SINGH (Migration)

[2020] AATA 5599

SINGH (Migration) [2020] AATA 5599 (11 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagandeep Singh

CASE NUMBER:  1714997

HOME AFFAIRS REFERENCE(S):          BCC2017/1406709

MEMBER:Penelope Hunter

DATE:11 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 November 2020 at 1:04pm

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 – significant period of non-enrolment – purpose of visa not fulfilled – 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 7 July 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 under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 13 August 2019, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother-in-law Jaspal Singh Bambra. The hearing was adjourned in order for the applicant to submit further medical evidence and the applicant again appeared before the Tribunal at a hearing on 31 January 2020.

5. The initial member allocated the application for review was unable to finalise the matter and the application for review was reconstituted on 31 July 2020 to a different member. The applicant was advised that all documents and material that were submitted to the Tribunal would be considered in relation to the review, including any recording of hearing and submissions to the Tribunal or the Department.

6. The applicant was again invited to appear before the Tribunal on 23 September 2020 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this application, these include the ground set out in s.116(2)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(2)(b) if the Minister or the Tribunal is satisfied that the visa holder did not comply with a condition of their visa. In this instance condition 8202 was attached to the applicant’s visa subclass TU573 visa.

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 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).

11. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course, condition 8202(2).

12. In applying for review of the decision, the applicant provided to the Tribunal a copy of the delegate’s decision. This outlined that the applicant’s Provider Registration and International Student Management System (PRISMS) records documented that the applicant’s enrolment in a Diploma of Leadership and Management, at Apex Institute of Education, was cancelled on 7 September 2016 for non-commencement of studies.

13. The delegate wrote to the applicant on 13 June 2017 providing a Notice of Intention to Consider Cancellation (NOICC) of the visa and requesting a response from the applicant. The applicant provided responses on 15, 27, 29 and 30 June 2017 and again on 3 and 5 July 2017. The delegate considered the responses and further noted in their decision that the PRISMS records for the applicant recorded that he had not been enrolled in a registered course of study between the dates of 7 September 2016 and 18 June 2017, a period of 9 months.

14. At the hearing on 31 January 2020, the applicant agreed that he ceased to be enrolled as required by his visa condition from 7 September 2016. The applicant again agreed that he was not enrolled in a registered course during the relevant period at the hearing on 23 September 2020. The applicant also acknowledged that the visa he was granted came with conditions and he did not dispute that condition 8202 was a condition of his visa.

15. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in, did not have a Confirmation of Enrolment (CoE) or did not have an offer of enrolment in a registered course or a full-time course of study or training from 7 September 2016 to 18 June 2017. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

16. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

18. 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. The applicant is aged 24 and is a citizen of India. He arrived in Australia in 2015 on a Subclass 573 visa, with the intention, he told the Tribunal, of completing a certificate course, a diploma and then a degree in Information Technology. He finished a Certificate IV in Information Technology Networking, and then he determined to enrol in some business-related courses, and undertook a Certificate IV in Business. After completing some study in the Diploma of Information Technology, the applicant determined to change to business and enrolled in further courses including a Diploma of Leadership and Management at Apex Institute of Education with course dates from 16 May 2016 to 17 May 2017.

20. The applicant’s evidence has evolved over the course of the review. In response to the request for information from the Department, he maintained that he was enrolled in the Diploma of Leadership and Management, sent a copy of his CoE in this course and claimed to be attending regularly, although he acknowledged he was not enrolled in a degree level course. When he appeared before the Tribunal on 31 January 2020, the applicant claimed to have undertaken some study in the course before his enrolment was cancelled and when the hearing was adjourned he was requested to provide evidence of coursework. At the hearing on 23 September 2020, the Tribunal put to the applicant information recorded by his course provider on his PRISMS records that “the student has not attended any classes and only came for the orientation, never attempted any exams or forms of assessment”. The applicant was informed that the reason the information was important is that it was inconsistent with his previous evidence to the Department and the Tribunal, and if relied upon it may raise concerns about his credibility and commitment to studying in Australia. The applicant elected to respond immediately, he did not dispute the PRISMS records but claimed he was unwell at the time and now what he was saying to the Tribunal about intending to study was true.

21. In support of the application for review the applicant has submitted to the Tribunal the following additional documents:

    i.Gam X-Ray limited report, for patient Jaswant Singh dated 15 February 2017, bilateral shoulder ultrasound, and accompanying report.

    ii.High Street Medical Imaging report for applicant dated 10 September 2018, left ankle ultrasound.

    iii.Quantum Radiology report for applicant dated 15 February 2018, ultrasound left groin (3mm cyst on right epididymis).

22. In various submissions to the Department in response to the NOICC, the applicant had claimed that he had been misled by his agent about enrolment in a degree course, and that he had been suffering from mental stress because his parents were not well and associated with his study.

