Tribunal decides to cancel this visa then the visa holder may not be able to commence or complete any further study.

32. The Tribunal has given consideration to the issue of hardship. The Tribunal explored with the applicant his life in Australia and possible life back in his home country. The applicant advised he would return to his parents’ home and seek work whilst exploring options to return to Australia if necessary. He thought it might be difficult to get work because as he said he did not have any qualifications from Australia. This is not quite correct as the applicant advised the Tribunal he had completed two Certificate level courses in Commercial Cooking. The Tribunal is inclined to the view this VET education in Australia will give him the opportunity to find work in his home environs.

33. The Tribunal gives some weight to this consideration in the visa holder’s favour.

    Circumstances in which ground of cancellation arose

34. The delegate made a finding that information available on PRISMS disclosed the applicant had not been enrolled in a course of study since 16 May 2018. The date of the decision record is 26 April 2019.  The delegate made a finding this failure to maintain enrolment in a registered course of study led the applicant to being non-compliant with condition 8202 from 16 May 2018. The MA advised the Department in response to a NOICC the applicant had experienced depression from April 2018. There was no evidence provided of this claim.

35. The applicant advised the Department his mother was diagnosed with a life-threatening ailment which affected all family members. The applicant advised his mother was required to undertake a high risk operation. This was completed in June 2018. In evidence to the tribunal the applicant advised his mother had recovered.

36. The applicant also stated his father had to undertake treatment for a throat infection after June 2018 and at that time was awaiting surgery. The delegate made a finding no evidence was provided of this claim. In evidence to the Tribunal the applicant advised his father had recovered.

37. The Tribunal is aware that many international students have family members who may become unwell and need medical treatment. It is a natural consequence of the decision to study in Australia that a visa holder would not necessarily be in a position to offer direct physical comfort to members of their family if they are unwell or require medical treatment. In those circumstances contact with family members may well be limited to the use of tools of social media or exchanges of information using more traditional forms such as post. This process does not of course take the place of an immediate presence.

38. The applicant stated he was due to commence studies in May 2018. At that time he was preparing to go to India to visit his family. The delegate made a finding that Departmental records confirmed the visa holder did not take the opportunity to return to India and has remained in Australia since his most recent arrival on 10 February 2016. In evidence to the Tribunal the applicant confirmed he did not return to India.

39. The applicant stated his parents recovered from their respective illnesses and advised him to focus on his studies. The visa holder gave no indication of when his parents recovered from their illnesses, nor has he provided evidence to show he has an intention to “focus on his studies”. In evidence the applicant advised the Tribunal he was not working was not engaged in any study and was dependant on his new wife aided on occasion by remittances from his family in India. He advised he wished to resume studies again in the future.

40. The Tribunal gives a little weight to this consideration in the visa holder’s favour.

    Past and present behaviour of the visa holder towards the department

41. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    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

42. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

43. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

44. There is nothing before the Tribunal to indicate there are international obligations to consider.

45. Any other relevant matters

46. The Tribunal inquired if the applicant wished to make further submissions. The applicant repeated previous comments that he had made mistakes in the past, wished to remain in Australia and support his wife.

47. The applicant’s wife agreed her husband had made mistakes in the past and she said deserved a second chance to make something of himself. She has been an Australian citizen since 2014. She concurred with her husband’s evidence.

48. There are no further relevant matters before the Tribunal.

49. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-500 visa  and that a breach of 12 months is significant in the context of a student’s study period

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

    DECISION

51. The Tribunal affirms the decision to cancel the applicant’s Student (temporary) (class TU) Student (subclass 500) visa

    Mark Bishop
    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.