Rajwinder Singh (Migration)

[2019] AATA 987

Rajwinder Singh (Migration) [2019] AATA 987 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Rajwinder Singh

CASE NUMBER:  1615847

HOME AFFAIRS REFERENCE(S):           bcc2016/2888010

MEMBER:Rachel Westaway

DATE:4 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 January 2019 at 4:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – potential difficulties seeking employment without higher education – financial capacity – money for fees stolen – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8; Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 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).

2. The delegate cancelled the visa on the basis that the applicant had not complied with a condition on his visa, namely condition 8202(2)(a) as he was not enrolled in a registered course. 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 25 May 2017 to give evidence and present arguments. The Members term at the Tribunal conclude before the case was finalised and as such it was constituted to a new Member and a second hearing was scheduled for 2 March 2018. The applicant did not respond to the hearing notification and did not attend the hearing. On 6 March 2018 the applicant’s representative called the Tribunal to enquire what will happen to the applicant’s case and acknowledged that the applicant did not attend the hearing. The first Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the first Tribunal hearing.

5. The Tribunal has relied upon the evidence provided at the first hearing and all relevant material on file.

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. 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?

8. 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).

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

10. The applicant supplied a copy of the Delegate’s decision when applying for review to the Tribunal. The Tribunal explained that the Provider registration and international student management systems (PRISMS) recorded that the applicant did not appear to have been enrolled in a registered course of study from 13 February 2016 until 20 September 2016 when his visa was cancelled. He was sent a Notice of Intention to Consider Cancellation (NOICC) on 9 September 2016 but he did not respond.  

11. The Tribunal explained PRISMS which is a database used by the Department to keep records on all overseas students and their attendance and enrolment information. The Tribunal asked the applicant if he disputes that he was not enrolled during this period and he did not. The first Tribunal member explained condition 8202 which is a condition placed on the student visa requiring the holder to be enrolled in a registered course and that given he has confirmed that he was not enrolled in a registered course during the period outlined, then he is in breach of the condition and that this gives rise to the grounds for cancellation.

12. As the applicant confirmed he was not enrolled in a registered course and this was also supported by the PRISMS records.  As such, the Tribunal finds that 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

13. 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’

14. The applicant confirmed he is a citizen of India and was born on 13 October 1993.

    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

15. The Tribunal asked the applicant what his purpose had been in coming to and staying in Australia. He said that he came to further his studies and has been in Australia since 23 September 2014. He confirmed he had completed high school in India and came to Australia to study a Bachelor of Business. He said it was a package course and he was to commence with a Diploma of Business in Melbourne.

16. Having regard to the applicant’s evidence, I accept that he may have travelled to Australia intending to study, but given his conduct in Australia, as set out below, I give this only little weight towards the visa not being cancelled.

    the extent of compliance with visa conditions

17. The applicant confirmed he had not breached any other conditions associated with his visa. The Tribunal notes that the applicant was not enrolled in a registered course for a period of approximately seven months.

18. The applicant explained his reasons, as discussed in more detail below, claiming that his friend robbed him of his tuition money. The money was from a delayed refund from one course provider who took twelve months to refund the money.

19. The applicant stated, and I accept, that he did not breach any other conditions on his student visa.

20. As noted below, I do not find any of these reasons for his breach of the enrolment condition sufficient. I considered his condition to be important, because one of the primary reasons for holding a student visa was to be enrolled and to study, and he had admitted to doing neither for seven months. When I weigh his reasons, and my views on those reasons as set out below, against the period of non-enrolment, I have significant concerns about the period of breach which leads me to give this factor some weight towards the visa being cancelled.

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

21. The applicant explained that he sees no future for himself if his visa is cancelled. He explained without qualifications there will be no professional roles for him in India. He explained his family are also concerned. He said his father died in 2011 and his mother lives in India and he has one brother who is three years older and his mother is a housewife. He has no sisters.

22. He explained that his father had a government job in the forestry department.  The Tribunal asked how they can afford to live and he said they are also farmers.  He said that his mother has land and they both farm and earn an income this way. He explained that if he is not educated then he won’t be able to get a job. The Tribunal explained to the applicant that there are millions of people in India who have jobs and haven’t completed studies. He said he wants to study further and make a good future for himself.

23. I accept that there may be some hardships to the applicant and his family if the visa remains cancelled. However the applicant would still be able to study I India or online or apply to for a visa after three year ban period. Furthermore the Tribunal does not accept that the applicant could not obtain a job in India without qualifications and whilst I appreciate that tertiary studies may enhance his future, I do not accept that he would be prevented from obtaining a tertiary education should he return to India. I do not accept that these would be significant hardships and I give this only some weight in favour of the visa not being cancelled.

    circumstances in which ground of cancellation arose. 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

24. The Tribunal asked the applicant the reason why he was not enrolled and he stated that it had to do with the course he wanted to study and his inability to pay the fees because his friend robbed him of his tuition money and he couldn’t afford to pay his enrolment fees. He stated that he lodged a police report and provided the Tribunal with a reference number however this provided no further information regarding the claimed robbery. He said that the robbery took place in January 2016 in Brisbane, Queensland and it took 1-2 days for the police to provide a report.

25. He explained that the cash was $12,347 which was taken from his home. He was asked why he had it at home and he said it was a refund from a previous college and they gave him cash. The Tribunal asked for further clarification and he said that his friend took his phone from home and got the password and this is how he stole the money via an electronic transfer. The Tribunal then stated that it was not taken from home as he originally claimed.

