Singh (Migration)

[2022] AATA 2586

Singh (Migration) [2022] AATA 2586 (28 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajdeep Singh

CASE NUMBER:  2206613

HOME AFFAIRS REFERENCE(S):          BCC2021/1492236

MEMBER:Vanessa Plain

DATE:28 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 28 July 2022 at 12:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – visa, study and work history – some courses completed, then cancellations of enrolment for non-commencement, non-payment or unsatisfactory course progress – new enrolment made after department’s notice issued – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 May 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study.  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 28 July 2022 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Punjabi languages.    

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 (Cth) (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?

7. 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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered courses.

9. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 31 October 2018 for the purpose of undertaking registered courses of study in Australia. Material before the Delegate indicated that the applicant completed an English for Academic Purposes course, a Certificate II in Security Operations and a Certificate III in Security Operations in 2019. A series of

   COEs were cancelled due to non-commencement of studies, non-payment of fees, and change to COE/student details. The applicant obtained approval on 22 March 2022 to commence a Diploma of Leadership and Management on 5 April 2022 and thereafter an Advanced Diploma of Leadership and Management on 26 April 2023.

10. PRISMS indicated that the applicant has not been enrolled in a registered course of study from 17 June 2020 to 22 March 2022, being a period of approximately one year and nine months.  

11. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 18 March 2020.

12. The applicant responded to the NOICC in writing on 24 March 2020.  In that response, the applicant did not specifically admit to grounds for cancellation of his visa, but he sought to explain the reasons for his period of non-enrolment and provide reasons why the visa should not be cancelled. The applicant’s reasons as set out in the Decision Record are as follows:

    ·When he commenced his Bachelor of Commerce he had difficulty understanding the subjects so he changed to a Certificate III in Light Vehicle Mechanical technology.

    ·The COE from Acumen College was cancelled on 17 June 2020 during the peak of the COVID 19 period which meant that he was unable to look around for education consultants or migration consultants.

    ·During this time he felt the need to help the Australian community by working in security in regional Victoria.

    ·During this time he was more concerned with contributing to the Australian community rather than working to earn money.

    ·On 31 December 2020 he was robbed which he states lead him to a marriage breakdown with his former wife.

    ·He is now confident about pursuing his studies enrolling in a Diploma of Leadership and Management and then an Advanced Diploma of Leadership and Management.

    ·He has never breached any conditions of his student visa and that he is a law abiding international student.

    ·Because he is now heading towards completing his study he is not in breach of his visa conditions.

    ·He has made a new student (subclass 500) visa application.

13. At the hearing, the Tribunal explained to the applicant that it was alleged by the delegate in the Decision Record that he was not enrolled in a course of study between 17 June 2020 to 22 March 2022.  The Tribunal further explained that it is a breach of a visa condition for a visa holder to fail to maintain enrolment in a registered course.  The Tribunal further explained that if the applicant had breached this visa condition, the question for the Tribunal then becomes whether or not the applicant’s visa should be cancelled. 

14. The applicant understood and stated to the Tribunal that he was not enrolled in a course of study between 17 June 2020 to 22 March 2022.      

15. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 17 June 2020 to 22 March 2022 and on that basis, he has not complied with condition 8202(2)(a).

    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.

17. 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’.

18. The Tribunal invited the applicant to provide reasons for his period of non enrolment if he wished.  In his sworn evidence at the hearing, the applicant provided the following evidence:

    ·He was not enrolled primarily due to COVID and the fact that he experienced a marriage breakdown which caused him immense stress, which Victoria Police and Ambulance Victoria were aware of.  Victoria Police made an application against him for an intervention order on behalf of his former wife.  He obtained assistance from an associate to assist him cope with the stress and anxiety he was experiencing and occasionally he sought medical assistance.  These are the main reasons for his period of non enrolment. 

    ·He stated further that if his visa is cancelled it will cause him hardship occasioned by the fact that he really wants to study in Australia and the cancellation will prevent him from doing that. causing him stress. 

19. In support of his application, the applicant submitted the following documents:

    ·COEs for a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management

    ·NOICC Response letter

    ·Police report .

