Sandhu (Migration)

[2019] AATA 6160

Sandhu (Migration) [2019] AATA 6160 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jobanjeet Singh Sandhu

CASE NUMBER:  1814134

HOME AFFAIRS REFERENCE(S):           BCC2018/907353

MEMBER:Nicola Findson

DATE:17 October 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 17 October 2019 at 1:48pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – ceased enrolment – changed study pathway – claimed administrative error – insufficient evidence provided – lack of motivation to study – completed vocational courses – significant period of non-enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), cl 573.231, Condition 8516

CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 higher education sector visa and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the 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.

3. The applicant sought review of the delegate’s decision on. The Tribunal was provided with copy of the delegate’s decision record by the applicant, for the purposes of the review.

4. The applicant appeared before the Tribunal on 6 May 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 attached to the applicant’s visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

9. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

10. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 14/007.

11. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

    Does the ground for cancellation exist?

12. The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purposes of the review.  The decision record indicates that on 11 April 2014, the applicant was granted a visa in Subclass 573 Higher Education Sector on the basis of his enrolment in a Bachelor of Science.  On 19 April 2018, the delegate’s decision records that the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC), on the basis that he had failed to comply with condition 8516 of his visa because he had ceased to be enrolled in a Higher Education Sector course.  The applicant responded to the NOICC on 26 April 2018.  By way of response, he provided evidence that he had enrolled in a Bachelor of Business at Sheridan College, to commence on 25 January 2021. 

13. During the review process, the applicant provided a letter from the Sheridan College offering him an earlier start date of September 2019, in a Bachelor of Business. 

14. Condition 8516, as explained to the applicant at his hearing, requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria… for the grant of the visa’.  Clause 573.231 is relevant.  Condition 8516 contains a temporal requirement in the words ‘continue to be’.  Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applies at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times.  The use of the term ‘would satisfy’ the criteria, suggests that it applies as if the criteria were being assessed at the time compliance with the condition is required, that is, at any time during the period of the visa.  Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa, irrespective of subsequent re-enrolment.

15. During his hearing, the applicant confirmed to the Tribunal that he was granted a subclass 573 visa on the basis of his enrolment in a Bachelor of Science.  He indicated that once he arrived in Australia, he changed his study pathway as well as his course provider, and subsequently cancelled his enrolment in the Bachelor of Science degree on 9 June 2014.  The applicant maintained that he had not breached condition 8516 because he had always maintained an enrolment in a Bachelor degree course. He told the Tribunal that his new package of courses included an enrolment in a Business degree, and that it was his intention to complete this. He undertook to provide evidence of his enrolment in the higher education course to the Tribunal following his hearing.

16. The applicant gave evidence, which the Tribunal notes was sometimes confusing and difficult to follow, about the study he had actually completed since his arrival in Australia.  He told the Tribunal that after his arrival, firstly, he completed a Diploma of Business at the Department of Training and Workforce Development in June 2015.  He said he went on to complete an Advanced Diploma of Business in about July 2016.  He indicated he intended progressing with his study pathway at the Department of Training and Workforce Development, but because of an administrative error on the part of the college, attempts to correspond with him in relation to the payment of his fees were going to an incorrect email address.  He said that this error ultimately led to the Department of Training and Workforce Development cancelling his enrolment.

17. An email dated 8 September 2016 from the Department of Training and Workforce Development, provided to the Tribunal by the applicant, supports his evidence that the education provider had the incorrect email address for him on record.  To resolve the issue, the provider offered a deferment of the applicant’s studies to Semester 1 2017, noting that he would have to discuss this option with the Department given the gap in study, or a refund of the $230 deposit paid by the applicant and a release letter to enable him to enrol at another provider.  The applicant replied to the Department of Training and Workforce Development several weeks later, on 20 October 2016, and stated that he had enrolled at another institute to undertake a Diploma of Human Resources.  He also requested that the Department of Training and Workforce Development provide him with a confirmation of enrolment in a “further degree”.

