Randeep Singh (Migration)

[2020] AATA 2686

Randeep Singh (Migration) [2020] AATA 2686 (8 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Randeep Singh

CASE NUMBER:  1931212

DIBP REFERENCE(S):  BCC2019/3219971

MEMBER:  Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 May 2020 at 3:55 pm (VIC time)

DATE OF WRITTEN RECORD:                27 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 27 May 2020 at 3:14pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – allowance for change in study pathway – failure to contact the Department – not beyond applicant's control – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 October 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

1. At the hearing on 8 May 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate for the Minister for Home Affairs on 25 October 2019 to refuse to cancel the applicants Subclass 500 Student Visa under section 116(1)(b) of the Migration Agent 1958.

1. The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that once completed would provide the qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

1. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

1. The applicant appeared before the Tribunal on 8 May 2020 to give evidence and to present arguments.

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

1. The issue in the present case is whether the applicant is the holder of a student visa, has breached condition 8202(2)(b) of schedule A to the Migration Regulations 1994. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

1. Paragraph (2)(b) of the relevant conditions states that the visa holder:

“must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.”

1. The applicant’s visa was granted for the purposes of studying a Bachelor of Business at James Cook University, which is an Australian Qualifications Framework level 7 course.

1. Information available to the department in the Provider Registration and International Student Management System (PRISMS) indicated that on 15 December 2017 the applicant’s enrolment in the Bachelor of Business was cancelled by the education provider and they have not been enrolled in an AQF level 7 course since that date.

1. PRISMS indicated that the highest confirmation of enrolment that the applicant held thereafter was for a level 5 course. That is to say on 15 April 2019 the applicant obtained enrolments in three courses of study, namely, a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Motor Mechanical Overhauling, and Diploma of Technology through the Skills Institute of Australia. The highest enrolment in that suite of courses is at an AQF level 5.

1. As the applicant is not enrolled in a course at the AQF level 9 Masters Degree or the AQF level 10 Doctoral Degree the circumstances of clause 8202(3) do not apply to him.

1. On 18 September 2019 a notice of intention to consider cancellation of visa was sent to the applicant. By written response dated 2 October 2019 the applicant responded to the notice of intention to consider cancellation.

1. In the written response the applicant stated that he failed in his first semester of his Bachelor of Business degree and decided to study in a different field. He stated that he was aware that he was in breach of his student visa condition if he did not obtain a COE for a higher education course.

1. In the applicant’s evidence at the hearing on 8 May 2020 the applicant candidly acknowledged he was aware of his visa conditions and acknowledged that he was not enrolled in a Bachelors degree level 7 course since 15 December 2017.

1. Based upon that evidence the Tribunal finds that the applicant has not complied with subclause 2(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or a higher level than, the registered in relation to which the visa was granted.

1. Having found that the applicant has not complied with the condition of the visa the Tribunal must now 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.

1. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters of the department’s procedures instructions advice manual (PAM3).

1. In response to the notices of intention into the cancellation the applicant provided various reasons as to why he believed his visa should not be cancelled. The applicant contended that the ground for cancellation arose in circumstances that were outside of his control.

1. The applicant stated that he was unable to pass his Bachelor course at James Cook University and that he fell behind in his studies and failed in his first semester of studies at that university.

1. He then started an automotive course at the New England College because he became aware that New England College arranges for confirmations of enrolment for higher education courses from their partnered university.

1. The applicant stated he was aware of the potential non-compliance of his visa condition and was desperate to ensure that he obtained a confirmation of enrolment. However, in the middle of the course work for his Certificate III in Automotive Studies, he was informed by the New England College that they could no longer provide COEs for any student at the college for higher education level studies as their partnership with the university in question had not renewed and all the students were advised that they had to arrange for their own offers and their own COEs.

1. The applicant stated further that he claimed the New England College refused to issue any certificates for studies completed and requested thousands of dollars in order to obtain the transcripts for credits for the subjects that the applicant had completed at that time in the automotive studies courses he was undertaking.

1. The applicant stated that he managed to gain an admission to the Skills Institute and that he was attempting to obtain credits from his prior automotive studies at the New England College, and that he was seeking to obtain a COE at the correct level so as to rectify his visa breach and that it was his intention to complete his education and to pursue Bachelor level studies at the time that he received the notice of intention of the cancellation.