26. He said that his friend use to live with him and transferred the money from one account to the other. The Tribunal asked for copies of the bank statements which identified this and he said that he went to the bank and asked for evidence and he does have them but he did not bring them.  He said that he had no idea how his friend obtained his password.

27. The applicant’s representative asked the Tribunal if it was possible to clarify if it was an electronic transfer that was made. The applicant did not respond with clarity but explained that the money was cash from a refund from his original course provider in Melbourne. He requested a refund and withdrew because he wanted to study in Brisbane instead.

28. The applicant explained when he arrived in Melbourne he had no accommodation or friends. He arrived in September 2014 and commenced studying however he moved within a week of coming to Melbourne.

29. The Tribunal asked the applicant why he changed cities and his course provider so quickly. He said that he had no arrangements and no one met him so he moved to Brisbane and he had friends there. He enrolled in Skills College and he started studying in June/July 2016. He then clarified that this was 2015. He received his refund on 15 January 2015 from Holmesglen and then this is how he paid for his studies at Skills College.

30. For greater clarity, the Tribunal summarised the applicant’s explanation stating that he was not enrolled in a registered course from 13 February 2016 until 9 September 2016 because he had no money to pay for his enrolment because a friend had stolen it. The money was from a refund by Holmesglen. He was supposed to initially study at Holmesglen in September 2014 in Melbourne however by January 2015 he moved to Brisbane and commenced studies there and used this money to pay Skills College. The applicant clarified this point and said he did not use the money from the refund. He said he had a job so he paid for it from his salary. He explained that he was not looking at his bank accounts and had not realised the refund went in until much later. He said that he did not start at Skills College until June or July so he paid instalments of $500 per month and did not have to pay each month. The Tribunal stated that it is a requirement of the student visa to confirm you have the financial capacity to cover tuition and living expenses for the entire study period rather than needing to work.

31. He confirmed the refund went into his account on 10 January 2015. The Tribunal clarified with the applicant whether it took a year to get a refund. He then said he was confused when the money arrived because he came to Australia in September 2014.

32. The Tribunal explained that he initially said he was robbed in January 2016. He said it was his mistake.  He clarified that the money was taken in January 2015 and that from February 2016 he was not enrolled and this was the year and month when he had no money to enrol and hence he breached the condition. The Tribunal asked him how he paid for the previous fees. He stated that he earned $500 per month and worked for Dominos but he lost his job in the first week of February 2016.

33. The Tribunal explained that if he was earning $500 per month and his job ended in February 2016 it seemed very quick to cancel the enrolment for not paying one month of fees. He was asked if he received any correspondence from the course provider in regards to late payment or if he had copies of documents to support this. He said he had emails.  He then said he had completed everything on 12 February 2016 and so he simply did not enrol.

    The Tribunal has had regard to the evidence available to it. The applicant provided a copy of a student card for Skills, the course provider and a Queensland police card which has a number to quote on it but is not dated and does not identify the applicant or provide any details to suggest it pertains to the claimed theft of funds. The reference is reference number QP1500496212. Tribunal file ff:27-28.

34. Tribunal file ff:33-35 is a copy of log entries by Queensland Police dated 21 April 2015.

35. It states the applicant claims to have set up a bank account with a friend in October 2014. On 8 January 2015 a transaction was made by TAFE which was the stated refund. On 9 January 2015 the applicant noticed money had unlawfully been taken from his account.

36. The report stated numerous attempts to contact the applicant were made to investigate the matter further and they were told the suspect had returned to India.

37. I have had regard to his explanations and responses at the hearing. I have found that the applicant was not enrolled in a registered course for a period of seven months until his visa was cancelled. On considering his claims, I do not accept that his reasons and the evidence before me indicate that for this period there were exceptional circumstances for the breach. Nor do I accept that these reasons explain the breach here. I place limited weight on his explanation that the funds were stolen as the police report was purely a report and not an investigation which concluded that the funds were taken unlawfully. Furthermore the applicant’s oral evidence was confusing and unconvincing and there was nothing preventing the applicant from returning to India if he was unable to pay for his tuition. His visa was there to enable him to study. There was nothing preventing him from returning to India to avoid the breach and then returning when he had more money. Alternatively, he stated that he worked, and whilst I accept he may have lost his job, there was no reason why he could not have found another. He provided no evidence of such attempts to rectify his status. I have considered his explanations for why he was not enrolled for this significant period and therefore in breach, and I do not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time and I give this factor very significant weight towards the visa being cancelled.

    past and present behaviour of the visa holder towards the department

38. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. I give this some little weight in his favour.

    whether there would be consequential cancellations under s.140

39. The applicant confirmed he is not married and has no children and his visa is not connected to any one else.

40. 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

41. The applicant is on a bridging visa and would be given a confined period in which to make arrangements to depart the country.

42. 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

43. In this case it does not appear that this consideration is relevant as when asked the applicant indicated there was no reason he cannot return to India and has not made any claims which would relate to this consideration.

44. any other relevant matters.

45. The applicant reiterated that he wants to study and not go back to India.

46. He confirmed he would provide evidence of the police report and bank details and investigation and outcome.  He said that he was robbed. He claims to be able to afford his fees now.  He requested the tribunal give him one more chance.

47. I have had regard to his responses but I find, in light of my findings above, that this adds very little to his case and I give it only very little weight towards the visa not being cancelled.

48. The applicant was given until 1 June 2017 to supply documents which he provided and consideration has been given to these.

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

    DECISION

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

    Rachel Westaway
    Senior 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.