18. The Tribunal indicated to the applicant that it was concerned that there had been no contact with the Department to explain the problems with his enrolment at the Department of Training and Workforce Development. The applicant told the Tribunal that he obtained migration advice and as a result of the advice he received, he understood that it would be enough to simply enrol in a new package of courses at another provider, the Kingdom College.  He said he commenced a Diploma of Human Resources at the Kingdom College in about October 2016.  He told the Tribunal that shortly after he commenced this course, in about November 2016, he deferred his studies to seek treatment for a fractured wrist, which included him returning to India for surgery.  He told the Tribunal he completed the Diploma of Human Resources in July or August 2017.  He also told the Tribunal that while he was undertaking this course, he reconnected with the Department of Training and Workforce Development in respect of an enrolment in a degree in about December 2016.  He indicated that the Department of Training and Workforce Development wanted him to complete a Certificate IV in Work Health and Safety before he commenced his degree.  However, because he had deferred his study in the Diploma course at Kingdom College there were problems with him commencing the Certificate IV.  He indicated that he obtained a release letter from the Department of Training and Workforce Development in late 2017, and subsequently enrolled in a Diploma of Leadership and Management at the Global College.  He said he commenced the Diploma in February 2018, but didn’t have the opportunity to complete much of the course because his visa was cancelled shortly after he commenced it.  

19. The Tribunal notes, as discussed with the applicant, that it has no evidence before it of the vocational course he claims to have completed at Kingdom College.  Nor does it have any evidence of an enrolment issued by the Department of Training and Workforce Development to the applicant in respect of any degree in about December 2016. The applicant undertook to provide this evidence following his hearing.  However, to date, this evidence has not been provided.

20. On 18 May 2018, the applicant, via his representative, submitted that there had not been a breach of condition 8516 and that the delegate had made an error by cancelling his visa.  In support of his submission, the representative provided a confirmation of enrolment issued by the Department of Training and Workforce Development to the applicant in 2014 for an Associate Degree of Business to start in July 2016 and end in June 2018.  

21. An Associate Degree is a principal course of a kind specified for a Subclass 573 visa in IMMI 14/015.  However, the confirmation of enrolment issued by the Department of Training and Workforce Development in respect of the Associate Degree of Business (and provided to the Tribunal following the hearing), on the applicant’s evidence, was compromised because of an administrative error on the part of the provider in mid-2016. After this time, apart from the applicant’s oral evidence, there is no other evidence before the Tribunal that the applicant was enrolled in, or the subject of a current enrolment in a principal course of a type specified for his student visa.

22. As to the applicant obtaining a new enrolment in a higher education sector course, to commence in January 2021 or even September 2019, following the issue of the NOICC by the Department, it is the Tribunal’s view that a breach is established once the applicant ceased to be enrolled in the relevant course, despite the subsequent re-enrolment.

23. On the basis of the information before it, the Tribunal is satisfied that in or about September  2016, after the applicant failed to commence an Associate Degree of Business at the Department of Training and Workforce Development or engage with the provider as to either a deferment or a letter of release after an administrative error was identified, he ceased to be enrolled in, or the subject of a current offer of enrolment in a course of a type specified for Subclass 573, thereby not satisfying cl.573.231 or cl.573.223(1A).   He therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 of his student visa.

24. 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 the power to cancel the visa should be exercised.

    Consideration of discretion

25. 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’.

26. At his hearing, the applicant told the Tribunal that he came to Australia in May 2014, to achieve higher study.  He said that it was his plan to complete his education – a Bachelor of Science - and then return to India to get a good job.  

27. The Tribunal discussed with the applicant its concern that he changed his study pathway immediately on arrival in Australia.  It also discussed with the applicant that it was concerned that since his arrival in May 2014 and up until his visa was cancelled in May 2018 – four years - despite being on a higher education sector visa, he had only undertaken vocational level study.  The applicant indicated that he had decided on a change in pathway before he arrived in Australia.  He also told the Tribunal that it had always been his intention to undertake higher education study.

28. The applicant told the Tribunal he had, unsuccessfully, applied for study rights following his visa cancellation.  The applicant said he had not worked since his visa was cancelled.  He said his family had helped support him financially since the cancellation.

