Singh (Migration)

[2020] AATA 1357

Singh (Migration) [2020] AATA 1357 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasdeep Singh

CASE NUMBER:  1930175

DIBP REFERENCE(S):  BCC2019/3200858

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 March 2020 at 10:45 am (VIC time)

DATE OF WRITTEN RECORD:                17 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 April 2020 at 12:06pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – enrolment at lower level than visa requirement – courses at original level cancelled – enrolment in lower-level courses in different subject area – family’s temporary financial hardship – no approach to education provider or department – decision under review affirmed 

LEGISLATION

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

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 October 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 6 March 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision dated 22 October 2019, made by a delegate of the Minister for Home Affairs to cancel the applicant’s sub-class 500 student visa under section 116(1)(b) of the Migration Act. The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a registered course that once completed would provide a qualification from the Australian Qualifications Framework that is at the same level as or a higher level than the registered course in relation to which the visa was granted.

4. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.  The applicant appeared before the tribunal on 6 March 2020 to give evidence.  The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages. 

5. For the following reasons the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. 

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(b) of schedule 8 to the Migration Regulations. If the applicant has breached that condition under section 116(1) of the Act, the visa may be cancelled. In the present case the applicant’s visa was cancelled because the applicant did not maintain enrolment in an AQS level 7 bachelor degree, being a Bachelor of Business degree which was cancelled on 7 August 2017, and again on 28 June 2018 at a different education provider.

7. Consequently, the applicant enrolled in a package of courses including a certificate III and IV in light vehicle management and automotive mechanical diagnosis, and a Diploma of automotive technology.  That course would provide a qualification at Australian Qualification Framework level 5, which is two levels below the registered course in relation to which the visa was granted. 

8. A Notice of intention to Consider Cancellation was issued to the applicant on 5 September 2019.

9. On 19 September 2019 the applicant responded to the notice in writing.  In his response, the applicant acknowledged his non-compliance with the relevant condition, it was unintentional and an honest mistake.  The applicant stated that his father was unable to pay his tuition fees due to various financial hardships in the family at the relevant time, and that he proposed to complete his bachelor level studies when his father’s financial position improved.

10. In the applicant’s oral evidence at hearing he again acknowledged the breach of the particular visa condition.  The applicant was an honest and candid witness.  He provided extensive reasons to the tribunal for his breach of the visa condition.  Those reasons were primarily concerned with financial difficulties that befell his family at the relevant time, which caused him to be unable to pay for his tuition fees. 

11. Based upon the evidence before the tribunal, the tribunal is satisfied that condition 8202(2)(b) has not been complied with. 

12. Having found that the condition has not been complied with, the tribunal must now 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 Procedure’s Advice Manual.

13. As to the applicant’s purpose for travel and stay in Australia, the applicant was granted a student temporary class TU, sub-class 500 visa on 10 February 2017 for the purpose of undertaking a Bachelor of Business at the Federation University of Australia.  That course is an Australian Qualification Framework level 7 course.  On 7 August 2017 the applicant’s enrolment in that Bachelor of Business was cancelled. 

14. On 22 August 2017 the applicant obtained enrolment in the Bachelor of Business through Cambridge International College.  The education provider cancelled that enrolment on 28 June 2018 for failure to pay tuition fees. 

15. The tribunal takes into account the applicant’s good study history in his relevant course before financial hardship befell the family. 

16. The applicant subsequently enrolled in a certificate III in light vehicle management, a certificate IV in automotive mechanical diagnosis, and a diploma of automotive technology.  Those courses are AQF level 5 courses.  Therefore, the purpose for which the visa was granted ended when the applicant ceased to be enrolled in a bachelor level course. 

17. The tribunal takes into account the applicant’s evidence as to the financial hardship that befell his family at the relevant time which was the reason for his failure to pay the tuition fees.  The tribunal also takes into account the applicant’s good study history before his enrolment was cancelled.  The tribunal takes into account the applicant’s evidence that his father is now financially in a position to pay for a bachelor level course.  The applicant produced documentation at hearing corroborating that evidence.  The applicant stated that he is not able to enrol in a bachelor level course presently because he does not have study rights attached to his bridging visa.  The tribunal accepts that evidence.

18. However, it is clear that the purpose for which the visa was granted ended on 7 August 2017 and then again on 28 June 2018.  It is clear, based on the evidence, that the applicant’s current course of study does not comply with condition 8202(2)(b).  Based on that evidence, I find that although the applicant has demonstrated that his primary purpose for being in Australia is for the purpose of study, the purpose of the applicant’s current visa has ended because he is not pursuing bachelor level studies. 

19. I give these factors some weight in favour of the visa being cancelled.

20. As for the circumstances in which the ground for cancellation arose, the tribunal takes into account the entirety of the applicant’s response to the Department’s Notice of Intention to Consider Cancellation.  The applicant provided that his non-compliance with the relevant condition was an unintentional and honest mistake.  He requested that the Department not cancel his visa and to permit him to complete his studies before he departs Australia, his automotive course fees were $18,800, of which he has paid $14,800 and that his course was scheduled for completion on 14 June 2019.

