Singh (Migration)

[2020] AATA 860

Singh (Migration) [2020] AATA 860 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jugraj Singh

CASE NUMBER:  1932049

HOME AFFAIRS REFERENCE(S):          BCC2019/3201039

MEMBER:Peter Booth

DATE:11 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2020 at 8:39am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower level than visa requirement – discretion to cancel visa – factors for and against cancellation – change to lower-level vocational course – requested deferral of higher-level academic course – not informed that deferral had been refused – did not inquire about status of deferral – decision under review affirmed

LEGISLATION

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 November 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).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202. 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. The applicant appeared before the Tribunal on 2 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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.

   Did the applicant comply with condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant must maintain enrolment in a registered course that, once completed, will provide a qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b). In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course at the same level or higher for which he was granted his student visa.

8. The delegate’s decision dated 1 November 2019 records the reasons for cancellation of the applicant’s student visa. The applicant was granted a student (TU is 500) visa on 1 November 2018 on the basis that he was enrolled to study a bachelor of business commencing on 13 August 2018. Upon completion of the bachelor of business, the applicant would obtain a level 7 (bachelor degree) from the Australian Qualifications Framework (AQF). On 2 May 2019 the applicant’s enrolment in the bachelor course was cancelled by the education provider. On 15 February 2019 the applicant obtained enrolment in a diploma of building and construction (building). At the hearing, the applicant confirmed that he had not been enrolled in a bachelor level course subsequent to 2 May 2019.

9. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

   Consideration of the discretion to cancel the visa

10. 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’.

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover the following matters.

    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

12. The applicant arrived in Australia on 24 June 2015 intending to study a bachelor of business course. The applicant did not give any evidence as to whether he has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

13. The applicant confirmed that he was not enrolled in a level 7 registered course of study from 2 May 2019.

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

14. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    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

15. The applicant gave evidence at the hearing which was often confused, contradictory and vague. Nonetheless the Tribunal rehearses the applicant’s evidence in substance. He arrived in Australia on 24 June 2015, is the holder of a student (subclass is 573) visa. He intended to study a bachelor of business course although he first had to complete a diploma of accounting. He said in answer to a question from the Tribunal regarding his attendance at the diploma of accounting that that he “went for 6 months”. He did not elaborate in answer to a question from the Tribunal, he said that he did not complete this course. The Tribunal enquired whether he had commenced the bachelor of business course to which he said “I stopped that one and moved to horticulture, then there was a patch up, and I had to come back again to bachelor of business”. He did not explain this. The Tribunal enquired whether he had ceased attending the bachelor of business course to which he said “once I finished certificate 4, I moved to horticulture, then an issue”. The Tribunal enquired why the bachelor of business enrolment had been cancelled on 2 May 2019. He responded “when I got into bachelor of horticulture, I spoke to a friend in India, I was told there was a boom in construction, I got a COE in painting and decorating and building and construction, I gave them a letter for deferral, but without letting me know they cancelled the CEO”. The Tribunal enquired why the applicant had not maintained enrolment in a course at a bachelor level. He responded “I was waiting for a deferment, but then I got notification from the Department, I went back to the college, I found that they cancelled my enrolment, I applied for a new COE”. The Tribunal repeated the question several times, ultimately the applicant said “the new course was in painting and decorating, I was attending that one, I applied for deferment, I was just waiting for decision”. The Tribunal enquired whether the applicant has been enrolled in a bachelor level course after cancellation of the bachelor of business course on 2 May 2019. The applicant responded “bachelor of business course”. The Tribunal enquired when he had enrolled in this course to which he said “it starts on 27 April 2021 and concludes on 31 December 2023”. The Tribunal again enquired when the applicant had enrolled in this course to which he said 5 September 2019”. The Tribunal enquired whether this was after he had received a notice of intention to consider cancellation of his visa to which he said “yes”. The Tribunal enquired when he had received such a notice to which he said “a few days before”. The Tribunal enquired whether he enrolled in the future bachelor of business course because and only because he had received the notice of intention to consider cancellation of his visit to which he said “because the visa was 573, I had to keep up my condition”.

16. The Tribunal observed that the applicant had provided a document titled “statement” which is in support of his application for review. It is undated, paginated and consists of 68 numbered paragraphs. The applicant said he was familiar with the document. The Tribunal observed that there was no reason advanced in the document as to why the applicant did not comply with the visa condition nor had the applicant given any evidence on that point in the hearing. The Tribunal informed the applicant that this was a critical matter to the exercise of the discretion. The Tribunal invited the applicant to respond. He said “I was going to 6 months and maintaining it, and I found out there was a booming construction, and then I received a new COE for construction and decorating, then I came to the college and asked for a deferment, then I was told that the COE was cancelled without letting me know, 2 months later I got the NOICC, then after finding out what was the reason behind, then I found out how COE was cancelled, then to maintain the 573 visa and then I applied for Ozford College, my visa got cancelled after that and I was given COEs”.

17. The applicant had also provided, immediately prior to the hearing, several documents which he said were “in relation to financial status of my family”; they appeared to be a valuation report in respect of certain real estate and a statement of wealth as at 29 February 2020 from chartered accountants in India. The Tribunal informed the applicant that these matters were not an issue and that the material would be taken into account.