29. The Tribunal asked the applicant if he or others would suffer hardship if the visa were cancelled.  The applicant indicated that he did not want his visa to be cancelled as he wanted to finish his studies.  He said his life would be ruined if he returned to India without a Bachelor degree.  He said that he had been in a de facto relationship with Ms Deep Kamal Pannu, a 22 year-old Australian citizen, for the last four years and that she would be impacted psychologically if his visa remained cancelled.  When probed further about this relationship, the applicant conceded that his ‘girlfriend’ lives with her parents and not with him, but that they had intentions to marry in the future.  He said he wanted to complete his studies before he thought about getting married.  He indicated that he would like his girlfriend to accompany him overseas, when he has finished studying in Australia.

30. The Tribunal asked the applicant why his girlfriend had not attended the hearing to, at the very least, support him.  By way of response the applicant said that he had come alone as he was not aware she was able to be at the hearing.

31. Following his hearing, the Tribunal received a statement from Ms Pannu, dated 15 May 2019.  Ms Pannu states that she arrived in Australia in 2009 and is an Australian citizen.  She states she has been in a de facto relationship with the applicant for the last four years.  She states that even though they are not living together, their relationship is genuine and continuing.  She states her parents have approved their relationship, but would like the applicant to complete his Bachelor level study before they get married.  She states she intends moving overseas after the applicant completes his degree.  She states she financially supports the applicant.  She states she relies on the applicant for emotional support and that his visa cancellation has resulted in a lot of stress for her, which has led to depression and her requiring prescribed medication.  She states that it would be very hard to leave her job and join the applicant in India if his visa remains cancelled.    She states that they will not have enough money to support themselves and will be dependent on relatives.  She states that India is a dangerous country and that she fears for her safety when she visits that country.  She states that if the applicant goes back to India it will be devastating for her, because she cannot think about living without her ‘partner’. The Tribunal has had regard to this written information, but it does not overcome its concerns as to the significance of the applicant’s breach, set out below.

    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   

32. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education Sector visa is to enable the visa holder to undertake study at the higher education level.  The Tribunal acknowledges the applicant’s evidence that he came to Australia in May 2014, intending to study a Bachelor of Science.  However, the Tribunal notes that on the information before it, shortly after his arrival in Australia in June 2014, he cancelled this course and enrolled in a different package of courses at a different course provider.  Further, on the evidence before the Tribunal, since his arrival in Australia, the applicant has only managed to complete two vocational courses - a Diploma of Business in June 2015 as well as an Advanced Diploma of Business in July 2016. There is no documentary evidence before the Tribunal, that he has completed any other courses.

33. The Tribunal finds the applicant’s breach of condition 8516 to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. In addition, on the basis of the evidence before it, that the applicant has not undertaken any higher sector study since his arrival in May 2014, it is the Tribunal’s view that he has not shown that he has the desire to study at a higher education level in Australia.  

34. The Tribunal has considered whether the applicant has a compelling need to remain in Australia in order to remain with his girlfriend (who is an Australian citizen).  The Tribunal has considered Ms Pannu’s written claims that she relies on the applicant for emotional support and that she would be devastated if his visa was cancelled and he was required to leave Australia.  The Tribunal is willing to accept that if his visa remains cancelled the applicant may be separated from his girlfriend, and that this may upsetting for them both. However, the Tribunal is of the view that any emotional and psychological support the couple claim to provide each other need not cease if the applicant was to leave Australia.  If the applicant was to leave Australia, the couple should be able to maintain contact by electronic means, and travel to see each other, and the Tribunal is not convinced that they would be precluded from providing each other with emotional support. 

1. The Tribunal has also taken into consideration the applicant’s claims that completing his higher sector study would enable him to get a good job when he returns to India. 

2. However, the Tribunal is not persuaded that there is a compelling need for the applicant to remain in Australia for these reasons. The Tribunal considers that the applicant’s non-engagement in the study for which his visa was granted since about September 2016 is significant and outweighs any hardship that he, his family members and his girlfriend may face. 

3. The Tribunal gives minimal weight to the applicant’s claimed purpose for travelling to and remaining in Australia.

   The extent of compliance with visa conditions

4. The Tribunal has found that the applicant ceased to be enrolled in a higher education course from about September 2016 up until he was issued with the NOICC by the Department on 19 April 2018, a period of about 19 months – of which the Tribunal considers to be significant.  The Tribunal has also considered that the applicant has not undertaken any higher education sector study at all since his arrival in Australia in May 2014.    

