Singh (Migration)

[2021] AATA 1218

Singh (Migration) [2021] AATA 1218 (25 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bishal Singh

CASE NUMBER:  1935563

HOME AFFAIRS REFERENCE(S):          BCC2019/3261999

MEMBER:Jennifer Cripps Watts

DATE:25 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 April 2021 @ 3:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled at level required by visa condition – request for deferral of higher-level course not granted – cessation of course and gap in study – cancellation of enrolment in lower-level course – no completed study or current enrolment – attempts and intention to re-enrol at original level – discretion to cancel visa – young age, health, travel to home country and mother’s death – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 December 2019 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the applicant’s Subclass 500 (Student) 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 that required he be enrolled in a full time course of study, at the same or a higher level than the registered course in relation to which the visa was granted, relevantly a bachelor degree; condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). 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. On 17 December 2019, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.  He was invited to attend a scheduled hearing and appeared before the Tribunal on 20 June 2020 to give evidence and present arguments.  The applicant was given the option to request an interpreter when the hearing invitation was sent, but did not request one.  Before taking evidence, the Tribunal confirmed with the applicant that he did not request or require an interpreter and is satisfied that his English was of a high standard and that he participated fully in the hearing.  There was occasional clarification sought, by the applicant and the member, which is not unusual in migration hearings where people do not necessarily speak a common first language.

4. When exercising its discretion to have the hearing by phone, in the circumstances of this case and given the restrictions on people's movements due to the COVID-19 pandemic and that most tribunals and courts in Australia were conducting remote hearings, the Tribunal was satisfied that having a phone hearing would not prejudice the applicant’s right to a fair hearing.  The issue on the review is the same substantive issue as was before the delegate.

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 Regulations.

7. The Tribunal has had regard to information on the Department and Tribunal files, the oral evidence given by the applicant at the scheduled hearing and to any other matters relevant to the material issue on the review. 

8. The applicant is a Nepalese national, born in 1995.  He was granted a student visa in 2014 to study a bachelor degree and commenced residing in Australia, holding that visa, late in 2014.  He was granted a Subclass 500 temporary student visa that is the subject of this review on 3 November 2017 that would have naturally ceased on 22 May 2020. The visa was granted also relating to the applicant’s enrolment in a bachelor degree, which is at an Australian Qualifications Framework (AQF) Level 7 (Bachelor Degree).  It is included in the delegate’s decision that the applicant’s enrolment in the bachelor course was cancelled by the education provider on 28 March 2018, with the notation ‘Student Notifies Cessation of Studies’.

9. On 27 September 2019, some 18 or so months later, the applicant enrolled in a Diploma of Information Technology, an AQF Level 5 course.  On 14 November 2019, the Department wrote to the applicant by way of a Notice of Intention to Consider Cancellation (NOICC), which informed him, essentially, that he was non-compliant with a visa condition because he was not enrolled in an AQF Level 7 course or higher and that the Minister was considering cancellation of his visa on that basis. 

10. On 27 November 2019, the applicant responded to the NOICC.  He did not dispute that he was not enrolled in a bachelor degree course, but claimed that there were circumstances that were beyond his control that had affected his ability to maintain enrolment in a course at the required bachelor or higher level.  The applicant advised that he was, at that time, enrolled in a Diploma of Information Technology and that he intended to commence a Bachelor of Accounting in January 2020.  He provided an offer letter from the education provider, some medical reports and documents, for himself and his mother, plus a flight itinerary. 

11. At the time of the cancellation of the visa, 22 May 2020, the applicant was enrolled in a diploma course, AQF Level 5 and had a letter of offer to commence a Bachelor of Accounting with Group Colleges Australia from January 2020 to December 2022.  At the scheduled hearing in June 2020, the applicant was asked about any current enrolments and said he was not enrolled in any course of study.  In December 2020, the applicant was invited to provide any additional information before a decision was made and provided nothing further. 

    Did the applicant comply with Condition 8202?

12. Relevantly in this case, the applicant must be enrolled, and maintain enrolment, in a full time registered course at the AQF level of the registered course for which the visa was granted: 8202(2)(a) and (b).  The visa was granted on the basis of the applicant’s enrolment in a bachelor degree, an AQF Level 7 course.

