Randhawa (Migration)

[2019] AATA 6760

Randhawa (Migration) [2019] AATA 6760 (7 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jarmanjeet Singh Randhawa

CASE NUMBER:  1907538

DIBP REFERENCE(S):  BCC2019/135895

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 August 2019 at 11:38 am (VIC time)

DATE OF WRITTEN RECORD:                1 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 October 2019 at 11:08am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-payment of fees – financial difficulties – purpose of visa not fulfilled – 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 21 March 2019 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 7 August 2019 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

3. This is the matter of Jarmanjeet Singh Randhawa in case number 1907538.  This is a decision delivered orally with the reasons for that decision by the Administrative Appeals Tribunal.

4. The applicant is a citizen of India.  He has applied for a review of a decision of the delegate of the Minister for Home Affairs cancelling his student temporary class TU higher education sector subclass 573 visa.  That decision to cancel his visa was made on 21 March 2019.  The visa had been granted originally on 16 February 2016 and it was due to expire originally on 15 March 2020 giving him approximately four years in which he could remain in Australia temporarily and study as a fulltime student in a registered course of study.

5. The delegate cancelled the visa on the basis that he had found that the applicant had breached that condition of the visa which required him to remain continuously enrolled in a registered course of study. Specifically the delegate identified the period from 25 May 2018 up to and including the date of the visa cancellation being 21 March 2019 as the period of time in which the applicant was in continuous breach of the visa. That condition of the visa is known as condition 8202; it forms part of the Migration Regulations. It is an absolute essential requirement of the visa that a student visa holder remain continuously enrolled because that serves the fundamental purpose for which the visa was granted.

6. The applicant appeared before the tribunal today to present evidence and make submissions as to why his visa ought not to be cancelled. In terms of the way in which the tribunal conducts its review and what it has to consider, first of all the tribunal has to consider whether or not there has been a breach of the condition as alleged by the delegate. At the outset of this hearing the tribunal inquired of the applicant as to whether or not he conceded that he was in breach of his visa for that period of time and he admitted in evidence that he was in breach. So on that basis along with the information that has been provided by the department file the tribunal is satisfied that he was in breach of condition 8202 and that then gives rise to the power to consider cancelling his visa under section 116 of the Migration Act.

7. That involves discretionary considerations as to whether or not the visa ought to be cancelled.  There are a range of factors that must be considered and what that means is that just because an applicant has breached a condition of the visa it does not result automatically in cancellation.  The tribunal is obliged to consider a range of circumstances and those circumstances in particular are set out in the Procedures Advice Manual 3 known as PAM3, which is designed to guide the tribunal and, of course, delegates in the exercise of this discretion as to whether or not the visa should be cancelled.

8. The first of those considerations that I turn my mind to is the purpose of the applicant's stay in Australia.  The whole point of the applicant being given permission to come to Australia for that four year period was to study and to study and achieve results successfully and at the end of that visa period ideally he will leave Australia having obtained certain levels of qualifications.  He was granted this visa on the basis that he would enrol in and successfully completes originally a Bachelor of Engineering (Mechanical) (Honours) to be done according to the applicant at Swinburne University.

9. In terms of the progression of that the applicant stated in evidence that when he first arrived here in 2016 he completed the first four units in the first semester of 2016 successfully.  He stated that he obtained a distinction average.  He provided no documentary evidence in support of this, however the tribunal has found that the applicant's account of his history is generally consistent with the information before the tribunal and so the tribunal accepts his oral evidence that he did achieve very highly and successfully in the first six months.  So to that extent he complied with the essential conditions of the student visa being in particular to maintain enrolment and also achieve satisfactory course progression.

10. However, from there it went downhill. He achieved nothing further by way of formal education success after that point in time.  The applicant explained this situation as arising principally from the financial circumstances he found himself in.  Before he arrived in Australia the first semester of studies tuition fees were prepaid for and so he did not have to worry about those.  But after the first semester, when it came time to pay the fees for the second semester of studies, there were difficulties with respect to finances.  The source of his finances for his studies was essentially his family back in India.

11. The applicant gave evidence that his family was having difficulties for a variety of reasons in being able to provide him with the necessary funds. Ultimately after applying for several extensions to make payments to Swinburne, he was unable to do so.  And, as is the ordinary course for the university in that situation, they would not allow the applicant to continue his studies and so his enrolment effectively was terminated towards the end of 2016 in the Bachelors course.

12. The applicant, responsibly, in accordance with the conditions of his student visa then made attempts to find another course in which he could enrol and he took the view that he would do something that was consistent with his casual work that he obtained in Australia.  Of course, he is entitled to work 20 hours a week and he said in evidence that he has continued to exercise that right up until the point that his visa was cancelled.  And so at the time that his enrolment was cancelled at Swinburne he was working in a restaurant. His then employer (or manager of his employer) encouraged him to enrol in a package course.

