Singh (Migration)

[2021] AATA 545

Singh (Migration) [2021] AATA 545 (31 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhjeet Singh

CASE NUMBER:  1919232

HOME AFFAIRS REFERENCE(S):          BCC2019/1514625

MEMBER:Jennifer Cripps Watts

DATE:31 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 31 January 2021 at 2:56pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant non-compliance with an essential condition of the visa – decision under review affirmed

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 15 July 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 holder of a visa may be cancelled by the Minister if they are satisfied that the holder has not complied with a condition of the visa: s.116(1)(b). Relevantly in this case, among other things, while holding the Subclass 500 visa that was granted on 12 April 2018 and that is the subject of this review, the applicant was required to be enrolled in a full-time course: condition 8202(2)(a) of Schedule 8 to the Regulations.

3. The applicant was found by the delegate to have breached condition 8202(2)(a) because he was not enrolled in a registered course and, on that basis, the delegate found that the ground for cancellation existed and, in their discretion, the delegate decided the visa should be cancelled.  The visa was cancelled and the applicant was notified of the cancellation of his visa on 16 July 2019.  On the same day, the applicant lodged a review application and, on 5 June 2020 he was invited to attend a scheduled hearing.  Due to COVID-19 restrictions, the Tribunal, and most other courts and tribunals in Australia, were not conducting face to face hearings.  Matters that could be dealt with by phone were identified and the applicant was informed that the Tribunal had made arrangements for him to appear by phone on at 11:00am on 30 June 2020.

4. The applicant appeared before the Tribunal by phone at the scheduled time to give evidence and present arguments.  The Tribunal is satisfied that the phone lines were clear and all who attended could be heard and understood.  Occasional clarification was sought by both the Tribunal and applicant, which is not unusual in migration hearings even when applicants appear in person.  The applicant confirmed that the mobile connection was good.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. On 15 December 2020, as a few months had passed since the Tribunal hearing, the applicant was sent a letter by email inviting him to provide any additional information he would like the member to consider before a decision would be made in his matter.  No response was received. 

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

7. 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

8. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations) which requires, relevantly in this case, that he be enrolled in a full time course while holding the Subclass 500 student visa. If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

9. The first issue is whether the Tribunal is satisfied that the ground for cancellation is made out and, if the Tribunal decides that it is, whether the decision to cancel the applicant’s visa should be affirmed.

   Did the applicant comply with Condition 8202?

10. 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)

    ·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).

11. The Subclass 500 student visa that is the subject of this review was granted on 12 April 2018.

12. There is a copy of an email on the Department file, sent by the applicant, attaching a Notification of Intention to Consider Cancellation (NOICC) of his student visa which was addressed to him.  By way of response to the NOICC, the email sent to the Department by the applicant on 4 June 2019 contained the following:

    ‘Hey there! I am Sukhjeet Singh. It looks like you are going to cancel my visa. Well I do want to study here and want to continue as a student again.  In which course i enroled myself its difficult to me so thats why i want to enroled again to continue my studies as a regular student its a humble request to give me one chance to continue my further studies

    Thanks’

13. The applicant did not provide a copy of the delegate’s decision.  He did not provide the Tribunal with any documents in support of his review application, either prior to or at the scheduled hearing.  Nor did he provide any additional information when invited to do so in December 2020.  The applicant confirmed these matters and stated at the hearing that he had no documents with him while giving his evidence.  The applicant was encouraged to try to remember details of his study and was told that the Tribunal would request documentary confirmation from him if necessary.  Ultimately, it was considered by the Tribunal not to be necessary.

14. Prior to taking oral evidence from the applicant, it was explained that, firstly, the Tribunal would consider and decide whether there was a ground for cancellation.  Second, the applicant was told that even if there was a ground for cancellation, the Tribunal is required to consider discretionary matters and that these would be discussed with him in due course as no decision had been made in his matter yet.

15. At the beginning of the hearing, the Tribunal asked the applicant to explain why he was seeking review of the decision to cancel his student visa.  He said, essentially, that he missed paying his fees and could not continue his studies because of some family problems in India.  He said he could not remember the year that happened. 