    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      

20. The applicant was granted a Student (Temporary) (class TU) subclass 572 visa on 18 July 2016 for the purpose of undertaking registered courses of study in Australia.  He was subsequently granted a Student (subclass 500) visa on 15 February 2018 which ceased on 13 October 2018.  He was granted third student visa on 26 November 2018, however, a series of COEs were cancelled on 9 January 2019 due to unsatisfactory course progress and non commencement of studies.

21. The applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 31 October 2018 for the purpose of undertaking registered courses of study in Australia. The applicant completed an English for Academic Purposes course, a Certificate II in Security Operations and a Certificate III in Security Operations in 2019. A series of COEs were cancelled due to non-commencement of studies, non-payment of fees, and change to COE/student details. The applicant obtained approval on 22 March 2022 to commence a Diploma of Leadership and Management on 5 April 2022 and has commenced that course.  He is thereafter enrolled in an Advanced Diploma of Leadership and Management scheduled to commence on 26 April 2023.

22. The Tribunal acknowledges that the applicant has completed some vocational level qualifications, however it considers the period of non enrolment to be a substantial period during which time the purpose of the applicant’s stay was not for study, and not in line with the purpose for which his Student visa was granted.  Although the applicant has obtained a new enrolment in a Diploma of Leadership and Management, the Tribunal is of the view that this enrolment has been procured in advance of the hearing and after receipt of the NOICC to alleviate concerns about non enrollment, rather than out of any genuine desire on the part of the applicant to study the particular course. 

23. The Tribunal gives these considerations some weight towards the visa being cancelled.     

    The extent of compliance with visa conditions

24. The applicant has not complied with condition 8202(2)(a).  The applicant has provided reasons for the breach which are set out above.  The Tribunal acknowledges that there is no other evidence before it of breaches of other visa conditions.  However, the duration of the non compliance with condition 8202(2)(a) is significant and the Tribunal considers that the requirement to maintain enrolment is a fundamental condition for the grant of a Student visa.

25. The Tribunal gives these considerations some weight in favour of the visa being cancelled.

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

27. The Tribunal acknowledges that the applicant’s statement that he will not be able to complete his Australia studies which will cause him hardship.  The Tribunal further takes into account the fact that the applicant has clearly endured emotional trauma associated with the breakdown of his marriage.  However, there is no evidence before the Tribunal to suggest that the applicant cannot pursue further study in his home country.

28. Based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

29. The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study from 17 June 2020 to 22 March 2022.  He did not re-enroll in a course until after receipt of the NOICC.

30. The Tribunal acknowledges and takes into account all the reasons as set out above that the applicant has provided in writing and in his oral evidence that speak to why he was not enrolled between 17 June 2020 to 22 March 2022.  There was no evidence before the Tribunal to the effect that the applicant’s classes ceased to operate as a result of the pandemic or medical evidence to the effect that the trauma of the applicant’s marriage breakdown prevented him from undertaking study.  Therefore, the Tribunal cannot be satisfied that the circumstances which led to the period of non enrolment were truly outside of the control of the applicant

31. The Tribunal gives this consideration significant weight in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

32. The applicant has conducted himself in good faith in his dealings with the Department and its staff.  He responded to the NOICC promptly and in some detail. 

33. The Tribunal gives this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

34. There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled.  The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.   

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

35. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country or apply for a bridging visa pending the outcome of his partner visa application.  However, these are mandatory consequences of the legislation and in view of the fact that the Tribunal has found that the reason for the breach of the visa condition was reasonably within the control of the applicant, the Tribunal gives this little weight in favour of the visa not being cancelled.   

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation   

36. Relevant Departmental policy instructions (Procedural Advice Manual 3) relating to family separations states (at [76]) as follows:

    “Obligations apply to persons within Australia’s territory and also to persons within Australia’s jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)...”

37. Australia is a signatory to the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR).  Article 3.1 of the CROC provides as follows:

    “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”

38. Australia is also a signatory to the International Covenant on Civil and Political Rights (ICCPR).  Article 23.1 of ICCPR provides as follows:

    “The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State...”

39. There is no evidence before the Tribunal of any children of the applicant.  The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.    

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

40. Not applicable.

    Any other relevant matters

41. There are no other relevant matters for consideration.   

42. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.

43. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

44. 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.

    Vanessa Plain
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.