SINGH (Migration)

[2020] AATA 4498

SINGH (Migration) [2020] AATA 4498 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamaldeep Singh

CASE NUMBER:  1716371

HOME AFFAIRS REFERENCE(S):          BCC2017/1601928

MEMBER:David McCulloch

DATE:26 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 August 2020 at 11:14am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – academic progress and attendance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 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 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of India born on 5 January 1997. The visa subject to cancellation was granted on 18 November 2015 for a stay period of 31 March 2019 and subject to condition 8516.

3. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of the visa on 19 June 2017, and the applicant provided a response on 4 July 2017.

4. On 24 July 2017, the delegate cancelled the visa under s.116(b) on the basis that the applicant had not complied with a condition of the visa, namely condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. This matter was constituted to a Tribunal Member who held a hearing with the applicant on 21 August 2019 to give evidence and present arguments. That Member ceased to be a Member of the Tribunal before making a decision in this matter. The matter was therefore constituted to another Tribunal Member who conducted a further hearing on 13 August 2020 at 9.30 am.

6. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The Tribunal exercised its discretion to hold the second hearing by telephone. 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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. 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

9. 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. Relevantly, to this case, these include the ground set out in s.116(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 relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the visa. Condition 8516 states that: ‘The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.’

11. The criteria for the grant of the Student visa required to meet, among other criteria, cls. 573.231 and 573.223(1A), which provide as follows:

    573.231

    If subclause 573.223(1A) does not apply:

    (a)   the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

    (b)   the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i)made under regulation 1.40A; and

    (ii)   in force at the time the application was made.

    573.223(1A)

    If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)     the applicant gives the Minister evidence that the applicant has:

    (i)       a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)      educational qualifications required by the eligible education provider; and

    (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)       the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)      any other relevant matter; and

    (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)       the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

    eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

    (a) the applicant is enrolled in a principal course of study for the award of:

    (ia)     an advanced diploma in the higher education sector; or

    (i)       a bachelor’s degree; or

    (ii)      a masters degree by coursework;

    (b) the principal course of study is provided by an eligible education provider;

    (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)       the applicant is also enrolled in that course; and

    (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider

12. The decision of the delegate, a copy of which was provided by the applicant to the Tribunal, indicates that, according to the Provider Registration and International Management System (PRISMS), the applicant was no longer enrolled in a Bachelor degree or Master degree course and the applicant was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A.

13. Specifically, the delegate indicated that PRISMS indicated that the applicant’s enrolment in a Bachelor of Nursing was cancelled on 13 October 2016 by Western Sydney University citing non-payment of fees and since then the applicant has not held enrolment in a course of study that is a principal course of the type specified for subclass 573 visas. (In terms of other higher education courses, the PRISMS record to which the Tribunal has access indicates that, after the visa was cancelled, the applicant on 5 August 2017 enrolled in a Bachelor of Accounting which was cancelled on 26 September 2017 for non-commencement of studies. The applicant then re-enrolled in the Bachelor of Accounting on 23 October 2017 which the PRISMS record indicates that he is still studying.)

14. Based on the PRISMS information before the delegate that the applicant had not continued to be a person who would satisfy either cls.573.231 or 573.223(1A). Accordingly, it appeared that the applicant has not continued to be a person who would satisfy the primary criteria of the grant for the visa and has not complied with condition 8516.

15. In the first hearing the applicant agreed that he ceased to be enrolled in a course as required by his visa from 13 October 2016. The applicant confirmed this in the second hearing.

16. The Tribunal is satisfied on the evidence that the applicant has not continued to be a person who would satisfy either clss.573.231 or 573.223(1A). Thus, the applicant has not met condition 8516 as he has failed to continue to satisfy the criteria for the grant of the visa.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

19. The applicant provided a submission to the Department in response to the NOICC as well as submissions and supporting documents to the Tribunal. The submissions indicate that the applicant was studying the Bachelor of Nursing for six months but he found it difficult to adjust and to understand this study. The applicant decided to pursue business studies instead. The applicant completed units in a Diploma of Business and then switched to a Bachelor of Accounting obtaining credits for the units passed in the Diploma of Business.

20. The PRISMS record indicates that the applicant enrolled in a Diploma of Business commencing on 26 September 2016. Documents provided by the applicant indicate that he passed eight units in the Diploma of Business. In the first hearing, the applicant indicated that he did not complete this course.

21. Evidence provided by the applicant and confirmed in PRISMS indicates the applicant enrolled in a Bachelor of Accounting on 23 October 2017 which commenced on 15 January 2018. PRISMS indicates that the applicant is still enrolled this course due to end on 11 December 2020. 

22. The applicant had previously on 5 August 2017 enrolled in the Bachelor of Accounting due to commence on 28 August 2017 but this course was cancelled on 26 September 2017 for non-commencement of studies, according to PRISMS.

23. Documents provided to the Tribunal on 16 August 2019 from the education provider in relation to the Bachelor of Accounting indicate that as of 5 August 2019 the applicant had successfully completed five subjects and had completed 21% of the course. A transcript of the course for the same date indicated that the applicant had passed five units, failed five units, and been graded as an ‘absent fail’ for one unit. In the second hearing the applicant agreed that he had made this progress in the course at this point.

24. When the matter was reconstituted to a new Tribunal Member in June 2020, the Tribunal contacted the education provider to seek an updated transcript of the applicant’s progress in the Bachelor of Accounting and information as to his record. In response, the education provider provided an Academic Progress Statement current as at 3 July 2020 indicating that the applicant had successfully completed five of 24 subjects and had completed 21% of the course. In other words, the applicant had made no progress in the course from 16 April 2019. A transcript provided by the education provider dated 3 July 2020 confirmed that the applicant had passed five units. The transcript indicated that the applicant had failed five units and been given a grade of ‘absent fail’ in seven units. An Interim Certificate provided by the education provider dated 3 July 2020 indicates an average attendance of the applicant over various semesters of­ 20%. In the last four trimesters, the first commencing 13 May 2019 and the last ending 21 August 2020, the applicant has had attendance rates of respectively 14%, 14%, 11% and 0%.

