SINGH (Migration)

[2020] AATA 2851

SINGH (Migration) [2020] AATA 2851 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VIKRAM SINGH

CASE NUMBER:  1817471

HOME AFFAIRS REFERENCE(S):          BCC2018/227490

MEMBER:Linda Symons

DATE:6 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 6 July 2020 at 3:48pm

CATCHWORDS

MIGRANT – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – visa, study and work history – change of education provider and non-commencement of studies – no enrolment or study at higher education sector level – no current enrolment or offer – credibility – inconsistent evidence – possible breach of other immigration laws – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 June 2018 made by a delegate of the Minister for Home Affairs 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 on the basis that the applicant was not enrolled in a registered course since 29 June 2017. He applied to the Tribunal for a review of that decision on 14 June 2018.

3. The applicant appeared before the Tribunal on 22 January 2020 to give evidence and present arguments.

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

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 AND FINDINGS

   Did the applicant breach Condition 8202?

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 Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

7. 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).

8. In the present case, the applicant was granted a Student visa on 9 September 2014. This visa was subject to a number of conditions including condition 8202. On 6 April 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he was not enrolled in a registered course since 29 June 2017. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. In his response dated 11 April 2018, he requested an extension of time to respond, which was refused. He did not provide a response to the NOITCC. His Student visa was cancelled on 8 June 2018.

9. The applicant provided the Tribunal a copy of the Decision Record dated 8 June 2018 from the Department of Home Affairs (the Department) and a copy of his Indian passport issued on 23 May 2014. At the end of the hearing, he requested and was granted further time to provide additional evidence. He subsequently provided the Tribunal with medical records for his father, a statement by his father, Raghbrir Singh, dated 27 January 2020 and an undated statement by himself.

10. During the hearing, the applicant gave evidence that he came to Australia on 13 September 2014 on a subclass 573 Student visa. He stated that he enrolled in a Diploma of Business, an Advanced Diploma of Business and a Bachelor of Business. He stated that he completed a Diploma of Business in 2015. He stated that he changed his education provider and enrolled in an Advanced Diploma of Business at AITE College. He stated that he was studying the Advanced Diploma of Business when his Confirmation of Enrolment (COE) was cancelled.

11. The applicant stated that he has not been enrolled in a registered course since 29 June 2017. He stated that he understood that if he was not enrolled in a registered course, he would breach condition 8202 of his Student visa. He agreed that he had breached condition 8202 of his Student visa.

12. The records of the Department of Education indicate that the applicant was enrolled in an Advanced Diploma of Business from 13 February 2017 to 11 February 2018. His enrolment was cancelled on 29 June 2017 for non-commencement of studies. He has not enrolled in any other course thereafter. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that, as he has not enrolled in a registered course since 29 June 2017, he had breached condition 8202(2) of his Student visa and his Student visa should be cancelled.

13. The applicant responded that his father was involved in an accident when he was enrolled in his last Diploma. He stated that he did not pay the last semester’s fees. He stated that he asked for more time. He stated that his education provider gave him 2 or 3 weeks and waited for him to enrol in another course. He stated that he did not do this, so they reported him to the Department.

14. The applicant’s response is not consistent with the above records of the Department of Education which indicate that his enrolment was cancelled for non-commencement of studies and not for non-payment of fees.  

15. On the evidence before it, the Tribunal finds that the applicant has not complied with condition 8202(2) of his Student visa.

    Consideration of the discretion to cancel the visa

16. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling      need to travel to or remain in Australia?

17. The applicant gave evidence that the purpose for which he travelled to Australia was to complete his studies. He stated that he wanted to be a Police Officer, but these things happened. It is not clear to the Tribunal why he enrolled in business courses if he wanted to be a Police Officer.

18. The Tribunal asked the applicant why he did not return to his family in India if he came to Australia to study and was not studying. He responded that Australia gave him so much. He stated that he wanted to be here for a brighter future so he could study. When the Tribunal pointed out that he was not studying, he responded that he was not. He stated that he wanted to speak to the Department but was concerned that if he spoke to the Department they would cancel his Student visa, so he did not.  

19. The Tribunal asked the applicant whether there was any need for him to remain in Australia. He responded that he would like to get a chance to resume his studies.

