Singh (Migration)

[2020] AATA 1829

Singh (Migration) [2020] AATA 1829 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjeet Singh

CASE NUMBER:  1933268

HOME AFFAIRS REFERENCE(S):          BCC2019/3329157

MEMBER:Peter Booth

DATE:4 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 04 March 2020 at 9:15am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course – lengthy gap in enrolment – applicant changed to vocational course – decision under review affirmed          

LEGISLATION

Migration Act 1958 (Cth), s 116
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 21 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 did not comply with condition 8202(2)(b) in that he had not maintained enrolment in a registered course that, once completed, would provide a qualification that was the same level as, or a higher level than, the registered course in relation to which his visa was granted. 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 28 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from  Ms Khaisha Sethi. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

5. 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?

6. 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.

7. The delegate’s decision dated 21 November 2019 records the reasons for cancellation of the applicant’s student visa. The applicant was enrolled in a Bachelor of Business (Management) due to start on 28 May 2018 and to be completed on 16 May 2021. This course, once completed, would provide a level 7 qualification from the Australian Qualifications Framework (AQF). The applicant’s enrolment in the course was cancelled by the education provider on 10 September 2018. On 23 October 2019 the applicant obtained enrolment in a Bachelor of Business (Leadership and Management), another level 7 qualification. However this course was not due to start until 20 March 2023.

8. After the enrolment in the Bachelor of Business (Management) course was cancelled, the applicant enrolled in a Certificate III in Carpentry and a Diploma of Building and Construction. The highest AQF level of those courses is level 5. The applicant was contacted by the Department on 18 October 2019 and informed of the Department’s intention to consider cancellation of his visa. On 23 October 2019 he obtained enrolment in the Bachelor of Business (Leadership and Management) course. Accordingly the delegate found that the applicant did not hold an enrolment at AQF level 7 from 10 September 2018 to 22 October 2019. The applicant confirmed the correctness of this finding in the hearing.

9. On the evidence before the Tribunal the applicant was not enrolled in a full-time registered course at the same level as or higher than the registered course in relation to which his visa was granted. Accordingly the applicant has not complied with condition 8202(2)(b).

   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 13 May 2016 as the holder of a Student (Subclass 572) visa. He intended to study a Diploma of Business and an Advanced Diploma of Business. He said that in 2018 he enrolled in 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 10 September 2018 to 22 October 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 arrived in Australia on 13 May 2016. At that time he held a Subclass 572 student visa. He said that he intended to study a Diploma of Business and an advanced Diploma of Business. He said that in 2018 he enrolled in a Bachelor of Business course. He did not complete the Diploma of Business or the Advanced Diploma of Business, although he said that he did start them. He also commenced the Bachelor of Business course but said that he abandoned this course after approximately four months. The Tribunal asked whether he had been enrolled in a bachelor level course after 10 September 2018. In reply he said “at the time I was not aware that I had breached the condition of the visa and when I got notice of cancellation that is when I enrolled because before that I did not know that I had breached the condition”. The Tribunal enquired what course he had enrolled in. He responded “Advanced Diploma of Leadership and Management and Bachelor of Business in Leadership and Management”. The Tribunal enquired when he had enrolled in these courses. He said “I cannot remember the exact date”. When the question was repeated he said “I enrolled in January, 2019”. It was at this point that he produced confirmation of enrolment documents. The first was in respect of an Advanced Diploma of Leadership and Management which is due to start on 12 July 2021. The second was in respect of a Bachelor of Business (Leadership and Management), due to commence on 20 March 2023. The Tribunal enquired when he had enrolled in these courses to which he said “January 2019”. The Tribunal enquired why he was enrolling in courses, the first of which did not commence until July 2021. He responded “because there is an ongoing diploma in building and construction which will finish in July”. The Tribunal enquired whether he had enrolled in these two courses after receiving notice of intention to consider cancellation of his visa, to which he said “yes”. The Tribunal observed that the delegate’s decision recorded that the notice of intention to consider cancellation of the visa was dated 18 October 2019. The applicant gave no substantive response.

16. The Tribunal explained to the applicant that the issue was his failure to maintain a particular level of enrolment and invited him to comment upon it. The applicant responded as follows: “I came with an enrolment in a diploma, I took up the bachelor but left it, then carpentry and building construction, until I got notice I was not aware that I breached the conditions because I have not read the conditions. I was not aware of the condition. By this this time it was too late.”

17. The applicant had also filed with the Tribunal a submission in support of his application. It is undated and not paginated but the applicant’s name is typed at the end. The applicant appeared to have a copy of this document in his possession at the hearing. The Tribunal enquired whether he had written the submissions to which he said “yes with the help of friends”. The submission provides some more detail of the applicant’s circumstances but is broadly consistent with his oral evidence. As to the reason for changing his course in breach of the condition there was little advanced, however the applicant states “after receiving this email from Department of Home Affairs, my prompt response was replying the email with correct and required details. I didn’t know about the seriousness of the email received. Thus, consulted one of the education agents in the market and got to know that I can’t study a vocational sector course at a higher education visa. They explained me in detail that I should have applied for a new visa while taking up a certificate III or diploma level as my current visa is for higher education only. But I would promise that I was unaware of the fact that I am breaching one of the conditions of student visa”. To this he added “I was unaware about the seriousness of not maintaining the study level for which I have applied my visa.”

18. The applicant asserts that he was not aware of a possible breach of his visa conditions consequent upon changing the level of study. The Tribunal considers it was the applicant’s responsibility as the visa holder to be familiar with the conditions attached to his student visa. The Tribunal does not consider that the circumstances in which the cancellation arose were beyond the control of the applicant. Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

19. 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

20. 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

21. 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

22. 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

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

    Any other relevant matters

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

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

    DECISION

26. 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.