Singh (Migration)

Singh (Migration) [2020] AATA 4382 (16 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Satinder Pal Singh
CASE NUMBER:  1923163
HOME AFFAIRS REFERENCE(S):          BCC2019/2544699
MEMBER:Stephen Conwell
DATE:16 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 October 2020 at 3:49pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – parents unable to financially support studies – work, stress, anxiety and drug use – marriage, separation and birth of child – unconvincing plains to change study area – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 August 2019 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 (the Act).
The delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the coronavirus (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 has regard to its objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant raised no concerns as to conducting the review hearing by phone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant participated in the telephone hearing on 15 October 2020 to give evidence and present arguments.
The applicant was represented in the review by his registered migration agent (agent) who did not attend the telephone hearing.
The applicant provided a copy of the decision record to the Tribunal.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
According to the decision record, the applicant was initially granted a Student Higher Education (subclass 573) visa, arriving in Australia on 22 June 2014. He subsequently applied for and was granted a Student (subclass 500) visa on 10 October 2017 to pursue further study.
By Notice of Intention to Consider Cancellation (NOICC) dated 16 July 2019, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study since 28 June 2018 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.
The applicant provided emailed responses to the NOICC on 19 and 21 July 2019. In his responses the applicant explained:
·     his family in India were experiencing “family problems” in 2017 which led to his parents being unable to financially support his studies. He began smoking “synthetic” to cope with the ensuing stress and anxiety;
·     he met his partner sometime in 2018 and soon moved in with her. He worked to support the couple. They married a few months later in November 2018. His wife is an Australian citizen;
·     when his wife became pregnant he focussed on his responsibilities as a new father. He attempted to continue his studies but this proved difficult as he wasn’t supported by his wife’s family;
·     he acknowledged that he breached his visa condition but his responsibilities as a new father took precedence over his “own things”.
Based on information contained in PRISMS and reported in the decision record the delegate made a finding the applicant had not been enrolled in a registered course of study since 28 June 2018. Therefore, the delegate made a finding the applicant did not meet the requirements of condition 8202(2)(a) and proceeded to cancel his visa.
At hearing the applicant acknowledged his not being enrolled since 28 June 2018 as outlined above. The Tribunal finds that the applicant was not enrolled in a registered course from 28 June 2018 up to his visa being cancelled on 15 August 2019 - a period exceeding 13 months.
Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers’.
The applicant’s oral evidence at hearing is summarised below:
·      he confirmed his arrival date in Australia and that the purpose of his doing so was to study;
·      he claims that his family’s domestic problems led to his parents being unable to continue to finance his studies in Australia. He became stressed and anxious and he took up smoking an illicit substance called “synthetic;
·      he confirmed that he met and married an Australian citizen in 2018 however the relationship had soured within a few months and his wife returned to live with her family in July 2019. The relationship has effectively broken down
·      the couple’s daughter was born on 14 November 2019, however the applicant’s in-laws have not allowed him to see the child. The applicant has engaged a mediator to broker an access arrangement so that he may spend time with his daughter;
·      he completed a Diploma of Hospitality in 2017, however he has failed to complete any course of study since being granted his latest Student (subclass 500) in October 2017;
·      when asked by the Tribunal if they were any compelling reasons for him to remain in Australia, the applicant replied that he would like to return to study, but he now wishes to pursue an automotive study pathway. He also wishes to remain in Australia in order to be close to his daughter. He is hopeful that upon being granted a further Student visa he may then seek to apply for permanent residency.
Consideration of the discretion to cancel the visa
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’
the 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
The applicant agreed that he arrived in Australia for the purpose of studying a higher education sector level course. He was subsequently granted a Student (subclass 500) visa on 10 October 2017 upon expiry of his original visa. According to the decision record the applicant’s PRISMS records indicate that he has not held enrolment in a registered course since 28 June 2018. From that date he fell in breach of his visa condition 8202(2)(b).