20. The applicant’s evidence is that he came to Australia in 2014 on a subclass 573 Student visa which is a visa to undertake higher education. Since then he has not undertaken any higher education courses such as a Bachelor degree or a Masters degree. He has, however, been working in Australia. This raises concerns for the Tribunal in relation to his motivation for being in Australia. The Tribunal raised this as an issue with him and noted that this may lead it to the conclusion that he was more interested in working in Australia than in studying in here and that his Student visa should be cancelled.

21. The applicant responded that after he arrived in Australia, he studied a Certificate IV for 6 months and then studied a Diploma for one year. He stated that the Advanced Diploma was for a duration of one year. He stated that that would have been two and a half years. He stated that when he was studying the Advanced Diploma, he did not pay his fees and in 2018 his Student visa was cancelled. 

22. The records of the Department indicate that the applicant was granted a subclass 573 Student visa on 9 September 2014 and came to Australia on 12 September 2014. The records of the Department of Education indicate that he was enrolled in a Certificate IV in Business from 27 October 2014 to 12 June 2015 which he completed. He then enrolled in a Diploma of Management from 6 July 2015 to 27 November 2015 and a Bachelor of Business from 15 February 2016 to 31 December 2018.

23. The records of the Department of Education indicate that the applicant’s enrolment in the Diploma of Management was cancelled on 5 August 2015 for non-commencement of studies. His enrolment in the Bachelor of Business degree was cancelled on 23 December 2015 because he transferred to another course (education provider). He enrolled in a Diploma of Business from 4 January 2016 to 1 January 2017. He completed that course. He then enrolled in an advanced Diploma of Business from 13 February 2017 to 11 February 2018. His enrolment in that course was cancelled on 29 June 2017 for non-commencement of studies.

24. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that although he has been in Australia since 2014, he has only completed a Certificate IV in Business and a Diploma of Business during that time. The Tribunal noted that he was given a subclass 573 Student visa to do a higher education course in Australia and he had not completed a Bachelor degree or a Master degree in Australia. The Tribunal noted that it may find that he has not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled.   

25. The applicant responded that his original education provider sent him an email informing him that they were closing. He stated that he then sought advice from an agent who suggested that he undertake an Advanced Diploma of Business and then study a Bachelor of Business. When asked why he did not enrol in a Bachelor of Business to follow after the Advanced Diploma of Business, he responded that his agent advised him to do the Advanced Diploma of Business first. He stated that he understood that was also a breach of his Student visa.

26. In an undated statement filed with the Tribunal following the hearing, the applicant reiterated some of his oral evidence. He also stated that, as his father had recovered from his accident and was able to lease their land, they were getting money and his father is able to pay his fees if he gets a chance to enrol in a College again. He stated that he was enclosing financial statements from 2013 to 2019. He did not provide any financial statements. He also stated that they had “land issues” and was attaching a “Court copy which we submitted”. No Court documents were provided. The Tribunal finds this evidence to be unconvincing and is not persuaded by it.  

27. The evidence before the Tribunal indicates that the applicant has a poor history as a student in Australia. Whilst he has completed a Certificate IV in Business and a Diploma of Business, these are not higher education courses. His evidence is that he has not studied since 2017. There is no evidence before the Tribunal to indicate that he is currently enrolled in a registered course of study or has obtained a Letter of Offer for a higher education course in Australia. He has not provided any independent evidence that he is able to pay for the tuition fees to undertake a Bachelor degree, as an international student, in Australia. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia.

28. The Tribunal gives this consideration no weight in the applicant’s favour.   

    The extent of compliance with visa conditions

29. The applicant was granted the subclass 573 Student visa on 9 September 2014 for the purpose of completing a Bachelor degree. He has not been enrolled in a registered course that, once completed, would lead to a Bachelor degree or provide him with a Bachelor degree since 29 June 2017. This was a substantial period of time during which he was in breach of condition 8202(2) of his Student visa.

30. The Tribunal noted that the applicant had not been enrolled in a registered course of study for a considerable period of time and asked him what his plan was if he had not received the NOITCC from the Department. He responded that his plan was to study. He stated that he met his girlfriend in 2016 and she has been supporting him for the last one and a half years. He stated that she is paying his rent.

31. The Tribunal asked the applicant whether he had breached any other condition of his Student visa. He responded that he had. He stated that his Student visa required him to progress from a Diploma to a Degree. He stated that when he enrolled in a Diploma he also had to enrol in a Degree. He stated that when he changed his education provider he needed to enrol in a degree. (He enrolled in an Advanced Diploma instead).  