13. On the evidence before the Tribunal, the applicant is not enrolled in a full time registered course.  Accordingly, the applicant has not complied with condition 8202(2).  He does not dispute that he has been non-compliant with condition 8202(2), but claims there are reasons why the Tribunal should exercise its discretion to set aside the cancellation.

    Consideration of the discretion to cancel the visa

14. 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 has used for guidance matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

15. The Tribunal has not weighed any matters that that are against the applicant, because the ground for cancellation has already been made out.  The applicant claims, essentially, that his young age on arrival in Australia in 2014, his health and his mother’s death, and the associated stresses and other issues associated with these events, underpin the request that the Tribunal exercise its discretion to set aside the cancellation of his visa.

    Purpose of the applicant’s travel and stay in Australia and need to remain in Australia

16. The applicant arrived in Australia in 2014 holding a Subclass 573 student visa.  In November 2017, the applicant was granted a second student visa, the Subclass 500 temporary visa that is the subject of this review, for an enrolment in a Bachelor degree at AQF Level 7.  As already noted, the applicant’s enrolment in the bachelor course was cancelled on 28 March 2018.  The applicant had requested deferral, but the education provider did not grant it and so he cancelled the course instead enrolled in a Certificate IV in Cookery at Duke College, an AQF Level 4 course; not at or above the AQF Level 7 requirement.  He deferred the commencement date to travel back to his home country for surgery on his leg and to visit his mother.  He did not meet course requirements and his enrolment was cancelled.  The applicant later enrolled in another VET course.

17. The purpose of the applicant’s travel and stay was to study a registered course while holding a student visa.  The visa that has been cancelled was granted relating to the applicant’s enrolment in an AQF Level 7 Bachelor degree.  He has not maintained enrolment or studied at AQF Level 7 or higher.  It is acknowledged by the Tribunal that the applicant has suffered health problems and stress relating to his family, including the death of his mother.  However, since his visa that is the subject of this review was cancelled, the applicant has not resided in the Australia for the purpose for which the visa was granted.  That is, to study a bachelor degree or higher.

18. The applicant has attempted some study, but at the lower Diploma or VET level. 

    Extent of compliance with visa conditions

19. The applicant was granted the Subclass 500 visa in November 2017 for three years and, in March 2018, his enrolment in the Bachelor degree relating to the visa granted was cancelled.  The purpose for which the visa was granted, in this case, was to study a bachelor degree.  The applicant became non-compliant with condition 8202(2) only a matter of a few months after the visa was granted to him for three years.  There is no information before the Tribunal that the applicant has been otherwise non-compliant with any other visa conditions.  However, this balances against the non-compliance with condition 8202(2), which goes to a mandatory requirement for the grant of the visa, and considered to be serious non-compliance.

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

20. The applicant gave oral evidence at the scheduled hearing, essentially in the same terms as his written response to the NOICC, relating to the struggles he claims to have had over the last few years.  He said wants to be given another chance because he has just ‘come out of a big depression’, that he ‘will be a disgrace to the family’, and that he feels sure that he will soon be enrolled in a bachelor degree and that he will not be able to deal with cancellation of his visa.

21. The applicant gave oral evidence that the offer he had to commence a Bachelor of Accounting in January 2020 was withdrawn.  It was put to him that the Tribunal had concerns that he is, more than two years later (from March 2018 when his enrolment was cancelled), still not enrolled in a bachelor degree.  The applicant responded that he intends to apply to VU University in Sydney to study a Bachelor of Information Technology, after he finishes the Diploma of Information Technology.   

22. It is accepted that the applicant has made attempts to try to be in a position where he can apply for entry to a bachelor degree through his study at diploma level, and that he will be financially out of pocket for any fees he has paid.  It is accepted that he has had struggles and stresses in his life over the last few years, including his own physical and mental health, and the passing of his mother.  The Tribunal accepts that these events have caused the applicant to suffer some level of psychological and emotional hardship.  However, the applicant’s claim that he will enrol in a bachelor degree when he finishes his diploma is not given much weight. 

23. The applicant gave oral evidence at the scheduled hearing that he has no immediate family members in Australia, and nor does have any property, such as a car, or other financial liabilities. 

24. Notwithstanding that the applicant has and probably will suffer some hardship as a result of the cancellation of his Subclass 500 student visa, and his family in Nepal may also be distressed, these are matters that can only be given minimal positive weight in the circumstances.