The Tribunal is satisfied that his original intention to travel to and stay in Australia was to study. At hearing the applicant expressed no interest in pursuing further study in hospitality – in which he already holds a diploma; instead he spoke of wishing to enrol in automotive studies – an entirely new study pathway. While the applicant has expressed a desire to continue his studies in Australia, his claims about his study plans to embark upon a new pathway of automotive courses were unconvincing. As such, he has not demonstrated a powerful or convincing reason to remain in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia and gives this factor some weight towards the visa being cancelled.
the extent of compliance with visa conditions
21. The applicant has not held enrolment in a course for more than 13 months, in breach of condition 8202(2)(b). There is no evidence before the Tribunal that the applicant is in breach of any other visa conditions however the Tribunal considers this to be a serious breach given the nature and purpose of his Student visa. The Tribunal therefore gives this factor considerable weight towards the visa being cancelled.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the hearing the Tribunal discussed with the applicant any hardship that may arise as a result of his visa being cancelled. The applicant reiterated that he had been a good student in completing his diploma studies, however his family’s domestic troubles adversely impacted upon his studies and upon his parents ability to pay his study fees. Upon learning of his wife’s pregnancy, he felt obliged to direct his attention to his family responsibilities and consequently he remained non-enrolled in a registered course for more than 13 months.
The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to, and study in Australia, including fees lost as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa.
The Tribunal accepts there will be a degree of hardship caused by cancellation of the visa, nevertheless the applicant has not demonstrated a significant level of hardship that would result should his visa remain cancelled. The Tribunal is not satisfied, on the evidence before it, that he or members of his family, would suffer a degree of emotional, psychological or psychiatric hardship that would weigh in favour of not cancelling the visa.
circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances that led to the cancellation of the applicant’s enrolment have been described above. Whilst the applicant’s family troubles and their consequences for his study prospects are unfortunate, they do not account for the applicant’s non-enrolment for a lengthy period exceeding 13 months. It is accepted the applicant’s family troubles and later his responsibilities as a husband and expectant father would have been distracting and stressful for him, however they are not sufficient or satisfactory reasons for the applicant to remain in Australia whilst failing to comply with the conditions of his Student visa.
The Tribunal is not satisfied the circumstances in which the ground for cancellation arose were exceptional and beyond the applicant’s control. The Tribunal finds that the applicant’s circumstances considered as a whole, weigh in favour of cancellation of the visa.
past and present behaviour of the visa holder towards the Department
According to the decision record, there was no evidence that the applicant had been unco-operative towards the Department. The Tribunal give this some little weight against cancellation of the visa.
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
At the hearing, the applicant advised that he had not yet considered his possible eligibility for a Partner visa, however he would enquire as to the legal avenues which might be open to him should his Student visa remain cancelled.
The Tribunal is mindful that cancellation might lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to ss.189 and 198, respectively. The Tribunal acknowledges that cancellation of the applicant’s visa would result in his being prevented from being granted a range of temporary visas, including Student or Visitor visas, for a period of three years by operation of Public Interest Criterion 4013. It further notes that the applicant would be prevented from applying for many visas onshore apart from a limited range of visas, pursuant to s.48 of the Act. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds. Accordingly the Tribunal gives this some weight towards the visa being cancelled.
whether there would be consequential cancellations under s.140
Based on the evidence submitted, the Tribunal accepts that the applicant’s estranged wife is an Australian citizen, and based on the birth certificate tendered, that the applicant’s daughter is a child born in Australia. Accordingly the Tribunals is satisfied that neither the applicant’s wife nor his daughter will be affected by consequential cancellations under s.140. The Tribunal finds there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.
Whether any international obligations would be breached as a result of the cancellation
This consideration does not appear to be relevant and the applicant has not made any claims in relation to it.
Any other relevant matters
The Tribunal finds that there are no other relevant matters.
Conclusion
The Tribunal is not satisfied the personal challenges the applicant has encountered are sufficient reason for the visa not to be cancelled. The Tribunal recognises that the cancellation of the visa is a significant matter, but having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to not cancel the visa.
On balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Stephen Conwell
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.

[2020] AATA 4382

16 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice