Singh (Migration)

[2020] AATA 1731

Singh (Migration) [2020] AATA 1731 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gursahib singh Singh

CASE NUMBER:  1803148

HOME AFFAIRS REFERENCE(S):          BCC2017/4261149

MEMBER:Stephen Conwell

DATE:7 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 07 May 2020 at 12:02pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – not enrolled in registered course – change of college and quality of teaching – father’s health – intention to re-enrol – applicant overseas and unable to travel due to coronavirus restrictions – no provision of telephone number for telephone hearing – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), ss 116, 362B, 379A

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 5 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 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.

3. A copy of the delegate’s decision was provided to the Tribunal by the visa holder.

4. The Tribunal exercised its discretion to hold the hearing by telephone.

5. 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 also had regard to the Tribunal’s 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 did not raise any concerns as to conducting the review hearing by phone.

6. By letter dated 19 February 2020, the Tribunal wrote to the applicant inviting him to attend an in-person hearing on 24 March 2020. The applicant replied via email of 20 February 2020 that he was overseas and attempting to return to Australia. On 20 March 2020 the Tribunal wrote to the applicant informing him that due to the COVID-19 pandemic his hearing had been postponed.  By letter dated 20 April 2020, the Tribunal again wrote to the applicant advising that due to COVID-19 it was not conducting in-person hearings for the time being and he was therefore invited to attend a telephone hearing on 7 May 2020.

7. On 21 April 2020 the applicant emailed the Tribunal confirming that he is overseas and wishes to return to Australia. The following day the Tribunal replied to the applicant again advising that due to COVID-19 it was not conducting in-person hearings for the time being and requesting that he provide a suitable telephone number in order for him to attend a telephone hearing. On 4 May 2020 the Tribunal again wrote to the applicant reminding him of the hearing scheduled for 7 May 2020 and requesting a suitable telephone number to allow him to attend a telephone hearing.  At the time of decision no reply had been received by the Tribunal.

8. In the invitations to attend a hearing the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. All correspondence with the applicant regarding the hearings was sent via his last known email address.

9. The Tribunal also sent the applicant telephone SMS Reminders about the hearing five business days and one business day before the scheduled hearing. The SMS reminders were sent to the applicant’s last known phone number. On the day of the hearing and shortly before its commencement, the Tribunal telephoned the applicant’s last known phone number three times at approximately 10:50am, 10.55am and 11:00am respectively. All attempts to call the applicant were unsuccessful. The applicant did not provide the Tribunal with any other telephone numbers and he did not attend the Tribunal hearing by telephone on the day and time scheduled.

10. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been ‘returned to sender’, and that separate SMS reminders were also sent to the applicant about the hearing. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to determine the review without taking any further action to enable the applicant to appear before it.

11. 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

12. 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?

13. 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).

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

15. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 18 May 2015. By Notice of Intention to Consider Cancellation (NOICC) dated 18 January 2018, 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 has not been enrolled in a registered course of study since 12 May 2017. The NOICC informed the applicant 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.

16. The applicant provided a brief written response to the NOICC on 23 January 2018. He sent a further email to the Department on 31 January 2018, forwarding his earlier response to the NOICC. He did not state in his NOICC response whether he agreed or disagreed on the grounds for cancellation The applicant made the following points in his brief response to the NOICC:

    ·      whilst enrolled in a Diploma of Business he heard rumours that his college was about to close down and he therefore moved his enrolment to Pacific College;

    ·      after changing colleges he felt that the quality of teaching in Pacific College was poor and he didn’t enjoy his studies there; 

    ·      his father’s health problems contributed to the stress he was experiencing in these  adverse circumstances, leading to the cessation of his studies;

    ·      he intends to re-enrol in studies very soon.

    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 to exercise its discretion to cancel the visa.

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 the material evidence available to it as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

19. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. The applicant has not been enrolled in a registered course of study on since 12 May 2017. This is an indication the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies since that date.  At the time of the delegate’s decision this period of non-enrolment exceeded eight months. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

20. The applicant was aware that remaining enrolled in a registered course of study was a condition of his visa and it was his responsibility to ensure that he complied with the conditions of his visa. The Tribunal therefore gives this factor considerable weight in favour of cancellation of the visa.

21. The Tribunal notes the applicant had not identified any hardship that may be caused to him and/or any family member by the cancellation of his visa.  However, the Tribunal accepts the applicant might be subject to some financial difficulty if the visa is cancelled.  Further, based on the information before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control. The applicant’s response to the NOICC makes passing reference to him feeling “uncomfortable” at his last college; it also briefly mentions his father’s “health problem” and attaches a medical certificate from India dated 20 January 2018. The medical certificate notes that his father has been receiving treatment for “PIVD”, (which appears to refer to a prolapsed intervertebral disc) since 15 January 2017. There is no further or up-to-date information regarding his father’s health condition. Based on the limited information before it, the Tribunal does not consider there are extenuating or compassionate circumstances in this case.  

22. The Tribunal accepts that if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. He would also have limited options to apply for further visas in Australia. The Tribunal notes that he is currently back in his home country. Nevertheless, this does not satisfy the Tribunal it should exercise the discretion to set aside cancellation of the visa.

23. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s visa. 

24. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.  The Tribunal give this some little weight in favour of its discretion to set aside cancellation of the visa.

25. The Tribunal is satisfied 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.

26. Regarding Australia’s international obligations, it does not appear that this consideration is relevant and the applicant has not made any claims which would relate to this consideration.

27. There are no other relevant matters to consider.

28. The Tribunal has considered the totality of the applicant’s circumstances and has found that the applicant breached the enrolment requirement in condition 8202, and that this breach was significant. The Tribunal has not seen any evidence to indicate the applicant has undertaken study in Australia, in a registered course of study, since 12 May 2017. The applicant has not presented evidence of current or future study plans. 

29. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

30. 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  (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.