32. At the commencement of the hearing, the applicant informed the Tribunal that he came to the hearing straight from work. He was wearing a work uniform for the transport company ‘Mainfreight’ and his name was on the uniform. He initially stated that he started working at Mainfreight as a transport offsider in late 2015 and left the job in June 2016. He subsequently stated that he started working at Mainfreight in November or December 2016 and only worked there for two or three months.

33. Later in the hearing, the applicant stated that when his migration agent informed him that his Student visa had been cancelled, he was told that he could not work anymore so he left his job. His Student visa was cancelled on 8 June 2018. Both versions of his evidence tend to indicate that he worked at Mainfreight for considerably longer than two or three months.

34. The Tribunal asked the applicant why he was working if his migration agent told him that he did not have work rights in Australia. He responded that he is “not working directly”. He stated that his friend is helping him out and giving him some money. When the Tribunal pointed out that if he was being paid for his labour that was working, he responded that he had no money to live. This is not consistent with his evidence that his girlfriend has been paying his rent and supporting him for the last one and a half years. The inconsistencies in his evidence raise concerns in relation to his credibility as a witness. His evidence also tends to indicate that he has breached other immigration laws besides his breach of condition 8202(2) of his Student visa.

35. The Tribunal does not give this consideration any weight in the applicant’s favour.    

    Degree of hardship that may be caused

36. The Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that he only studied a Diploma. He stated that without higher education he does not have anything. He stated that no one would give him a job if he only has a Diploma. He responded that he does not have opportunities in India. He stated that if he returns to India with a Diploma it is nothing.

37. The Tribunal accepts that it may be more difficult for the applicant to obtain employment in India if his highest qualification is a Diploma rather than a Bachelor degree.

38. In an undated statement filed with the Tribunal following the hearing, the applicant stated that he wants to continue his studies and get a higher education so that he can have a brighter future.

39. The Tribunal gives this consideration some weight in the applicant’s favour.

    Circumstances in which the ground for cancellation arose

40. The applicant gave evidence that his father was involved in a bicycle accident in 2017, suffered a broken leg and injury to some discs in his spine and his doctor said he would not survive. He stated that his focus was on his father. He stated that he was not going to leave the country and was disappointed. He stated that his mind was not focussed, he did not go to College and his Student visa was cancelled. 

41. The Tribunal asked the applicant why he did not return to India if he was concerned about his father. He responded that his mother told him that they were there to worry about him. He stated that he was sending money to his father when he was working. When asked whether the reason why he did not enrol in a registered course of study was because he could not focus on his studies after his father’s accident or because he could not pay the fees (as he claimed earlier). He responded both. He stated that he always relied on his father to pay his fees but after the accident the family savings were spent on his father.

42. The applicant stated that the last time he studied in Australia was in 2017. He stated that since then he has not been enrolled in a registered course of study due to financial hardship for his family and here.

43. The Tribunal asked the applicant whether he informed his education provider of the problems he was having and seek their assistance. He responded yes. He stated that they gave him an extra two to three weeks to pay his fees, but he could not afford to do so. He stated that he asked his friends, but they were all students. He stated that he could not work more hours. He stated that he did not consult a student counsellor at his College. When asked whether he spoke to the Department about the problems he was having, he responded no and stated that he never spoke to anyone in the Department.  

44. The applicant has provided the Tribunal with medical records for his father. They indicate that his father was admitted to hospital on 12 July 2016 and not 2017 as claimed by the applicant. The evidence referred to in paragraph 23 above indicates that the applicant was  enrolled in a Diploma of Business from 4 January 2016 to 1 January 2017 and completed that course. This is not consistent with his evidence that he was unable to focus on his studies after his father’s accident (on 12 July 2016) and that he was unable to pay his fees.

45. Despite these claims, the applicant was still able to enrol in the Advanced Diploma of Business with a different education provider from 13 February 2017 to 11 February 2018. This was after his father’s accident on 12 July 2016. His enrolment in this course was cancelled for non-commencement of his studies and not for non-payment of fees as he claimed. (See paragraph 23 above). Despite his claims of financial hardship, he has been able to employ the services of a migration agent. 