23. To the Tribunal the applicant claimed that he had ceased studying because of misleading information provided by his education agent that there would not be a problem for him to enrol in lower level VET study, his parents being sick, and although he was not diagnosed at the time he was also sick. The Tribunal acknowledges that the applicant has filed documents relating to medical investigations, however it was noted that none of the information relating to the applicant was proximate to the time of the alleged breach. The applicant had been given the opportunity following his hearings in August 2019, and January 2020 to produce medical evidence to support his claims that he was unwell at the time of the breach. He has reported to the Tribunal that he was unable to locate the doctor in High Street Penrith that he attended to request this material.

24. In response to questions from the Tribunal the applicant acknowledged that his student visa was issued with conditions. The Tribunal then asked the applicant about those conditions and he referred to limitations on work for 20 hours per week, and he had to enrol at the bachelor level. The applicant also confirmed that he recalled receiving a letter from the Department when his visa was granted and that this set out conditions attached to his visa. Even though he was aware of this the applicant claimed that there were some agents that do the wrong thing and they give the wrong advice.

25. The applicant confirmed that his original visa grant was until August 2018, he acknowledged that the purpose was for him to undertake tertiary study. He told the Tribunal that he had not yet completed such study but if he got the visa back he planned to do so. The applicant also acknowledged that there was no impediment to his undertaking studies while awaiting review by the Tribunal. Again, pursuant to the provisions of s.359AA of the Act the Tribunal discussed with the applicant information contained in his PRISMS records. The applicant was advised that the relevant information was that since July 2017 he had enrolled in a further four courses and all of those courses had been cancelled. The applicant was advised that the information was relevant because it appeared he had not completed any further courses of study in Australia since July 2017, and that if the Tribunal relied on the information it may find that he did not intend to study in Australia and satisfy the purpose of a student visa. The applicant elected to respond immediately and said he could not study because he was sick but if given one more chance he could enrol and finish what he started. The applicant also claimed that financial difficulty had caused problems with past enrolment; although his sister and brother-in-law had previously undertaken to support him they were also now experiencing business problems. But if given the visa he would borrow money from somewhere or obtain a credit card and finish his course.

26. At the hearing on 23 September 2020, the Tribunal asked the applicant what he had been doing in Australia while awaiting review, and he replied that he had been doing nothing and was experiencing financial hardship.

27. At the hearing on 31 January 2020, the applicant claimed to have no family left in India, as his parents had travelled to Canada to be with his sister, and he had another sister in Australia with whom he was living. At the hearing on 23 September 2020, the applicant confirmed that his parents had returned to India to live in the family home. But he claimed that they could not support him because his father was sick, with a heart condition. The Tribunal acknowledged that the applicant had provided evidence that his father had investigations on his shoulders in 2017, but there was no evidence of a heart condition. The applicant claimed that his father had experienced heart problems for about 3 years. He wished to stay in Australia to work to get the money to pay for his college. He claimed that he could not earn much money in India.

28. Although he had previously been partnered and had a girlfriend onshore, the applicant told the Tribunal at the hearing on 23 September 2020, that he was single and he had no dependents.

29. His concern about returning to India was that he would not be able to earn much money. This was his only concern about returning to India, there was no one to financially support him. Although he agreed that it was cheaper to live in India, than in Australia, he said that it was not that cheap because it was hard to get a job.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

30. The applicant came to Australia as the holder of a student visa to undertake study in Australia as an international student. The student visa has one central objective which is to enable the applicant to undertake studies in Australia. The applicant came to Australia with the intention of completing a vocational course and then a degree in Information Technology. The applicant completed a Certificate IV in Information Technology and then determined to change to business courses. He did not complete the subsequent courses in which he enrolled and was not enrolled between the period of 7 September 2016 and 18 June 2017, a period of 9 months which the Tribunal considers to be significant. The Tribunal also notes the information disclosed in the applicant’s PRISMS records that the applicant did not attend one class of the relevant Diploma of Leadership and Management course, which commenced on 16 May 2016 and was ultimately cancelled on 7 September 2016 and he has not completed any further courses while in Australia awaiting review. The applicant told the Tribunal he had been doing nothing but feeling unwell and experiencing financial hardship while remaining in Australia and awaiting review.

31. The relevant visa was granted to the applicant from March 2015 to August 2018, he was permitted to be in Australia temporarily for study during this period. The period for which the visa was granted has passed, it is considered that the applicant did not fulfil the purpose of his travel and stay in Australia. Additionally, the applicant is not currently enrolled in a registered course of study, nor do circumstances arise where he has a compelling need to travel or remain in Australia, such as being currently enrolled in a registered course of study and only having a short period left to complete such a course.

