Sangha (Migration)

[2018] AATA 3501

Sangha (Migration) [2018] AATA 3501 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhdeep Singh Sangha

CASE NUMBER:  1703922

HOME AFFAIRS REFERENCE(S):           BCC2016/4314206

MEMBER:Jason Pennell

DATE:7 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 7 August 2018 at 3.49pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Course enrolment – Poor academic history – Gap in enrolment – Returned to India to care for mother – Hardship – Unable to earn money to send home – Decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 28 February 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 had not complied with a condition of 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 appeared before the Tribunal on 1 June 2018 to give evidence and present arguments.

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

5.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

6.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.

7.The applicant was granted a Student (Temporary)(class TU) Higher Education Sector (subclass 573) on 2 August 2013. He travelled to Australia on 17 August 2013 and has completed certificate III in Commercial Cookery and certificate IV in Commercial Cookery. The applicant failed to commence a Diploma of Hospitality on 11 April 2016.  By a letter dated 8 February 2017 Scott’s College confirmed the applicant’s enrolment in a Bachelor of Business that was due to commence on 17 March 2017.   

8.On 11 January 2016, the applicant obtained approval for the South Pacific Institute to suspend his studies from 11 January 2016 to 21 February 2016 on compassionate grounds. The applicant returned to India on 11 January 2016 to care of his mother and returned to Australia on 1 March 2016.

9.A Notice of Intention to Consider Cancellation (NOICC) dated 6 February 2017 was sent to the applicant advising that he was in breach of a condition of his visa. The tribunal received a response for the applicant on 10 February 2017 advising that he did not agree that there were grounds to cancel his visa by reason that:

(a)The applicant arrived in Australia on 17 August 2016 to study in Australia.

(b)The applicant had been enrolled in a registered course in accordance with the conditions of his student visa since entering Australia.

(c)The applicant had completed being, a certificate III in Commercial Cookery and certificate IV in Commercial Cookery.

(d)The applicant had to return to India to look after his mother and was unable to complete his certificate IV.

(e)That the applicant had an approved deferment from South Pacific Institute for the period 11 January 2016 to 21 February 2016.

(f)The applicant did not agree that he had not been studying and stated that the notice was invalid and incorrect.

(g)The applicant requested that he be exempted on compelling and compassionate grounds.

10.In addition the applicant provided the following documents:

(a)Suspension letter from the education provider, Sher-E-Punjab Pty Ltd (trading as South Pacific Institute) (the ‘South Pacific Institute’) dated 11 January 2016.

(b)Certificates of completion for vocational level studies.

(c)Statutory declaration by the applicant dated 10 January 2017.

(d)Letter from Stott’s College dated 8 February 2017 confirming enrolment commencing 17 March 2017.

(e)Undated Medical Certificate from Sharma General and Women’s Hospital and Panch Karma Centre in relation to the applicant’s mother (‘the medical report’).

11.The delegate cancelled the visa on 28 February 20176 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 4 May 2016.

12.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.

Did the applicant comply with Condition 8202?

13.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).

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

15.The delegate’s decision outlined that the applicant had not been enrolled in a registered course of study since 4 May 2016. The applicant responded to the NOICC dated 6 February 2017 by providing the documentation to the department referred to above on 10 February 2017. The applicant disputed the grounds for cancellation and claimed that he had been studying. He claimed that the notice was invalid and incorrect and requested that he be exempted on compelling and compassionate grounds.

16.However, the Department of Education, Overseas Students Confirmation of Enrolment (COE) No 6A344858 confirms that the applicant had applied to South Pacific Institute to be enrolled in a Diploma of Hospitality commencing on 11 April 2016, however, on 4 May 2016, the applicant’s education provider notified the Department that the applicant had ceased studies and was no longer enrolled. The Provider Registration and International Student Management System (PRISMS) displays that the applicant was enrolled in the Diploma of Hospitality on 11 April 2016 but that the applicants enrolment was cancelled due to non-commencement of studies. It appears that the applicant was not enrolled in a registered course of study from 4 May 2016 to 8 February 2017, a period of 9 months and 4 days.  

17.The Tribunal notes that enrolment in a course of study in a registered course was, at all times, a condition of the applicant's subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.

