SANDHU (Migration)

[2019] AATA 1969

SANDHU (Migration) [2019] AATA 1969 (26 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harmanpreet Singh SANDHU

CASE NUMBER:  1715858

HOME AFFAIRS REFERENCE(S):           BCC2017/1584467

MEMBER:Brendan Darcy

DATE:26 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2019 at 12:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Hospitality Management – not enrolled in registered course for more than 10 months – enrolment cancelled seven months after grant of visa – lack of academic progress – financial hardship – no extenuating circumstances led to cancellation – no significant hardships arise from cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994(Cth), r 2.43, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 July 2017 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 breached condition 8202 as the grounds for cancellation and that the grounds for cancellation of this visa outweighed the grounds for not cancelling. 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 8 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

5. 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?

6. 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).

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

8. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 6 February 2016 and the stay period of the visa was extended up to and including 15 March 2019.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study in a Bachelor degree and that he had not been enrolled any further coursework of any kind since 13 September 2016.

9. The departmental file indicates that that the applicant was contacted by a departmental official by email prior to issuing the Notice of Intention to Consider Cancellation (NOICC) on 20 June 2017, inviting the applicant to provide reasons not cancel the student visa in writing and do to so within five days.

10. The applicant did not respond to the validly issued NOICC.  A delegate on the Minister’s behalf proceeded to cancel the student visa on 17 July 2017.

11. The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal on 21 July 2017. Attached to the review application was a copy of the delegate’s decision.

12. At the scheduled hearing, the applicant did not dispute the grounds for cancellation existed.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study between 13 September 2016 and 17 July 2016 (the date of cancellation) – a period of just over ten (10) months. 

14. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2).

15. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) arises.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

16. 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’.

17. While the applicant responded to the hearing invitation, no documents or submissions were submitted prior to or on the day of the scheduled hearing.

18. At the end of the scheduled hearing, no post hearing submissions were required. No documents or submissions were forwarded to the Tribunal, either by the applicant or on his behalf, right up to the time of making this decision.

    The purpose of the visa holder’s travel to and stay in Australia

19. It is noted that the applicant had arrived in Australia in early 2016 and had enrolled in a Bachelor’s degree in hospitality management. He claimed to have started the coursework but did not complete it. Indeed his enrolment was cancelled only seven months after the grant of the visa and he did not attempt to re-enrol in any further coursework. This lack of academic progress strongly indicated to the Tribunal the applicant did not travel place to  travel to Australia for the purposes of study.

20. During the hearing, the applicant was invited to elaborate on the reasons he travelled to Australia. He responded by stating that he came to Australia for a good future and that he was interested in completing a Bachelor degree for a good job. He was further asked to elaborate on his specific career goals; to which he responded that he wished to work in management. However the applicant was unable to elaborate as the kind of management role for which he was held an ambition other than to vaguely state that he wanted to be in management and to organise. The applicant was also given another opportunity at the endo of the hearing to elaborate on his career goals. Again he failed to provide much detail other than expressing a vague desire to work for an international company. Given the applicant had enrolled in a Bachelor of Hospitality Management it would have been reasonable to expect him to relevantly nominate a management role in catering, restaurants or hotel management. However he did not. These very vague and limited responses to otherwise straightforward questions strongly indicated to the Tribunal that the applicant did not travel to Australia for the purposes for which his student visa was granted.

21. The applicant also stated that his family had dreams for him as a graduate with an Australian qualification. The Tribunal accepts this but this incentive has not proved to have strongly motivated him given the degree of his non-compliance with condition 8202.

22. Talking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives this little weight in favour of the visa not being cancelled or being a genuine full-time student capable of upholding the conditions on his visa if it were to be reinstated. 

    The extent of compliance with visa conditions

23. During the scheduled hearing, the applicant claimed that he upheld the other conditions of visa and has only worked part time as required while a student visa holder. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The Tribunal gives these factors some weight in favour of the applicant.

24. The extent of non-compliance of condition 8202(2), in which the applicant was not enrolled in a Bachelor’s or Master’s degree for just over ten months, is found to be substantial and significant by the Tribunal.  The Tribunal gives this factor significant weight towards the visa being cancelled.

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

25. The delegate’s decision stated that he or she was unaware of specific hardships arising from this cancellation given the applicant’s lack of response to the NOICC but gave this factor little weight in his favour.

26. During the scheduled hearing, the applicant stated that he failed to complete his studies over three years and he was unsure if he could undertake studies in India if the visa remained cancelled. He expressed his dislike for studying in India and that there were not many job opportunities in his home country as he belongs to a normal family in a village. He also expressed his concern that his peers back in India were now more academically advanced than there and he had already spent a lot of money on tuition fees and did not want to disappoint his family in not successfully completing his coursework.

27. He also mentioned that his parents continued to support him and that his sister in underrating a Bachelor of Arts degree in India.