1. The applicant acknowledged that he failed to secure a confirmation of enrolment for higher education. However, he was of the view that he believed the New England College would be able to set him on a pathway to Bachelor level studies if he undertook the suite of automotive studies that he did in 2018, and because that education provider shut down at the end of 2018 that made it difficult for him to obtain a COE at the right level at that time.

1. The applicant stated further that he believes that it is normal for students or reasonable for people to reconsider options available to them in respect to their career path from time to time. He requested that the department consider his career options and allow him to finish his course in automotive studies. He also indicated that it is his intention to secure confirmation of enrolment at Bachelor level studies and he needs a bit more time.

1. In the applicant’s evidence at hearing the applicant gave evidence entirely consistent with his response to the department. The applicant stated that he trusted in the New England College where he undertook the suite of automotive studies at that time. After he ceased the Bachelor of Business Studies, he genuinely believed that the New England College would be able to obtain a confirmation of enrolment in a Bachelor level course of study as a natural pathway if he completed the relevant Certificate III, IV and Diploma level studies with that college.

1. The college unexpectedly shut down at the end of 2018. The applicant was unable to finish the particular vocational level studies he was undertaking there at the time. He was unable to be given credit for those studies undertaken, and he moved to the Skills Institute to undertake further vocational studies at that time.

1. The Tribunal asked the applicant if there was any reason why he did not contact the Department of Immigration in late 2018 or early 2019 when it became apparent that he was not going to receive a COE at the Bachelor level when New England College shut down. The applicant candidly informed the Tribunal that the reason he did not contact the Department to obtain a visa for the Diploma level course of study was that because in 2018 he was doing vocational level education that he wished to finish. He was successfully undertaking studies, even undertaking an Advanced Diploma in Leadership Management and he genuinely intended in due course to move to a Bachelor level course of study.

1. The Tribunal has considered and had regard to the circumstances in which the ground for cancellation arose. The ground for cancellation arose because the applicant did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted resulting in non-compliance with subclause 2(b) of condition 8202 attached to the applicant’s visa.

1. Having regard to all the evidence that I have just set out the Tribunal is of the view that the circumstances that led to the breach of the particular visa condition in this case were not due to matters beyond the control of the applicant.

1. The Tribunal acknowledges the applicant’s statement that it is normal for students to undertake and reconsider different study options available to them from time to time, however, the Tribunal is not persuaded that the applicant could not have contacted the department at the relevant time to apply for a new student visa to study at the Diploma level

to ensure that he remained compliant with the particular visa condition, that has been breached in this case.

1. The applicant, to his credit, candidly acknowledged that he did not contact the Department to obtain or change his visa for Diploma level studies, because he wished to continue to undertake the particular studies that he was doing at the relevant time with a view to enrolling in a Bachelors course. That evidence is an acknowledgement that the applicant has undertaken and continued to undertake studies in breach of his particular visa condition.

1. Notwithstanding that the Tribunal notes that the evidence before it would tend to indicate that the applicant has been a reasonably diligent student over the course of his study in Australia, the Tribunal considers that it is an integral purpose for the grant of a student visa that applicants maintain compliance with the conditions attached to those visas, and in circumstances where they are unable to maintain compliance the reasonable course of action is to contact the Department to obtain clarity as to one’s further compliance with visa conditions or to contact education providers or professional advisors to seek advice as to what steps can be undertaken to ensure compliance with visa conditions. The applicant has not undertaken those steps in this case.

1. In all those circumstances the Tribunal therefore cannot be satisfied that the reason for the breach of this visa condition is due to a matter beyond the control of the applicant, and the Tribunal gives this factor significant weight in favour of cancelling the visa.

1. As to the applicant’s purpose for travel and stay in Australia, the applicant arrived in Australia on 15 June 2014 on a Student (Subclass 573) Visa. He was subsequently granted a Student (Subclass 500) Visa on 25 October 2017 for the purpose of undertaking studies in a Bachelor of Business course in Australia at James Cook University.

1. The Tribunal acknowledges that the applicant has undertaken and completed several courses of study since his first arrival in Australia, however, PRISMS indicates that the confirmation of enrolment for the Bachelor of Business the applicant was undertaking was cancelled on 15 December 2017 due to the applicant seeking to transfer to a different provider. PRISMS notes that there is a comment from the education provider that the applicant intends to study a Masters of Business Administration at Holmes Institute in Brisbane.