21. He stated further that his parents were unable to pay tuition fees due to financial hardship, and that his parents advised him to choose a course of trade that would make it easier for him to start his own business in India.  In his oral evidence at hearing, the applicant gave credible evidence entirely consistent with his response to the Department.  The applicant stated that his father had to use funds for his tuition fees to lend to a family member, and that family member unfortunately did not return the funds in a timely fashion and, therefore, unfortunately his father did not have sufficient funds to pay his tuition fees, and that his father informed him not to give up his studies, and he should study a trade course and when he can pay for the bachelor level course his father will do so.

22. Based on the evidence produced at the hearing, it is apparent that the applicant’s father now has resources to pay for a bachelor level degree.  Further in his evidence, the applicant acknowledged that he did not seek a deferral of his studies as he did not know that this avenue was available to him.  The applicant further confirmed that he did not contact the Department about these changes. 

23. Based upon all that evidence the tribunal finds that the circumstances which led to the cancellation of the applicant’s visa, were circumstances that were reasonably within his control.  The reason for that finding is twofold.  First, the tribunal considers it reasonable to expect visa holders to be aware of all the conditions that are attached to the grant of their student visas.  Second, when a prospective student applies for a student visa, they represent to the Department that they have sufficient funds to cover the cost of their tuition fees in Australia.

24. Therefore, on the basis of the evidence and those findings, the tribunal does not consider that the grounds which led to the cancellation of the visa were on account of matters reasonably outside of the control of the applicant, and the tribunal gives this weight towards the visa being cancelled. 

25. As to the extent of compliance with visa conditions, it is clear that the applicant has not complied with condition 8202(2)(b), and for the reasons that I have already set out the breach of the visa condition was not due to circumstances outside of the control of the applicant.  Further, a considerable amount of time has lapsed since the non-enrolment in a bachelor level course.  There is no evidence before the tribunal of a breach of any other visa condition.  On the basis of the above evidence, I find that the applicant did breach the relevant condition, albeit I find no bad faith on the part of the applicant in the breach of the relevant condition, and I give all these maters some weight in favour of the visa being cancelled.

26. As to a degree of hardship that may befall the applicant if the visa is cancelled, the tribunal has had regard to the applicant’s evidence as to the hardship that may befall him as a consequence of the visa cancellation.  The applicant gave honest and candid evidence as to the financial outlay for the courses that he has studied to date.  The applicant informed the tribunal that he has already spent $14,800 in course fees and that this would be wasted if he could not complete his automotive studies.

27. The applicant further stated that he has to pay $4,000 more in fees to complete his automotive diploma.  The tribunal acknowledges that the applicant has clearly demonstrated that he is a diligent student.  The tribunal also acknowledges that financial hardship would befall the applicant if the visa were to remain cancelled.  However, the relevant student visa is not at the appropriate Australian Qualification Framework level for the particular course the applicant wishes to complete. 

28. The tribunal accepts that some hardship will certainly befall the applicant as a result of the cancellation.  The tribunal gives this a little weight in favour of the visa not being cancelled. 

29. As to the applicant’s past and present behaviour towards the Department, the tribunal acknowledges that the applicant responded promptly to the notice of intention to consider cancellation dated 5 September 2019.  There is no evidence before the tribunal of anything other than good behaviour in the applicant’s dealings with the Department, and the tribunal gives this good behaviour some minor weight in favour of not cancelling the visa. 

30. There are no persons in Australia whose visas would be consequently cancelled under section 140 of the Act as a result of this visa cancellation.  The tribunal, therefore, gives this factor no weight for or against cancelling the visa.

31. As to whether there are mandatory legal consequences that flow from the visa cancellation, the tribunal acknowledges that if the visa were to be cancelled, the applicant would be excluded from making certain types of applications for certain types of visas, and may be liable to detention if he does not depart the country.  Given the circumstances set out above that relate to the visa breach, these consequences would not be manifestly unfair, as they are intended consequences of the legislation, and I give these factors a little weight in favour of cancelling the visa.

32. As to whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration would be breached as a result of this cancellation, the tribunal finds that this factor is not applicable to this case. 

33. As to whether there are any other relevant matters, the applicant gave candid evidence that he came to Australia with high hopes for his education, and that the financial predicament that befell his family was beyond his control.  He stated that his father is not a businessman with other resources to assist in paying the tuition fees.  The tribunal acknowledges that evidence, however, for the reasons that I have set out above, namely that a visa applicant represents to the Department that they have sufficient funds to pay for tuition fees when they apply for a visa, the tribunal does not consider an inability to pay tuition fees to be a matter reasonably beyond the control of the applicant.

34. The tribunal takes into account that the applicant has clearly demonstrated that he has been a diligent student in the time that he was studying.  He was clearly progressing well in his bachelor course before he was unable to pay for his fees.  He has clearly completed and done well in the various automotive studies that he has undertaken before his enrolment was cancelled.  The tribunal affords these matters some minor weight in favour of not cancelling the visa.

35. It is clear that the breach of the visa condition does not reveal any bad faith on the part of the applicant, however, it was occasioned by a matter reasonably within his control, that is, it is the applicant’s responsibility to be aware of visa conditions that are attached to the student visa and to ensure they have sufficient funds available to pay for tuition fees for their entire course at the time they apply for their student visa. 

36. It is clear that the considerations I have arrived at on examining all the evidence before me lean towards the visa being cancelled, and I so find. 

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

38. The tribunal affirms the decision of the delegate to cancel the visa.

    DECISION

39. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member