16. The applicant then said he did not have any specific information or documents with him to rely on, relating to the study he had undertaken in Australia.  He said, relying on his memory, that:

    a.He came to Australia on 10 September 2014 holding a student visa and to study a Certificate II, III and IV in Business

    b.After these certificate courses, he said he studied a Diploma of Management, Advanced Diploma of Leadership and Management and that he commenced this study on 18 January 2016 and finished on 24 January 2017 and studied ‘at the college’, the Academies of Australia

    c.He then says he went to university to study a Bachelor of Accounting at GCA Group of Colleges, commencing on 28 August 2017

17. The applicant was asked whether he finished the Bachelor of Accounting and he said, ‘No, that’s when the problems started’, which he later clarified to mean that his parents were unwell, in 2016, that ‘they are still sick’, and this affected his ability to pay the course fees.  He gave oral evidence that, in addition, he had a fractured hand and that he went to India once, in 2016 or 2017.

18. The applicant was asked how long he had studied the Bachelor of Accounting and what fees he had paid.  He said that he studied for ‘around six months’ and that he paid ‘around $7,000’, while at the same time working casually one or two days a week.  The applicant was asked when he stopped attending university and said it was when he could no longer pay the fees and failed some subjects and confirmed, in his oral evidence, that was in the first semester.  On his earlier oral evidence, the Tribunal took this to mean some time during or at the end of the semester that commenced in August 2017.

19. During the Tribunal hearing, the applicant was asked whether he had been sent a letter by the Department telling him they were considering cancelling his visa and he responded that he had received such a letter (NOICC).  The applicant’s response to the NOICC was received by the Department on 4 June 2019.

20. Having previously not been able to recall when he stopped studying the Bachelor of Accounting, the applicant did then recall and said that he thought it was in 2017 (during his first semester) because he ‘couldn’t continue’.  He was asked if he studied at all from the end of 2017 to May 2019 and responded, ‘No’.  The applicant was asked if he was aware of the conditions of his student visa relating to study and said, ‘Studying and attending class full time’.  He again confirmed in his oral evidence that he had not been studying at all from late 2017.

21. A series of questions and answers followed, relating to the applicant’s future plans.  The applicant gave oral evidence, in summary, that he had a plan to recommence study when he is ‘ready to study again’; he would ‘like to get another chance’; he ‘can study now’ but that he is ‘not studying at the moment’; and that if given a chance he wishes to finish the Bachelor of Accounting.

22. It is acknowledged by the Tribunal that there are records of the applicant’s study on the Department file.  The applicant chose to provide no documentary evidence in support of the review application.  He gave oral evidence at the scheduled hearing that was not favourable to him relating to his non-enrolment in a full time course, since 2017.  For example, he said he discontinued study and he had not studied from late 2017 to 2019.  For this reason, the applicant was considered to have been generally credible, relating to his enrolment status during the relevant period, from when the visa was granted in April 2018 to when the visa was cancelled in mid-2019. 

23. The Tribunal has relied on and accepted his oral evidence material to the issue on the review, that is the status of his full time enrolment while he held the Subclass 500 visa, and for that reason it was not necessary to put any of the information contained in his PRISMS records to him.   The applicant did not seek to deny he has not been enrolled in a full time course since June 2018, and has given sufficiently detailed information in his oral evidence for the Tribunal to be satisfied that he has breached condition 8202(2)(a).

24. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

25. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the decision to cancel the applicant’s visa should be set aside. 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 Procedural Instruction ‘General visa cancellation powers’.

    Purpose of the applicant travel and stay in Australia and whether he has a compelling need to remain in Australia

26. The applicant was granted the Subclass 500 student visa that is the subject of this review on 12 April 2018. 

27. Departmental policy (PAM3) includes, among other things, that applicants for a student visa must be seeking to come to Australia for the purpose of study.  When a student visa is granted, certain conditions attach to it, possibly most importantly that the visa holder must be enrolled in a full time course.

28. The applicant gave oral evidence at the scheduled hearing that when he applied for the Subclass 500 visa that is the subject of this review, in February 2018, he attached a Confirmation of Enrolment (COE) for a Bachelor of Accounting.  The applicant had, earlier in his oral evidence, said that he stopped studying the Bachelor of Accounting in 2017 and was asked how he managed to be granted a student visa when he was not studying.  He confirmed that when he applied for the visa and provided the COE to the Department in support of his February 2018 application that he thought it ‘would be okay’ and that he would be able to study further. 

29. The purpose of the applicant’s stay, while he held the student visa granted in April 2018, was to study while enrolled in a full time course.  On his own oral evidence, he did not comply with the condition that required he be enrolled in a course, nor did he study after being granted the visa.  On the evidence, the applicant has been very significantly non-compliant with what the Tribunal considers to be an essential condition of the visa.  The applicant has made no claim, other than he wishes to be given another chance, and there is no information before the Tribunal, that there is any compelling need for him to remain in Australia.

