SINGH (Migration)

[2020] AATA 2848

SINGH (Migration) [2020] AATA 2848 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUKHDEEP SINGH

CASE NUMBER:  1718176

HOME AFFAIRS REFERENCE(S):          BCC2017/1911621

MEMBER:John Cipolla

DATE:6 July 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 6 July 2020 at 4.19pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – father’s financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 August 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 on the basis that the applicant did not comply with condition 8202(2) 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 Tribunal (differently constituted) invited the applicant to a hearing scheduled on 21 August 2019.  The Tribunal advised that the it had considered the material before it but was unable to make a favourable decision on that information alone. Prior to making a decision, the former Tribunal Member resigned from the Tribunal and the matter was reconstituted to the current Tribunal for consideration. 

5. The Tribunal listened to the complete audio of the hearing conducted by the previous Member on 21 August 2019.

6. The Tribunal conducted a further hearing on 24 June 2020 via telephone conferencing facilities.  The Tribunal made reference to the evidence obtained at the hearing on 21 August 2019 from the previous Tribunal Member.  The Tribunal went into considerable detail with the applicant pertaining to the questions asked and the responses provided by the applicant to ensure they were a true and accurate reflection of what transpired at the last hearing.  The applicant confirmed that it was an accurate reflection of what transpired at the previous hearing and the applicant was invited to provide any additional evidence, relevant to the review that he wished the Tribunal to consider.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

11. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record which indicates that:

    ·The applicant was granted the student visa on 25 November 2014 on the basis of his intention to undertake an approved course of study.

    ·According to the Provider Registration and International Student Management System (PRISMS), accessed by the Departmental delegate the applicant had not enrolled in a registered course of study since 26 November 2016.

12. On 20 July 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) to which the applicant did not respond.

13. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course of study from 26 November 2016. Accordingly, the applicant has not complied with condition 8202(2). Consequently the Tribunal finds that the ground for cancellation exists.

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

    Consideration of the discretion to cancel the visa

15. 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

16. 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 did study or maintain enrolment in a registered course of study from 26 November 2016. The Tribunal considers that period to be significant and the Tribunal has given this consideration significant weight in favour of cancellation. There is no evidence before the Tribunal that the applicant has a compelling need to remain in Australia.

    the extent of compliance with visa conditions

17. The applicant was not enrolled in a registered course of study from 26 November 2016.  There is no evidence before the Tribunal that the applicant has breached any other condition, the Tribunal considers the non-enrolment since November 2016 to be significant and gives this consideration significant weight in favour of cancellation of the visa.

18. The Tribunal gives this aspect weight in favour of cancellation.

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

19. In evidence to the Tribunal at hearing on 21 August 2019 and at hearing on 24 June 2020, the applicant stated that he is the only son in his family.  He advised that his father is a farmer.  He advised that his father has expended a lot of money on his education in Australia and to that end had taken out a loan in India to fund the applicant’s studies.  The applicant advised that there were financial issues for his family in India that precluded him from maintaining enrolment in registered courses of study. The applicant advised that he wanted to continue his studies in Australia and to work in Australia to provide help to his family, the applicant further advised that he wanted to complete bachelor studies in Australia.  The applicant advised that he would complete his studies and then apply for a two year temporary visa to enable him to obtain work experience in Australia before he returned to India. 

20. The Tribunal discussed with the applicant at the review hearing that a prospective student needed to provide evidence to the Department to establish that they had access to sufficient financial resources to meet the cost of their international studies and to also meet their respective cost of living expenses.

21. The Tribunal also asked the applicant how he was managing to survive in Australia since the cessation of his studies in November 2016.  The applicant stated that he was being financially by his girlfriend who was also an international student from India and that he had only undertaken some work in Australia in 2016 and had not worked since that time.

22. The Tribunal accepts the evidence provided that the applicant’s father has experienced financial hardship which has curtailed his ability to provide ongoing support to his son in Australia.  That said, if a person’s financial circumstances change and they are no longer able to provide support to their son, studying in a foreign country, there needs to be a re-assessment of whether the overseas study is sustainable going forward.  There is no evidence before the Tribunal that this issue was broached by the applicant with his family in India.  The Tribunal also notes that the applicant is in a relationship with an international student in Australia and that the cancellation of his visa could lead to a period of separation and cause the applicant and his partner some emotional hardship.

23. The Tribunal gives these circumstances limited weight in the applicant’s favour.

    circumstances in which ground of cancellation arose.

24. The ground for cancellation arose as a result of the applicant’s breach of condition 8202(2). Indeed, the evidence indicates that the applicant has not been enrolled in a registered course of study since November 2016 a period fast approaching 4 years. The applicant has explained the breach on the basis that his father, a farmer in India, was not able to sustain the applicant’s education expenses for his studies in Australia. 

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

    past and present behaviour of the visa holder towards the department

26. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past, although it should be noted that the applicant did fail to respond to the NOITCC. The Tribunal gives this consideration limited weight in the applicant’s favour.

    whether there would be consequential cancellations under s.140

27. There is no evidence before the Tribunal that there would be any consequential cancellation pursuant to s.140.

28. The Tribunal gives this aspect neutral 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

29. 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. 

30. 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.

31. The Tribunal gives this consideration neutral weight.

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

32. The applicant did not make any claims at hearing before the Tribunal on 21 August 2019 that he would face any problems if he returned to India. The applicant was asked whether he would be placed in jail or forced into the military or whether he would face harm at the hands of the government.  The applicant advised “no I do not have any problems in India.”  At hearing before this Tribunal the applicant advised that he might have to engage in military service in India but voiced no objection to such service.

33. On the evidence, the Tribunal is not satisfied that Australia would be in breach of any international obligations in case of cancellation.

34. Overall, the Tribunal gives this aspect limited weight in the applicant’s favour.

    any other relevant matters.

35. There are no other relevant matters raised by the applicant.

36. 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.

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

    DECISION

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

    John Cipolla
    Senior Member