Singh (Migration)

[2020] AATA 1875

Singh (Migration) [2020] AATA 1875 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sharndeep  Singh

CASE NUMBER:  1930561

HOME AFFAIRS REFERENCE(S):          BCC2019/3220317

MEMBER:Peter Booth

DATE:3 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 03 March 2020 at 2:56pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 October 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 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 October  2019 records the reasons for cancellation of the applicant’s student visa. However, little detail of the factual basis of the cancellation is to be found in that notification. The factual matters which underpin the decision can be found in the notice of intention to consider cancellation of the visa dated 4 September 2019. The applicant’s visa was granted on 13 November 2018 in relation to a Master of Business Administration course, which would provide a level 9 qualification. The Provider Registration and International Student Management System (“PRISM”) indicated that the applicant’s enrolment in this course was cancelled on 3 April 2019. On 10 April 2019 the applicant enrolled in a Certificate III Light Vehicle Mechanical Technology course, which would provide a level 3 qualification. At the hearing the applicant affirmed the correctness of this conclusion. 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

8. 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’.

   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

9. The applicant arrived in Australia in November 2018 as the holder of a Subclass 500 student visa. He was enrolled to study a Master of Business Administration 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

10. The applicant confirmed that he was not enrolled in a level 9 registered course of study from 3 April 2019. Furthermore, he enrolled in a level 3 course on 10 April 2019. His enrolment in that course was cancelled after 21 October 2019, that being the date of his visa cancellation. He has not been enrolled in a course of study since that time.

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

11. 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

12. The applicant said that when he started the Master of Business Administration he attended all the classes and tried hard but failed all the subjects. In answer to a question from the Tribunal he said that he left the course thereafter. In answer to a question from the Tribunal as to why he changed the level of his study he said that he studied a lot and that he came to Australia to learn. He said that he went to an “agent” to get a “new start” when he decided he could not continue with the Master of Business Administration course. As to the condition requiring him to maintain a level of enrolment he said that he was not aware of this condition. He did not elaborate.

13. The applicant provided a document at the hearing. The document is a letter of offer in respect of three courses of study offered by North Melbourne College. It appears to be dated 27 February 2020. It is in respect of a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Management and a Diploma of Automotive Management. The first course is due to commence on 6 April 2020. The last course is due to be completed on 26 June 2020. The applicant said that he has accepted this offer but there is a condition that “I must have study rights”. The offer in respect of these courses does not assist the applicant’s case. They are not in respect of a level 9 course of study nor do they assist the applicant to explain why he did not maintain such enrolment in a level 9 course of study. The document is given little weight.

14. The applicant also provided a written submission in support of his application. It is dated 26 February 2020. It is broadly consistent with his evidence at the hearing. As to failing to comply with the visa condition the submission stated:

    This breach was absolutely unintentional. Sharndeep Singh states that never intended to breach any visa conditions on purpose. There is simply no reason he would reach a visa condition. When the applicant realised he will not be able to go too far in the business Administration and decided to change his study to a course where he was confident that he would excel both in written and practical, he approached an education consultant and got his course changed, not realising that he also needed to reapply for a “new” visa. The ground for cancellation arose when the visa holder failed to maintain his enrolment in a same level of study in which his previous visa was granted. The applicant only became a victim of “wrong” migration advice or can we say “missing migration advice” where he was not aware that he needed to lodge a new visa.

15. The Tribunal notes that the education agent is not identified in this submission nor was any person called to give evidence as to the circumstances in which the applicant changed the level of his study, save for the applicant himself. Accordingly there is no corroboration of the assertion that the applicant was not informed of the obligation to maintain a certain level of study.

16. The applicant asserts that he was not provided with any information by an education consultant regarding 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. It is not enough to blame others for his own decision to change from a Master’s course to a course that would provide a lower level qualification. 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

17. 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

18. 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

19. 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

20. 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

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

    Any other relevant matters

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

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

    DECISION

24. 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.