25. The Tribunal put to the applicant the information in the last paragraph above to him in the second hearing pursuant to the procedural requirements of s.359AA.  In the hearing the Tribunal indicated that the applicant’s lack of recent commitment and progress in his Bachelor of Accounting could be an adverse discretionary factor towards the applicant in terms of the Tribunal exercising this discretion as to whether the visa should be cancelled.

26. In response in the applicant indicated that the information as to course progress and attendance from the education provider was correct. The applicant indicated that he cannot say much but that he struggled after his visa was cancelled. The Tribunal asked the applicant if he would like to expand on this. The applicant indicated that he had nothing further to say.

27. In the first Tribunal hearing that took place on 28 August 2019, the applicant reiterated that he struggled in the first semester of his Bachelor of Nursing, failing three units. The applicant indicated that he then decided to switch studies to business, starting firstly with a Diploma course but with a view to progressing to a Bachelor degree. The applicant indicated that the reason that he was not enrolled in the Bachelor degree earlier was because of the applicant’s migration agent not acting properly to facilitate enrolment. The applicant indicated that he paid the agent but the agent did not attach the receipt.

28. Adverse to the applicant is that from 13 October 2016 until the cancellation of the visa on 24 July 2017 the applicant was in breach of condition 8516 in terms of not being enrolled in a higher education sector course. However, the Tribunal accepts that the applicant had a genuine intention from the time of ending his nursing studies to switch to business studies with an ultimate goal to progress to a Bachelor of Accounting. The applicant has demonstrated this intention by successfully completing a not insignificant number of units in a Diploma of Business and then enrolling and progressing initially, at least to some degree, in a Bachelor of Accounting.

29. Had the applicant been making adequate progress in the Bachelor of Accounting the Tribunal would have considered this a very significant discretionary factor in favour of the Tribunal not exercising its discretion to cancel the visa. However, as it is from the recent evidence provided by the education provider the applicant has continuously had extremely poor attendance, an average of 20%, and more recently a lesser percentage rate of attendance. Five units attempted have resulted in a fail.  Seven units attended have been failed based on being absent. The applicant has made no progress in terms of passing units since April 2019.

30. As indicated, these deficiencies with progressing in the Bachelor of Accounting were discussed with him in the second Tribunal hearing. The applicant did not provide a detailed or meaningfully response. The applicant has been enrolled and has had the opportunity to progress with his Bachelor of Accounting. The applicant has made no progress in terms of passing units in the course in the past year and has had extremely poor attendance, well below the 80% attendance requirement. This indicates very limited motivation and effort by the applicant towards the Bachelor of Accounting. This is a significant adverse discretionary factor towards the applicant in the exercise of the Tribunal’s discretion.

31. As the substantive visa is now at an end, the applicant will need to make an application for a student visa to continue his studies in Australia which will be considered on its merits.

32. In terms of hardship if the visa remains cancelled, in the second Tribunal hearing the applicant indicated that if he returned to India he would have to start his studies all over again and that there would be limits on his employment opportunities if he does not finish his course here.

33. The Tribunal put to the applicant that it had concerns as to the applicant’s willingness to complete the Bachelor of Accounting given his poor recent progress and attendance. In response, the applicant indicated that the Tribunal will just need to be reassured that the applicant has a commitment to completing the course. The Tribunal is not satisfied of this based on the evidence, including the applicant’s minimal explanations for lack of progress and attendance.

34. The Tribunal is not satisfied there is significant hardship to the applicant in not being able to continue with the Bachelor of Accounting given the lack of recent progress and attendance.

35. The Tribunal is willing to accept some hardship to the applicant if the visa remains cancelled in light of the fact that the applicant may wish to remain living in Australia for reasons other than wishing to progress with study.

36. The Tribunal accepts there would be hardship to the applicant if the visa remains cancelled in terms of an exclusion period from returning to Australia and his inability to apply for many other visas onshore.

37. If the visa remains cancelled the applicant could be an unlawful non-citizen and subject to immigration detention. However, the Tribunal considers the applicant would retain ability for eligibility to apply for a bridging visa to make his status lawful while he makes arrangements to leave the country.

38. The applicant indicated in the second hearing that there are no children in Australia whose interests are affected by the cancellation. The applicant indicated that he does not fear persecution or significant harm on return to India.

39. These are the key discretionary factors, in the Tribunal’s view.

40. The Tribunal only draws limited adverse inference from the applicant’s breach of condition 8516 because he quickly re-enrolled in a diploma course, albeit a lesser course than required for his visa, as a pathway to progressing towards a Bachelor of Accounting (which would otherwise have met the criteria for a subclass 573 visa) which he enrolled in and made some degree of progress in terms of units passed in the early part of this course. As indicated, the Tribunal would have considered it a significant discretionary factor in favour of not cancelling the visa if the applicant had been making good progress in this course. As it is, the applicant has made no progress in this course in terms of units passed in the last year and has had an extremely poor attendance rate in the course overall, particularly in the most recent trimester. The applicant has not provided any well explained reason for this lack of progress and commitment. This lack of recent progress and effort in the course is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

41. The Tribunal accepts a degree of hardship if the visa remains cancelled.

1. Balancing factors favourable and adverse to the applicant, the Tribunal readily determines that it should exercise its discretion to cancel the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

2. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   David McCulloch
   Member