46. In an undated statement filed with the Tribunal following the hearing, the applicant stated that he was unable to focus on his studies due to his father’s accident and was also facing financial issues as his father was the only person who ran the family in India. In view of the above, the Tribunal does not accept that his failure to comply with condition 8202(2) of his Student visa was because of his father’s accident. 

47. The Tribunal gives this consideration little weight in the applicant’s favour.

    Past and present behaviour of the visa holder towards the Department

48. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department.

49. The Tribunal gives this consideration some weight in the applicant’s favour.  

50. Whether there would be consequential cancellations under s.140 of the Act

51. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act.

1. The applicant gave evidence that he has a girlfriend in Australia. He stated that his girlfriend is from India. He stated that she is from the same State as him but comes from a different city. He stated that she is not a permanent resident of Australia and is currently on a subclass 485 Temporary Graduate visa.

2. The Tribunal gives this consideration no weight in the applicant’s favour.

   Legal consequences of a decision to cancel the visa

3. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

4. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.

5. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa.

6. The Tribunal gives this consideration no weight in the applicant’s favour.   

   Australia’s international obligations

7. The Tribunal asked the applicant whether there was any reason why he could not return to India. He responded that there was. He stated that their neighbours are not good and they have land problems with them. He stated that they always tell his father that “whenever one of your sons comes we will hit them”. He stated that his great grandfather gave them the land. He stated that his father’s accident happened because of the dispute over the land. When asked whether his father went to the Police, he answered yes. He stated that they did not find anything and the “guy was drunk”.

8. The applicant stated that his sister still lives at home and has now completed her studies. When asked whether he had any problems with these people in India, he responded yes. He stated that it started when he was a child. He stated that he followed his father. He stated that after he and his younger brother left India “things got bigger”. When asked whether the land dispute was between his father and his neighbour, he responded that on paper the land is in his name and the neighbour wants the land. He stated that everything was reported to the Police.

9. The Tribunal finds the applicant’s evidence that the land in dispute is in his name to be implausible. His evidence is that the land was inherited from his great grandfather. It is highly unlikely that the land would be in his name if his father is still alive, his father was running the family’s financial matters, his father had leased the land after his accident in 2016 and his father is now able to pay his tuition fees in Australia as he claims. The Tribunal does not accept that the land is in his name.

10. In an undated statement filed with the Tribunal following the hearing, the applicant stated that his life is in danger if he returns to India. He stated that that was why he came to Australia for his higher education. He enclosed a written statement from his father in which his father stated there was a “quarrel with his family in 2013 and his son’s life was in danger, so he went to Australia in 2014 to study. He stated that his son’s life is not safe in India.

11. The applicant did not claim that his life was in danger in India to the Department or to the Tribunal, either before or at the hearing, despite the Tribunal specifically asking him whether there was any reason why he could not return to India and whether he had any problems with his neighbours in India. It was only after the hearing that he made this claim. The Tribunal would expect him to have responded to the NOITCC to the Department and put this information before the Department if he genuinely feared for his life if his Student visa was cancelled and he had to return to India.

12. The Tribunal would also expect the applicant to have put this evidence before the Tribunal, including the statement from his father, prior to the hearing if he genuinely feared for his life on his return to India. His failure to do so raises serious concerns about the credibility of this claim.

13. The applicant gave evidence to the Tribunal that problems with his neighbours started when he was a child but did not articulate what those problems were. Despite this, he was able to live in India from his childhood until the age of nineteen and a half years until he left for Australia on 12 September 2014 without suffering any harm from his neighbours. His father’s statement indicates that there was a quarrel with his family in 2013 and the applicant’s life was in danger. Despite this, he was able to live in India until 12 September 2014 without suffering any harm from his neighbours.

14. The applicant’s father is not an independent witness. His evidence has not been tested. The Tribunal places no weight on his evidence. The Tribunal does not accept that the applicant’s life is in danger, as a result of a dispute with neighbours over land, if he returns to India.

15. Having considered all the evidence, the Tribunal is not satisfied that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations.

16. The Tribunal gives this consideration no weight in the applicant’s favour.

    Any other relevant matter

17. The Tribunal is not aware of any other relevant matter.

18. The Tribunal gives this consideration no weight in the applicant’s favour.  

    CONCLUSION

19. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the Student visa should be cancelled.

    DECISION

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

    L. Symons
    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.