Sidhu (Migration)

[2019] AATA 1641

Sidhu (Migration) [2019] AATA 1641 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lakhwinder Singh Sidhu

CASE NUMBER:  1810697

HOME AFFAIRS REFERENCE(S):           BCC2018/168429

MEMBER:Brendan Darcy

DATE:20 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU student visa.

Statement made on 20 May 2019 at 12:09pm

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 – credible testimony – genuine student – accepted responsibility for non-compliance – will be separated from wife as a consequence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 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 10 April 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not been compliant with condition 8202 imposed on his student visa and that the grounds for cancellation outweighed those 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 16 May 2019] to give evidence and present arguments. The Tribunal also received oral evidence from Harkarman Breet, claiming to be his spouse via teleconference. 

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. During the hearing, the applicant explained that he was first granted a Class TU Subclass 573 student visa on17 December 2013 and arrived in Australia on 26 January 2014. He further was enrolled into an English language course, a Diploma of Business and Management at York Institute and a Bachelor of Business at Holmes College. He claimed that he did complete the English language and diploma-level course work but not the Bachelor’s degree.

9. As further discussed in the scheduled hearing, the applicant applied for a second Subclass 573 visa which was granted on 8 July 2016. The delegate’s decision states that this visa which under review in this decision, had a stay period extended up to and including 30 September 2019.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicated the applicant had not been enrolled in a registered course of study since 9 August 2017.

10. 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 19 March 2018, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe.

11. The applicant did not respond to the NOICC invitation at all.

12. A delegate on the Minister’s behalf proceeded to cancel the student visa on 10 April 2018.

13. The applicant applied to have the delegate’s decision reviewed by the Tribunal on 16 April 2018. Attached to the review application were a copy of the delegate’s cancelation decision and a copy of his then valid Indian passport.  At the scheduled hearing, the applicant did not dispute the grounds for cancellation existed as outlined above.

14. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study between 9 August 2017 and 10 April 2018 which is the date of cancellation – a period of about nine months.

15. During the scheduled hearing, the applicant did not dispute that that he had been non-compliant with condition 8202(2) as outlined above.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 9 August 2017 and 10 April 2018 for a nine month period.

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

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

18. 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’.

19. No submissions were provided to the Tribunal prior to the scheduled hearing.

20. At the end of the hearing, he was provided with a post hearing opportunity to submit any further material to support his claims and to do so by close of business on 17 May 2019.

21. The applicant provided an email indicating he engaged Wave Pty Ltd as his migrant agency from 2016, immediately after the hearing. No further submissions were received.

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

22. It is noted that the applicant had arrived in Australia in 2014 and completed an English language course and a Diploma in Business. In this regard, the Tribunal places some favourable weight in the visa not being cancelled.  

23. However he has not been able to complete his required Bachelor-level course subjects as a visa holder of two Subclass 573 visas. During the hearing, he said the he began the first semester of his degree but did not complete it. The applicant claimed that he wanted to achieve academically when he arrived but he did not do enough and found the degree-level course more difficult than anticipated. He said it was his original aim to complete a Master’s degree but he now believes that trade or vocational coursework would be more suitable to him as they were practical and there were many opportunities in the construction industry. He claimed no one guided him to change coursework or even visa subclasses.

24. The Tribunal found the applicant’s testimony to be beguiling credible in that he admitted the coursework was beyond and that he came to the realisation that he would prefer vocational training and education over higher educational attainments when he held a Subclass 573 visa whose purposes is to undertake higher education coursework on a full time basis. The Tribunal accepts this to be the applicant reliable and credible opinion about his academic inclinations and capacities. Had he advanced that he wanted to complete a Bachelor’s degree, the Tribunal would have not accepted this based on his poor academic record and substantial period of non-compliance with condition 8202.

25. Accordingly, the Tribunal accepts that the applicant travelled to Australia for the purposes of study and in favour of not cancelling his visa. It further finds that that the applicant has the motivation and capacity to study full time but in vocational coursework which is more suitable to his aptitude. It follows that the applicant is a genuine full-time student for the purposes of a Class TU visa but not for higher educational purposes.

26. Overall, the Tribunal places a considerable weight on this factor in favour of the visa not being reinstated.

    The extent of compliance with visa conditions

27. 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.

28. 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 nine months, is found to be substantial by the Tribunal.   The Tribunal gives this factor substantial weight towards the visa being cancelled.

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

29. 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.

30. During the scheduled hearing, the applicant claimed that he had not informed his parents of his visa’s cancellation and expressed his consternation in facing his parents’ disappointment. In admitting to the Tribunal that the applicant had not disclosed to his parents about his current migration status, the applicant also admitted that he taken money from his parents for tuition fees under false pretences. Asked whether the applicant could resume studies in India, the applicant responded by stating that he did not know.  The applicant did not advance any medical or psychological hardships arising from the visa remaining cancelled.

31. Whilst the Tribunal accepts that the applicant may suffer some hardship, including emotional, psychological and material hardship arising from his parent’s disappointment and the realisation by his parents that he was misusing money that otherwise should have been spent on tuition fees, if the visa remains cancelled, it finds on the evidence that he has not demonstrated any significant or severe or even notable hardships. The Tribunal gives these hardship considerations 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.

32. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as he was not enrolled in a registered Bachelor’s or Master’s course and had not been enrolled in any course work for as many as nine months since the cancellation of his visa.