    Extent of the applicant’s compliance with his visa conditions

30. When the applicant gave oral evidence at the scheduled hearing he not deny, and clearly stated, that he has not been enrolled in a full time course since 2018.  And even though the applicant was enrolled until June 2018, he gave evidence that he stopped studying before the visa was even granted, in late 2017.

31. While there is no information before the Tribunal that the applicant has been non-compliant with any other of his visa conditions, such is the significance of his non-compliance with the condition that required him, while holding a student visa, to be enrolled in a full time course, the Tribunal can little positive weight to any compliance with his visa conditions in balancing this consideration. 

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

32. The applicant does not include any accompanying family unit members or dependants.  While acknowledging, and indicating he understands, that he has not complied with his student visa condition 8202 that requires his being enrolled in a course, he has asked the Tribunal to give him another chance to study in Australia.  The applicant also spoke of having experienced periods of stress over the last few years owing to his circumstances, relating to his parents’ ill health and the resulting effect on his finances.

33. At the scheduled hearing the applicant was asked what his plans are and gave oral evidence that he intends to resume study when he is ready.  He was asked why, if he had needed time to prepare himself to resume study in Australia, because he felt he was not ready, he had not returned to India.  He responded that it was because he has no money.  At the Tribunal hearing the applicant said he has no assets or liabilities in Australia.  It is acknowledged by the Tribunal that it appears the applicant may suffer some financial hardship if required to depart Australia if he needs to find funds to pay for his return travel and that this may also cause other hardships to him that could be stressful or upsetting. 

34. It is accepted by the Tribunal that some level of hardship may be caused if the applicant must depart Australia.  However, the student visa is a temporary visa and the applicant would, or at least should, be well aware that he may be required to depart Australia if or when the visa ceased. 

    Circumstances in which the ground for cancellation arose

35. After the visa was granted in April 2018, the applicant at no time informed the Department of his changed circumstances, namely, that he was no longer enrolled in a full time or any course and that he was no longer a student.

36. From June 2018 to mid-2019 the applicant resided in Australia holding a student visa, wilfully and knowingly non-compliant with the condition relating to enrolment.  The Tribunal is satisfied that the applicant understood he needed to be enrolled in a course, because he said so in his oral evidence at the scheduled hearing and also confirmed that he was not enrolled during the relevant period.

37. The Tribunal considers it more likely than not that, unless the Department had discovered the applicant’s non-compliance with condition 8202(2)(a), the applicant would have continued to reside in Australia non-compliant with the visa he had been granted.  The applicant was aware of the 8202 condition and being non-compliant with it was not beyond his control. 

    Past and present behaviour of the applicant towards the Department

38. Other than not informing the Department that he was no longer enrolled in a course in mid-June 2018, there is no evidence or information before the Tribunal that suggests the applicant has not engaged with them when required to.

    Consequential cancellations under s.140 of the Act

39. The applicant has included no accompanying family unit members or dependants in the student visa application.  There has been no claim made, nor is there any evidence before the Tribunal, that there would be any consequential cancellations under s.140 of the Act.

    Mandatory legal consequences that may affect the applicant

40. The Tribunal has considered whether the cancellation will result in the applicant being unlawful and liable to detention and removal, and whether detention is a possible consequence of cancellation and, if so, for how long.  Whether there are provisions in the Act which prevent him from making a valid visa application without the Minister’s intervention have also been considered.

41. The applicant currently holds a bridging visa relating to the review of the cancellation of his student visa. If the decision to cancel the student visa is affirmed, the applicant will be required to depart Australia within a timeframe as specified by the Department, being the date when his bridging visa ceases. If he does not depart voluntarily when that bridging visa ceases, he will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act. Alternatively, subject to s.48 of the Act, the applicant could apply for another visa. However, his options to apply for a visa onshore would be extremely limited. He would also be subject to Public Interest Criterion 4013, which would further limit him being able to be granted another visa within three years after the cancellation.

    International obligations, including non-refoulement

42. There has been no claim made, nor is there any evidence before the Tribunal, that if the applicant is required to depart Australia he cannot return, or fears harm if he returns, to India, the country of his citizenship.  The applicant has not declared that he has any dependent children in Australia.

    Other relevant matters

43. The Tribunal is satisfied that all matters relevant to the question of whether the Tribunal should exercise its discretion to set aside the cancellation, of the applicant’s Subclass 500 student visa that is the subject of this review, have been considered and are included above in this decision.

44. Considering the circumstances as a whole, the Tribunal concludes that the decision to cancel the applicant’s visa should be affirmed.

    DECISION

45. 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.