1. It is clear, based on the evidence that I have set out above, that the applicant has not maintained enrolment in a Bachelor level course, which is an AQF level 7 course, since 15 December 2017. He subsequently continued to study at certificate level and diploma level only.

1. Given that the applicant has not maintained enrolment in a Bachelor level degree since 15 December 2017 I consider that his purpose of stay in Australia is no longer in line with the purpose for which his student visa was granted.

1. At the time of this decision the applicant acknowledged that he has not presently obtained enrolment in a Bachelor level course. However, he did give evidence that it was his firm wish and desire to study at the Bachelor level in the future.

1. The Tribunal acknowledges these aspirations, however, there is no evidence before the Tribunal to suggest that the applicant would not be able to study at a Bachelor level course on return home to his home country.

1. Given that the applicant’s purpose for being in Australia is no longer in line with the purpose for which the visa was granted, and has not been in line with that purpose since 15 December 2017, I give this consideration weight in favour of cancelling the visa.

1. As to the applicant’s extent of non-compliance with visa conditions the applicant has not maintained enrolment at the required AQF level for which his visa was granted since 15 December 2017, which is a period of well over two years, I consider the extent of non- compliance with condition 8202(2)(b) to be significant in these circumstances.

1. There is no information before me to suggest that the applicant has been non-compliant with other visa conditions that his visa was subject to. However, I do consider the period of non- compliance with the relevant visa condition to be extensive and I give this some minor weight in favour of the visa being cancelled.

1. As to a degree of hardship that may be caused to the applicant or to his family members, the Tribunal has had regard to the applicant’s response to the notice of intention to consider cancellation and his evidence at hearing. The Tribunal acknowledges that if the visa were to be cancelled the applicant genuinely believes that he will lose future options for better opportunities in his career.

1. The Tribunal acknowledges that if the applicant’s visa were to be cancelled he would certainly suffer from some financial hardship on account of the wasted moneys paid for studies to date. He would certainly suffer some emotional hardship as a result of not being able to complete the vocational level studies that he was enrolled in prior to the cancellation of his visa.

1. The applicant acknowledged that there are no immediate family members onshore who would be impacted by his visa cancellation. On account of all those matters, I give minor weight against cancelling the visa.

1. As to the applicant’s past and present behaviour towards the department, the Tribunal notes that there is no evidence before it of any lack of cooperation on the part of the applicant with the department. The Tribunal notes that the applicant responded promptly and extensively to the notice of intention to consider cancellation. The Tribunal gives this good conduct a little weight against cancelling the visa.

1. The applicant confirmed that there are no persons in Australia that are dependent upon his visa, and as such the circumstances of this case are not such that any person’s visa would be consequently cancelled under section 140 of the Act. I do not therefore give that factor any weight for or against cancelling the visa for this consideration.

1. If the visa remains cancelled, the applicant would become an unlawful citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act which may prevent him from applying for certain visas while in Australia. However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach of the visa were within the control of the applicant I do not consider these mandatory consequences to be manifestly unfair, and the Tribunal therefore gives this consideration little weight against cancelling the visa.

1. There is no evidence before the Tribunal to indicate that the applicant has children in Australia or whether cancelling the visa would lead to a breach of Australia’s non- refoulement obligations. I therefore do not give this factor any weight for or against cancelling the visa for this consideration.

1. As to whether there are any other relevant matters, the Tribunal invited the applicant to inform it of anything further he would like to say. The applicant informed the Tribunal that he is studying a certificate III in automotive studies, that those studies are going to be finished, and he will then undertake a certificate IV in automotive studies. The applicant stated that it is his further intention once he completes these courses to do a Bachelor level degree. The applicant further informed the Tribunal that he would be able to re-obtain enrolment in his original Bachelor of Business degree, that is to say, the degree which was cancelled on 15 December 2017.

1. The Tribunal acknowledges the applicant wishes to undertake Bachelor level studies in the future, however, the reality is as at the date of this hearing the applicant has been unable to procure enrolment in a Bachelor level degree, and as such would remain in breach of his visa conditions if he were to continue to undertake vocational level studies on the basis of his current visa.

1. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the all of the evidence before the Tribunal, that the breach of the visa condition was not due to matters that were outside of the control of the applicant. It is also clear that the considerations I have arrived, on examining all the evidence before me lead towards the visa being cancelled and I so find.

1. Considering the circumstances as a whole the Tribunal considers that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision under review.

Vanessa Plain Member