    Circumstances in which the cancellation arose

25. At the scheduled hearing, elaborating on the information already provided to the Department in his NOICC response and other documents, the applicant explained the circumstances relating to the cancellation of his enrolment in the bachelor degree in March 2018.  He said that during the period he was enrolled, he was working and then he hurt his finger.  A discharge summary relating to the finger injury was provided saying that he was unfit for usual activities from 13 to 28 March 2018.  It is accepted the applicant had a finger injury but it is not considered to be a plausible a finger injury would have prevented him from studying, if he was motivated to do so, or that the two week absence was substantially the cause of his cancelled enrolment.

26. The applicant first came to Australia when he was quite young, in 2014, and says that his age and inexperience affected his ability to settle in to life in Sydney, away from his family, which it is reasonable to think may have been the case.  Essentially, in around March 2018, the applicant asked the education provider if he could defer his bachelor course.  He intended to travel back to Nepal for surgery on his leg and to see his mother.  They did not agree to the deferral, and his enrolment was cancelled on 28 March 2018.  The applicant enrolled in a lower level VET course and travelled to Nepal.  That enrolment was later cancelled when, on his return from Nepal, the applicant did not meet course requirements.

27. For around 18 months, while it is acknowledged he enrolled in study at the lower VET level, the applicant did undertake study at an AQF Level 7 bachelor degree or higher.  On 27 September 2019, the applicant enrolled in a Diploma of Information Technology, AQF Level 5, which appears to have come to the attention of the Department resulting in the issuing of the NOICC relating to the applicant’s non-compliance with condition 8202(2) of his Subclass 500 visa.

28. It is not an insignificant matter that the applicant confirmed, in writing, in his NOICC response received by the Department on 28 November 2019, that he was aware of the nature of condition 8202(2) to Schedule 8 of the Regulations and knew that he needed to maintain enrolment at least in a Bachelor (or higher) degree while he held the Subclass 500 visa and, notwithstanding this stated knowledge, he ceased enrolment in the Bachelor degree on 28 March 2018 and enrolled in a lower level VET course without taking any steps to report the change to his circumstances to the Department until he responded to the NOICC in November 2019.

29. In September 2019, he was formally put on notice, when he enrolled in another VET course while still holding the Subclass 500 visa, that he was in breach of condition 8202(2).  In his response to the NOICC, the applicant confirmed he was aware that he knew his visa was granted for a Bachelor degree and he ‘shouldn’t have joined any VET courses as that would lead to the cancellation of VISA’.  He was knowingly non-compliant with the condition.

30. It is a visa holder’s responsibility to be aware of the conditions attached to their visa and ensure they comply with them and to be aware of the consequences of non-compliance.  On the evidence, the Tribunal is satisfied that the applicant indicated that he was aware of condition 8202(2) relating to his student visa, he knew he had not been compliant with the condition since 28 March 2018 and was aware of the consequences of non-compliance.   It was a matter for him to decide what steps to take in the circumstances he was in relating to his enrolments and study and he has stated that he decided to enrol in VET courses when he knew he shouldn’t have.

31. The applicant claims that matters beyond his control contributed to the circumstances in which his visa was cancelled.  The Tribunal, while acknowledging that the applicant had some personal, family and health issues, is not persuaded that it was beyond the applicant’s control to mitigate against the cancellation of his visa because he was not enrolled in a suitable course. 

    Past and present behaviour towards the Department

32. There is no information before the Tribunal that indicates the applicant to have been unco-operative or unresponsive in dealings with the Department.

    Whether there would be consequential cancellations under s.140

33. The applicant has not declared any dependent family members and there is no-one whose visa will be cancelled under s.140 of the Act as a consequence of cancellation of the applicant’s Subclass 500 student visa.

    Mandatory legal consequences

34. The applicant currently holds a bridging visa relating to the Subclass 500 visa cancellation. If the cancellation is not set aside, the applicant will be required to depart Australia and, if he does not, will become unlawful which may result in his being detained under s.198 of the Act. He may also be subject to what is commonly referred to as a s.48 bar, which means that he would have very limited options relating to other visa applications he could make onshore or within three years.

    International obligations, including non-refoulement and best interests of children

35. The applicant has not claimed, nor is there any information before the Tribunal, that indicates that cancellation and the applicant’s removal from Australia and return to his home country will result in Australia breaching its international obligations, including non-refoulement obligations.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Jennifer Cripps Watts
    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.