13. This is consistent with the department files. The PRISMS recordt indicates that he enrolled in about August 2017 in a Certificate III in Commercial Cookery, followed by a Certificate IV in Commercial Cookery, followed by a Diploma of Hospitality and then followed by a Bachelor of Business.  And so it is to his credit that he tried to make up for the termination from Swinburne by enrolling in that course.  However, he failed to complete the Certificate III and so as a result of that the whole package also was terminated.  The reasons for that, the applicant explained, were that the restaurant where he was employed had financial difficulties and so he lost his employment there and also, as a consequence, because his employer had undertaken to pay for these courses, he lost the ability to finance those courses as well.  So he was not able to complete anything of that nature.

14. Then it appears he subsequently obtained another job as a labourer or some kind of assistant carpenter and so as a result of that particular job he enrolled in a Certificate III in Carpentry.  Again, there was some issue with respect to finances and the ability or the undertaking of the person who employed the applicant to actually pay his due wages and so that presented difficulties with respect to being able to pay for his fees.

15. So in the end it appears that the essential reason that the applicant has been unable to maintain enrolment and achieve anything by way of educational qualification comes down to primarily his inability to actually pay for these. Obviously there are circumstances which are unfortunate that give rise to that situation but it is made very clear to all international students who arrive in Australia that one of the significant considerations that they must turn their mind to is if they are granted a visa for such a long period of time they need to make sure that they are able to fund their stay and most importantly first and foremost to fund their tuition fees.

16. If they do not then essentially the options are return to their home country because they cannot actually achieve the purpose for which the visa was granted.  Alternatively, some kind of deferment can be sought for studies on a temporary basis but there is no evidence of that here.  Ultimately for the reasons that have been explained by the applicant, his family had problems and were unable able to fund him.  There were also references made to some stressful and anxiety situations impacting on both him, it would seem, and also his family.  But there is no medical evidence or anything of substance that makes me give that too much weight.

17. Ultimately the fundamental purpose for which the visa had been granted has not been achieved in any way or substance.  So that is a significant consideration which weighs in the tribunal's mind to cancel his visa.

18. In terms of the extent of his compliance with the visa conditions, well, there is another concern.  Putting aside the fact that he has breached it for the 10 months as alleged due to the inability to pay for his fees, he has also been unable to make satisfactory progress in relation to anything.  Although he passed the first six months, well, that is just a very limited window in which he maintained his compliance with the visa conditions.  It appears after the first six months of the visa he breached another condition of the visa continuously by not maintaining satisfactory progress.

19. In terms of the degree of hardship that may be caused to the visa holder and family members if the visa is cancelled the tribunal notes that the applicant is now 22 years old.  He is relatively young; he has his whole life ahead of him.  This is obviously something which he would rather have not incurred -  being put in a position where he comes to Australia for almost four years only to leave with no educational qualification.  It is very unfortunate indeed but given that he is 22 he still has his whole life ahead of him.  Obviously his family will be disappointed when he returns without a formal qualification but nevertheless he is quite young and so that can be remedied with more concerted efforts in the future.

20. The circumstances in which the ground for the cancellation arose, I have already alluded to the fact that finances seem to be the primary problem and not putting significant priority or not directing significant priority to compliance with the primary visa condition of his visa, which was to remain enrolled in and successfully complete courses.  While some consideration has been given to the fact that he was funded by somebody else, his family, the ability to fund one's stay in Australia whilst studying is an absolute essential requirement and so that is something that is objectively within the applicant's control.  And so I do not regard this as some kind of intervening situation, which makes the whole situation that gave rise to the breach out of his control.

21. The tribunal has taken into account that the applicant has otherwise been of good behaviour in respect of his time in Australia and he has no concerning history with respect to his dealings with the department. I have given consideration to whether there are any consequential cancellations; there are none that appear to be before me. I have given consideration to the legal consequences of a decision to cancel the visa, including the fact that he will become shortly an unlawful non-citizen and if he does not leave voluntarily Australia he will be liable for detention under certain provisions of the Migration Act.

22. I have also considered that the effect of this cancellation decision will give him limited options in terms of applying for further temporary visas in the next three years.  In particular I have given consideration to the application of Public Interest Criteria 4013.  Australia's international obligations do not appear to be engaged by this particular case.

23. In all of the circumstances I consider that it is appropriate to cancel the visa in case number 1907538 where the applicant is Jarmanjeet Singh Randhawa the tribunal affirms the decision to cancel the applicant's student visa.

    DECISION

24. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member