32. The Tribunal gives this discretionary factor little weight in favour of exercising the discretion not to cancel the visa.

    The extent of compliance with visa conditions

33. The applicant was not enrolled in a registered course of study from 7 September 2016 to 18 June 2017, a period of 9 months, he did not comply with condition 8202 of his visa. The Tribunal has considered the applicant’s claims that he was unwell at the relevant time. It is accepted that the applicant has produced medical records of investigations undertaken in 2018, however these are not considered proximate to the time of the applicant’s breach. The applicant has been provided with considerable time to demonstrate medical conditions that were affecting him at the time. It is not accepted that this can solely be explained by his inability to locate his former treating doctor.

34. In addition the applicant acknowledged that he was aware that a further condition of his visa, condition 8516, to continue to satisfy the primary criteria for the grant of his visa, was enrolment in study at the tertiary education level. The applicant conceded that he did not do this when he withdrew from his program of study in Information Technology. The Tribunal has considered the applicant’s claims that he was misguided by his education agent, although the applicant clearly acknowledged that he was aware of the condition when the visa was granted. The Tribunal also finds that it is the responsibility of the applicant to ensure that he complies with the conditions of his visa.

35. Considering the lengthy period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, and the subsequent breach of condition 8516, the Tribunal gives this discretionary factor little weight in favour of exercising the discretion not to cancel the visa.

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

36. The applicant provided evidence at his earlier Tribunal hearings that he wanted a bachelor degree to get a good job in India, also that he had spent money on his studies in Australia. He spoke of his disappointment with cancellation and hardship finding employment in India without higher level qualifications, and the lack of employment opportunities. The applicant also spoke of financial issues that both he and his family were experiencing that were precluding him from undertaking further study while awaiting review.

37. The Tribunal accepts that if the visa is cancelled that the applicant will be disappointed and upset. However, there was no evidence to establish that the applicant is currently suffering from any mental illness or psychological condition, and that the effect of cancellation upon the applicant’s psychological condition will extend beyond causing disappointment and upset.

38. It is also accepted that the applicant has already made an investment in some courses of study in Australia and that he has subsequently experienced financial difficulties. The Tribunal accepts that higher level qualifications would provide a benefit to the applicant when seeking future employment in India, however evidence provided is that the applicant and his family have experienced financial hardship which has curtailed the ability for economic support to be provided to the applicant to study in Australia. If this economic support is not available it is questionable whether ongoing study that the applicant desires would be achievable or sustainable, noting that he has not completed any further courses while awaiting review of the cancellation decision. As to the economic disadvantages for the applicant, he claims to be experiencing financial hardship in Australia. In India he has his family home where he can reside free of charge. Additionally, study options will still be available in the future for the applicant in India, and the Tribunal does not accept the applicants claims that all options will be at a greater cost to equivalent Australian courses.

1. While the Tribunal accepts that a degree of hardship will be caused it does not outweigh the seriousness of the breach in all the circumstances of the matter, and the Tribunal gives this factor little weight in its considerations.

   Circumstances in which the ground for cancellation arose

2. The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as he was not enrolled in a course of study between 7 September 2016 and 18 June 2017. Although the applicant claimed that this was due to illness, he has not provided evidence to support his claims that he was so unwell that he was unable to attend his courses or engage in study. The Tribunal is not satisfied that the applicant has demonstrated that the circumstances in which the ground for cancellation arose were beyond his control.

3. The Tribunal gives this consideration limited weight in the applicant’s favour.

   Past and present behaviour of the visa holder toward the Department

4. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past, and he responded to the NOICC. The Tribunal gives this consideration some weight in the applicant’s favour.

   Whether there would be any consequential cancellations under s.140

5. The applicant claimed to be single with no dependents. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

   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

6. There are mandatory consequences in case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

7. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and deportation.

8. If the visa is cancelled the applicant may be subject to a restriction under s.48 of the Act that he may not be granted a further visa for 3 years from the date of cancellation. It is noted that this date runs from the date of the delegate’s original decision and the applicant has already served the 3-year period. However it is accepted that cancellation may also restrict the applicant’s future ability to make a successful visa application. The cancellation of the visa has the consequence that the applicant would have difficulties in obtaining any further visas in Australia however those are also intended and legitimate consequences of cancellation.

9. The Tribunal gives this consideration neutral weight.

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

10. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled.

11. Other than not having anyone to support him because his parents were ill, and concerns about finding employment in India the applicant did not make any claims of problems if he returned to India.

12. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

13. The applicant’s visa was a temporary visa. There are no other relevant matters raised by the applicant.

14. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. The Tribunal is satisfied that those limited aspects do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

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

    DECISION

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

    Penelope Hunter
    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.