18.On the evidence before the Tribunal, 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

19.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’

Applicants purpose of traveling and staying in Australia.

20.During the course of the hearing the applicant confirmed that his intended purpose in traveling and staying in Australia was to study. However, Provider Registration and International Student Management System (PRISMS) records that the applicant has not been enrolled in a registered course since 4 May 2016 to 8 February 2017, a period of 9 months and 4 days. 

21.On 11 January 2016 the South Pacific Institute granted the applicant a deferment of his studies from 11 January 2016 to 21 February 2016. The letter from the South Pacific Institute dated 11 January 2016 confirms that even though the education provider has approved the applicant application for suspension of enrolment, the Department may not accept the reasons provided and, may cancel the applicant’s visa.[1] The applicant did not return to Australia until 1 March 2016 and did not recommence his studies upon his return to Australia.

[1] Letter from South Pacific Institute dated 11 January 2016.

22.At the time the NOICC was sent on 6 February 2017, the applicant had not held a relevant or current COE since 4 May 2016. Since receiving the NOICC the applicant enlivened a new COE by the letter dated 8 February 2017 Scott’s College confirming his enrolment in a Bachelor of Business commencing 17 March 2017. 

23.Accordingly, the Tribunal gives little weight to the applicant’s statement that the purpose of her traveling and staying in Australia was to study. 

Compliance with visa conditions

24.The applicant was not enrolled in a registered course from 4 May 2016 to 8 February 2017 a period of 9 months and 4 days. During that period the applicant remained in Australia without having complied with the conditions of his visa. The applicant only re enrolled in a registered course after having received the NOICC. The Tribunal considers that applicant’s non-compliance with his visa conditions is significant and as such gives little weight in favour of the applicant in considering this factor.

The degree of hardship that may be caused to the Applicant. 

25.The applicant did not raise any specific matters of hardship in the hearing. However, in response to the Tribunal concerning any hardship he may suffer the applicant said that his father did not earn enough money in India to support his family without the income provided by the applicant. Therefore, while the Tribunal acknowledges that the applicant will suffer some hardship in the event that his visa is cancelled, including not being able to earn money in Australia to send home to his family, the applicant was aware of the conditions of the visa. The purpose of the visa is to allow the applicant to study in Australia rather than earn money for his family. In such circumstances the Tribunal places little weight on the hardship identified by the applicant.

26.The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

27.The Tribunal accepts that if the applicant’s visa is cancelled he will suffer some hardship by having to return to India and as such has given some weight to hardship the applicant will suffer in the event his visa is cancelled in making its decision.

The circumstances in which the grounds for cancellation arose

28.The applicant claims that any breach of the conditions of the visa (which he denies) arises as a result of the fact that his mother was ill and that he was required to return to India to care for her. The medical report states that his mother suffered for Lumber Sciatica, that she requires assistance for her day to day activities and that she required one month’s rest. The applicant claims that he was the only member of his family available to look after his mother and as a result he returned home to care for her. The Tribunal accepts that the applicants evidence that his mother was suffering from Lumber Sciatica and that she required his assistance and care for a period of one moth for 11 January 2016.

29.However, the applicant returned to Australia on 1 March 2016. The applicant claims that as a result of returning to Australia one week late he was not able finish the certificate IV Commercial Cooking course on time and completed the course in July 2016.The tribunal accepts the applicant’s evidence in relation his completion of the certificate IV course and finds that he completed it in July 2016.

30.Given that the applicant arrived back in Australia on 1 March 2016 there appears to be no reason why he was not able to commence the Diploma of Hospitality course on 11 April 2016.  Rather, the applicant claimed that he commenced attending class for the Diploma of Hospitality in July 2016 that is, after the applicant’s education provider cancelled his enrolment in the course on 4 May 2016. The reason for his enrolment being cancelled was that he had failed to commence the course on 11 April 2016. It is unlikely that the applicant would have attended class after his enrolment in the course had been cancelled in circumstances where he had opportunity to attend at the commencement of the course. Accordingly, the Tribunal does not accept the applicant’s evidence and finds that he did not attend classes in relation to the Diploma of Hospitality course in July 2016 as claimed.

31.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

32.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

33.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

34.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

35.The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

36.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

37.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Jason Pennell
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.