18. The applicant’s migration agent was then invited to make any submissions. He said that his client arrived in Australia on 24 June 2015 and apart from 6 months, he had always maintained enrolment. He said that his client enrolled in a “painting course” on 4 March 2019, however his client was never informed that his COE was cancelled, he did not go back to check, he applied over the counter for the deferral and did not have a copy. In answer to a question from the Tribunal, apparently the applicant applied for deferral of the bachelor of business course at “the end of March”. After much discussion with the migration agent, it appears that the applicant’s sole point was that he decided to change courses from the field of business after completing about 6 months of the diploma of business course, and he enrolled in the new course on 4 March 2019. He applied for a deferral from the previous course at the end of March 2019. The application for deferral of the course was made in person “over‑the‑counter” and the applicant had no record of this. The migration agent and the applicant confirmed that at all times, the applicant communicated with the college by email and that his email address had not changed in the relevant time. The applicant also confirmed that he had never enquired of the bachelor of business course provider whether the deferral had been granted. In that regard he said “I never asked”. The Tribunal then asked the applicant directly whether the applicant had taken any steps to confirm that he had obtained the deferral. He responded “I study there for 6 months, so I applied for deferral on the desk, I got emails on my phone, I was waiting for how long the process of deferral, so they got all my emails and everything, I emailed”. The applicant’s migration agent confirmed again that the applicant had taken no steps to enquire whether his application for deferral of the bachelor of business course had been successful. The applicant’s migration agent was invited to provide a chronology of events to ensure that the Tribunal was accurately informed of relevant facts. That document, received after the completion of the hearing, is in the following terms:

S.No	Institute	Course	Relevant dates	Timeframe/Comments
1	LaTrobe University	Certificate IV in Accounting	July 2015 – February 2016	Pursued for almost 6months. Applied for release letter in February 2016. Release letter received in May 2016.
2	Technical Institute of Victoria	Certificate IV in Production Horticulture	Started on 11/07/2016 Finished on 09/07/2017	Course completed
3	Technical Institute of Victoria	Diploma in Production Horticulture	Started on 10/07/2017 Finished on 09/07/2018	Course Completed
4	Stott’s College	Bachelor of Business	Started on 13/08/2018 – March 2019	Did not complete. Applied for deferment in March 2019.
5	The Centre of Excellence	Certificate III in Painting and decorating	Started pursuing on 04/03/2019	Was studying till the visa cancellation.

1. Apparently between July 2015 and February 2016 the applicant studied a certificate in accounting but was “released” from that course in May 2016. He then completed a certificate in production horticulture between 11 July 2016 and 9 July 2017 and a diploma of production horticulture between 10 July 2017 and 9 July 2018. Thereafter he commenced a bachelor of business on 13 August 2018 but did not complete it. He applied for “deferment” in March 2019. He commenced a certificate in painting and decorating on 4 March 2019 but has not completed it, the explanation in the chronology being “was studying till the visa cancellation”.

2. Also, after the conclusion of the hearing, the applicant’s migration agent provided a variety of documents as follows: a transcript of results in the accounting certificate, a letter from the course provider in respect of the bachelor of business course confirming that his enrolment in that course was cancelled on 2 May 2019 “due to non-returning from study break”, a discontinuance of enrolment form in respect of a bachelor of accounting course confirming that the applicant had withdrawn from the course effective from 4 May 2016, a letter dated 20 February 2020 in respect of a certificate III in painting and decorating confirming that the applicant is currently enrolled in the course, a certificate confirming that the applicant had completed the certificate in production horticulture and a certificate confirming that the applicant had completed the diploma of production horticulture. These documents have been taken into account and given appropriate weight.

3. The sole ground advanced by the applicant as to why he did not maintain enrolment in a course at bachelor level was that he had requested a deferral of that course and had not been informed that the deferral had been refused. Whilst no documentary corroboration of the request for deferral was provided, the Tribunal accepts that there was such a request. It is clear from the applicant’s evidence, and the submissions of the migration agent, that the applicant understood the need to obtain a deferral of a course and to maintain a bachelor level of enrolment. The applicant said that he received no communication from the course provider to the effect that the application for deferral had been refused. The applicant also confirmed that his method of communicating with the course provider was by email and that his email address did not change during 2019. It is therefore difficult to accept that the course provider did not send an email to the applicant informing him that his application for a deferral had been refused. It is also difficult to accept that the applicant would not have received such an email if his email address did not change during 2019. However, even assuming these matters in favour of the applicant, in the Tribunal’s view it is clear that the applicant was well aware of the need to obtain a deferral and to maintain a bachelor level enrolment. The applicant said he took no steps to enquire whether he had obtained the deferral. This is a matter which was well within the applicant’s control and which he should have ensured was resolved. He did not. If the applicant had made reasonable enquiries of the course provider, he would have been informed that the application for deferral had been refused on 2 May 2019.

4. The Tribunal is not satisfied that the reason for the breach of the condition was outside the control of the applicant.

5. Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.

   Past and present behaviour of the visa holder towards the Department

6. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   Whether there would be consequential cancellations under s.140

7. The Tribunal was provided with no evidence on this point and gives it little 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

8. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by Parliament when enacting the relevant legislation. The Tribunal gives them little 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

9. There was no evidence in relation to this factor and the Tribunal gives it no weight.

   If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

10. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

11. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.