5. The applicant stated, and the Tribunal accepts and affords some limited weight to the fact, that the applicant did not breach any other conditions on his student visa.

6. The Tribunal considers condition 8516 to be important.  When the Tribunal weighs the applicant’s reasons, and its views on those reasons as set out below, against the long period of non-enrolment in a course of a type specified for Subclass 573, the Tribunal has significant concerns about the period of breach which leads it to give this factor some weight towards the visa being cancelled.

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

7. The applicant indicated that his life would be ruined if he returned to India without a higher education sector qualification. The evidence before the Tribunal also indicates that the applicant’s girlfriend would be impacted if the visa remains cancelled.  Specifically, Ms Pannu claims she would be stressed and depressed and lose the emotional support that it is claimed the applicant provides her; it would be hard for her to leave her job and join the applicant in India if his visa were to remain cancelled; they would not have enough money to support themselves and would be dependent on relatives; she fears for her safety when she visits that country.  The Tribunal has considered Ms Pannu’s statement that if the applicant goes back to India it will be devastating for her, because she cannot think about living without her ‘partner’.

8. The Tribunal has had regard to the claims of the applicant and accepts that the applicant would prefer to remain in Australia and that there may be some consequences and hardship to the applicant as well as his family and girlfriend if the visa remains cancelled.

9. However, after careful consideration, the Tribunal gives this factor only limited weight towards the visa not being cancelled.

   Circumstances in which the 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

10. The Tribunal has considered the circumstances in which the ground for cancellation arose. In the Tribunal’s view, the applicant, as the holder of the visa, had the responsibility to familiarise himself with the conditions of his visa and what these required him to do.  The applicant would have been advised at the time of the visa grant that his visa was subject to certain conditions.  In the Tribunal’s view, the applicant was obliged to ensure that he was familiar with the requirements of these conditions.  Ultimately the responsibility for compliance with visa conditions lies with the visa holder.

11. The Tribunal has had regard to the applicant’s responses at hearing and the evidence provided.  The Tribunal has considered the applicant’s evidence that after he completed an Advanced Diploma in July 2016, he intended commencing a higher education course at the Department of Training and Workforce Development, but because of an administrative error on the part of the college his enrolment was ultimately cancelled. The Tribunal has found that the applicant was not enrolled in a higher education course for a significant period of time until his visa was cancelled on 9 May 2018.  In addition, the applicant has not commenced any higher education course at all since his arrival in Australia. The Tribunal has considered the applicant’s evidence that he changed his course pathway and provider shortly after his arrival in Australia.  The Tribunal has also considered the applicant’s evidence as to why he was not enrolled for this significant period and therefore in breach, including that he received migration advice that it would be ‘enough’ to enrol in a new package of courses at another provider – Kingdom College; that he did reconnect with the Department of Training and Workforce Development about an enrolment in a degree course, but because he needed to defer his studies at the Kingdom College to return to India for treatment of a fractured wrist, he was unable to commence the prerequisite Certificate IV course leading to the degree course with this provider; and that shortly before his visa was cancelled, he had obtained a release letter from the Department of Training and Workforce Development so that he could commence a Diploma course at the Global College.  The Tribunal has had regard to the applicant’s evidence, but does 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. 

    Past and present conduct of the visa holder towards the Department

12. According to the delegate’s decision record, there is no evidence that the applicant has been uncooperative towards the Department.  The Tribunal gives this little weight towards the visa not being cancelled.

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

13. The applicant indicated to the Tribunal that there was no reason he could not return to India and has not made any claims which would relate to this consideration. The Tribunal gives no weight to this consideration.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

14. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.  The Tribunal gives these consequences some limited weight in favour of not cancelling the visa.

    Whether there are any persons in Australia whose visas would, or may, be cancelled under s.140

15. There are no persons in Australia who would be affected by consequential cancellations in this case.

16. The Tribunal has carefully considered the applicant’s evidence at hearing, and the limited documents he has provided, and finds that, considering the circumstances as a whole, the visa should be cancelled.

    DECISION

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

    Nicola Findson
    Member