33. The applicant did not disagree with this and admitted that made mistakes as he understood the conditions imposed on his visa since he first held a student visa and that the conditions are clearly outlined when the visas were issued.

34. The applicant claimed that he was unsuccessful in completing his first semester and that he disengaged with his studies, partially due to excessive drinking, which clouded his judgment about being non-compliant with condition 8202. The applicant claimed he was not an alcoholic or had seen a doctor or a counsellor about his drinking during this period of non-compliance. The Tribunal accepts these specific claims but finds these circumstances were not extenuating, in the sense that this situation lessens the seriousness of the breach, or that were beyond his control.

35. At the hearing, the applicant further advanced that his situation was complicated by a registered migration agent failed to pay his tuition fees for his Bachelor of Business. The applicant claimed he provided as much as 8600 Australian dollars’ worth of tuition fees. The applicant claimed the migration agent’s name was Mr Jasdeep Singh Chug and had been sanctioned by the Officer of Migration Agents Registration Authority (OMARA). The Tribunal was able to locate a 2018 news report that the aforementioned migration agent had been sanctioned (barred for five years) for defrauding a number of clients over Subclass 457 visa employer nominations (‘repeated fraudulent conduct’ and ‘blatant disregard of the law’).[1] This publicly available information went some way to support his otherwise unsubstantiated claim.

    [1] >

    However the applicant did not claim that he had any receipt of the cash deposited had been defrauded or that he could produce a statement of service for the money. He said he has never made a formal complaint to OMARA or even the police. Although he understood he had consumer protection options, the applicant said it was his mistake. While the applicant was provided with a post hearing submission which demonstrated that he previously engaged Mr Chug (Specifically, the applicant provided one email dating from 31 March 2016), the applicant was unable to satisfactorily explain the reasons he chose to an agent to pay for his tuition fee instalments instead of a direct debit arrangement between his own bank account and the education provider.

36. On balance and in the context of the applicant’s general frank and credible testimony, the Tribunal accepts the applicant had been defrauded in the manner as claimed. However it remained open to him not only pursue complaints against the migration or to have re-enrolled or to seek deferral or suspicion of studies on compassionate leave. As such, it is not accepted the applicant had extenuating circumstances, either in this specific regard, or in combination, with his drinking and other accepted circumstances, which led to the cancellation of his visa. Instead, it appears to the Tribunal that the applicant had knowingly breached condition 8202 and did not act in any meaningful way to avoid or mitigate any further non-compliance.

37. Overall, the Tribunal does not accept that there were any extenuating circumstances beyond the applicant’s control, leading to the cancellation of visa, although it has some sympathy about the lack of professional and ethical support he received from a barred migration agent. The Tribunal gives this factor, cumulatively considered, very little weight towards the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

38. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some little weight in his favour.

39. However, when the Tribunal enquired into the reasons he did not respond to the NOICC invitation. The applicant explained that he did breach the condition and would have preferred to have explained himself face-to-face. The Tribunal finds this explanation unsatisfactory as he was provided a reasonable opportunity to respond and he chose knowingly, albeit guilelessly, not to participate. The Tribunal places a little weight in this lack of responsiveness in favour of the applicant’s visa remaining cancelled.

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

40. 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

41. 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.

42. The applicant was visibly emotional in hearing that he would be barred from Australia for up to three years. He was provided a break, in part to talk to his spouse. When the applicant returned, he said it would be emotionally very difficult for him to be separated from his wife who held a temporary skilled graduate visa, for such a long period of time. The Tribunal also received testimony from the applicant’s spouse who said that it could be okay if her husband had to be away for three years as she will return to India to visit him on a regular basis. She said that it was her plan also that she returned to India in 2021 when her current visa expired. In consideration of this seemingly contradictory evidence, the Tribunal discerned in the context of the applicant’s tearful demeanour that his spouse offered this explanation to salve his fears of being separated.  

43. On balance, while the Tribunal gives the separation of the applicant from his wife arising from some of the mandatory legal consequences discussed some notable weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

44. The applicant’s spouse holds a Subclass 485 skilled graduate visa separately to his cancelled visa. The applicant and his spouse do not have any children. 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

45. No claim during the schedule hearing or in his post hearing submission was advanced that the applicant is seeking asylum or that anyone will specifically persecute him for any specific reason or purpose. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Any other relevant considerations

46. The Tribunal accepts that the applicant had been relatively immature and reckless in his decision making which led to the cancellation of this visa and it has accordingly made some accommodation for this as a consideration in favour of the visa not being cancelled.

    Conclusion

47. 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.

48. Overall, the Tribunal finds that the applicant any significant hardship to be faced if this visa remains cancelled or that the circumstances leading to the cancellation were beyond his control. Nevertheless the applicant has provided convincing and credible testimony that he is a genuine student whose purpose in travelling to Australia was full time study. The Tribunal has also places some weight on the applicant accepting responsibility for his non-compliance and its sympathy that he relied a former registered migration agent who had been sanctioned by the authorities for fraudulent conduct, as well as the prospect of being away from his spouse as a mandatory legal consequence.  

49. In this decision, the factors in favour of having the visa being reinstated, cumulatively considered, have outweighed those countervailing unfavourable factors towards having this student visa under review remained cancelling.

50. The applicant should be aware that the Tribunal reached this decision only marginally in his favour.

51. The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU Subclass 573 visas are not available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016. This is an opportunity for the applicant to apply for vocational level coursework.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

2. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU student 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.