28. While the Tribunal accepts there will be some difficulties and disappointments in returning to India, the Tribunal does not accept that the degree of financial or emotional hardship to be faced by the applicant will be considerable, significant or even notable as he will be returning to a supportive family in a country whose growing economy will continue to provide job opportunities and where he can enrol in any further, perhaps more suitable, studies should be chose to do so.

29. On the evidence, the applicant has not demonstrated any significant or even notable hardships of any kind. The Tribunal gives this hardship considerations only little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

30. The applicant was not meeting condition 8202 attached to his student visa within a relatively short period of time since the grant of the visa. There is no evidence that he attempted to re-enrol after the non-compliance.

31. At the hearing the applicant claimed that when he came here he could not find a job and that his parents do not have enough money. He said that everything was new and he did not feel comfortable. He subsequently felt lonely and homesick and did not attempt to make friendships as he was shy. The Tribunal does not accept that the applicant could not find work in Melbourne where many students find work in unskilled employment without references, given the strong labour market in Australia.

32. The applicant further explained that there was a tragedy in his family over loans in which his family owed the equivalent in 16,000 Australian dollars. He claimed that the borrower was a private individual who had asked for the money back which caused financial stress on his family and their inability to support the applicant’s education in Australia. The Tribunal does not accept this to be a tragedy as his parents voluntarily entered into this loan agreement. To the applicant’s knowledge, he was not aware any of his family members back in India had been threatened. The Tribunal notes that it is unusual that a borrower of relatively large sum of money to demand suddenly the entire loan amount to be returned when charging interests based on instalments would generate more income to the borrower.

33. It was claimed that it was the combination of these two reasons – lack of paid employment in Australia and the sudden loan repayment back in India – to explain how the non-compliance with condition 8202 came about and his inability to mitigate that non-compliance through re-enrolment.

34. Overall, the Tribunal finds these explanations as extenuating circumstances to have been limited, vague, implausible and unpersuasive. The Tribunal does not accept the applicant was unable to find part time work in Australia or that his family’s claimed financial situation was urgent, tragic or genuine extenuating circumstances. Based on these adverse credibility findings against the applicant’s weak claims regarding his circumstances that led to the cancellation of his visa, the Tribunal does not accept that there were any extenuating circumstances beyond the applicant’s control to explain his non-compliance with condition 8202 or his capacity to mitigate that non-compliance. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

35. According to the decision record, the applicant did not respond to the NOICC. When the Tribunal sought reasons for this non-responsiveness, the applicant replied that he could not think about it as he was aware of his non-compliance and was scared. He said he did not contact a registered migration agent to advice or assist him. The Tribunal finds these responses unsatisfactory given he had the opportunity to meaningfully participate in avoiding the cancellation of his visa when the NOICC was validly issued.

36. The Tribunal is not aware of any of the adverse conduct with either the Department or the Tribunal, either in the past or the present. Overall it gives this factor some little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

37. Not relevant.

    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

38. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. The applicant stated that he did not face these things and simply wanted to return to his studies. As the applicant did not satisfactorily elaborate on these legal consequences and that it is accepted there is some adverse but not serious consequences to the applicant in having this visa cancelled, the Tribunal gives these considerations only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

39. The applicant has no dependants. 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

40. At the scheduled hearing, the applicant stated that he had no fears of harm by any state or non-state actors. He feared not returning to India without an Australian qualification which would not be good for his future.  There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Any other relevant considerations

41. During the hearing, the Tribunal raised with the applicant whether there were any other factors relevant to its decision making he wish to nominate.  He stated that he made the wrong decisions and genuinely wanted to return to his studies. The Tribunal raised with the applicant his relatively young age as a person in their early twenties. The applicant with a downcast demeanour restated that he made incorrect decisions which he regretted. The Tribunal accepts the remorse is genuine and that his immaturity was a factor in his non-compliance. In this regard, the Tribunal has some sympathy for the applicant. However, in the context of his otherwise vague reasons the purpose of his travel to Australia and his incredulous explanations for his non-compliance, the Tribunal is unable to provide the applicant the benefit of the doubt that he is genuinely motivated to become a full time student who will be compliant with any conditions imposed on further granted student visa. 

    Conclusion

42. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

43. The fact remains the applicant was in breach of condition 8202 for a substantial period of time. The applicant did not satisfactorily demonstrate that he is a genuine student strongly motivated to complete a Bachelor’s or a Master’s degree or that the  applicant is unlikely to be compliant in upholding conditions on any future student visa. Neither did he establish any credible extenuating circumstances leading to the cancellation of the visa. Nor did he demonstrate any significant or even notable hardships arising from this cancellation remaining in place. In this decision, specific unfavourable factors, cumulatively considered, are found to be significant and they considerably outweigh those countervailing favourable factors towards not cancelling the applicant’s student visa.

44. In considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.