Singh (Migration)

[2020] AATA 616

Singh (Migration) [2020] AATA 616 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jagjeet Singh

CASE NUMBER:  1711024

HOME AFFAIRS REFERENCE(S):          BCC2017/1098423

MEMBER:Gregory Sarginson

DATE:3 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 March 2020 at 4:35pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – suffered burns to face – did not seek medical dispensation – working as assistant – 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 16 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector 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 was not enrolled in a registered course of study. 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 5 July 2019 to give evidence and present arguments.

4. Prior to the hearing, the applicant provided documents in support of the application for review, relevantly being:

   a)    A copy of the delegate’s decision;

   b)    Clinical notes and records from Ryde Hospital in respect of the applicant being admitted to hospital on or about 14 February 2016 and discharged on 15 February 2016 for treatment in respect of facial burns;

   c)    Photographs of the applicant’s face taken at Ryde Hospital and soon after discharge from hospital showing facial burns.

   d)    Email to the Tribunal dated 24 June 2019, relevantly stating that: “Before I received cancellation of my visa I met with fire accident which caused face burn due to which I had to admit in hospital.  Eve (sic) though they mentioned as minor burns on my face I was unable to recover fast because of the infection due to which I couldn’t attend my college or update them my situation.  As a result they update immigration that I failed to attend college.  After recovery when I went to college they mentioned that they have updated immigration that I vailed to attend college and they can’t change anything at that time.  I approached to (sic) immigration agent after received (sic) student cancellation email, and they suggested me to put in file to MRT (sic)”.

5. Prior to the hearing, the Tribunal obtained the following documents:

   a)    Provider Registration and International Student Management System (‘PRISMS’) record kept by the Department of Education which details courses that an international student has enrolled in, based on the enrolment information of the education provider.

   b)    Movement records setting out the applicant’s travel to and from Australia (if any).

   c)    A copy of the Department file which included the Notice of Intention to Consider Cancellation of Visa (‘NOICC’) and the applicant’s written response to the NOICC.  The applicant’s response to the NOICC and the PRISMS records are referred to in the decision of the delegate dated 16 May 2017.

6. The information contained in the PRISMS record and the movement records were consistent with the information contained in the delegate’s decision and the applicant’s oral evidence.  The information contained in the Department’s file was also consistent with the information contained in the delegate’s decision and the applicant’s oral evidence. Concomitantly, there was no adverse information contained any document that had not been provided by the applicant that would be the reason, or part of the reason, for affirming the decision under review.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course of study from 30 July 2016.

11. The applicant arrived in Australia in 2014 on a student visa.  The applicant’s home country is India, and he is currently 29 years of age.

12. Prior to arriving in Australia, the applicant had obtained a Diploma of Electrical Engineering in India in 2012.

13. The applicant was originally enrolled in a General English course and a Bachelor of Electrical Engineering course at Queensland University of Technology.  In late 2014, after speaking to friends and deciding that he did not like the course, the applicant spoke to a migration agent.  After receiving advice, the applicant transferred to a Diploma of Management and Advanced Diploma of Management course at Apex Institute in Sydney.  The applicant relocated from Brisbane to Sydney to study.  As best the applicant could recollect, the Bachelor of Electrical Engineering enrolment was cancelled in May 2014 and the applicant commenced the Diploma of Management course in June 2014.

14. The applicant completed the Diploma of Management course and Advanced Diploma of Management course by August 2015.

15. The applicant then enrolled in an Advanced Diploma of Hospitality course at Apex Institute commencing August 2015.  The applicant stated that his intention was eventually to again enrol in a Bachelor of Electrical Engineering course.

16. The applicant stated that on or about 14 February 2016 he suffered burns to his face and left when he was lighting a barbeque.  The applicant had turned on the gas without realising the gas had been on for a period of time, then when the barbeque ignited flames shot up and the applicant was burnt in the face.

17. The applicant was treated overnight at Ryde Hospital and discharged.  The applicant stated that eh further attended the burns clinic at the hospital on one occasion one week later; and then a further two occasions over a one month period.

18. The applicant stated he was orally advised by a doctor at the hospital to avoid sunlight.  The applicant’s face was not bandaged, but he was advised to apply cream regularly to the burns.  The applicant stopped attending classes at Apex Institute.  The applicant stated that he “stayed at home”.  The applicant lived with friends and stated he “didn’t go out at all” because he “just didn’t’ feel comfortable”.

19. The applicant did not inform Apex Institute that he was not attending classes, or seek any academic dispensation due to his medical condition, for a period of 2 to 3 months.  When asked why the applicant took months to inform his education provider of his medical condition, the applicant stated that he “couldn’t explain”.

20. On 30 July 2016 Apex Institute cancelled the applicant’s enrolment.

21. The applicant did not seek to enrol in any further courses until he received the NOICC.  The delegate’s decision referred to the applicant enrolling in an Advanced Diploma of Hospitality Management and an Advanced Diploma of Business, but that such enrolments were cancelled and the applicant had not been enrolled in a registered course of study for over 8 months.  The applicant did not dispute the information contained in the delegate’s decision that he was not enrolled in a registered course of study during the relevant period after 30 July 2016.

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

    Consideration of the discretion to cancel the visa

23. 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’.

24. The Tribunal considered the applicant’s evidence in the context of the discretionary factors as follows:

    Purpose of the Visa Holders Travel and Stay in Australia; Whether the Visa Holder Has a Compelling Need to Travel or Remain in Australia

25. The applicant stated that he had not studied since the cancellation of his enrolment in the Advanced Diploma of Hospitality course.  After receipt of the NOICC, the applicant had sought advice from a migration agent and “thought” that he had enrolled in “one or two courses” but could not clearly recollect what they were.  After cancellation of the visa, the applicant also met with a migration agent who suggested the applicant consider enrolling in an electrical engineering course.  The applicant stated that was not sure whether her enrolled in any further courses.

26. When asked why he had not enrolled in any further courses of study in circumstances where the applicant had travelled to Australia on a student visa for the purpose of study, the applicant had no clear explanation of why he had failed to seek to enrol in registered courses of study; or study at all; over a significant period of time. 

27. The applicant stated that he had previously worked in hospitality but since approximately “one year and a couple of months ago” he had been working for Ozeal Electrical Company.  The applicant stated he assists a licensed electrician to perform electrical work, and described his role as “like an apprentice”.  The applicant stated that he worked 15-20 hrs per fortnight and earned approximately $400-$500 per week.

28. The applicant stated that he “sometimes” sends money back to his family in India.

29. The applicant stated that if the Tribunal exercised its discretion not to cancel the visa, his plan was to seek to enrol in a Bachelor of Electrical Engineering course and “try to get back on track”.  The applicant stated that if he completed a Bachelor of Electrical Engineering course in Australia, he may return to India and open his own business, but his future plans were unclear.

30. The applicant stated that his family owns a farm in India, and if he returned to India he would assist on the farm and try to obtain a job.

31. The applicant agreed that there were Bachelor of Electrical Engineering courses in India, although he had not recently made enquiries as to what courses were available.

32. The Tribunal accepts that when the applicant first arrived in Australia it was for the purpose of study and gives some weight to the applicant’s evidence in this regard.  The applicant also gives some weight to the fact that the applicant has completed Diploma of Management and Advanced Diploma of Management courses since arriving in Australia.

33. However, weighed against that is the fact that the applicant has not performed any active study in a registered course of study since July 2016.  No cogent reasons were provided as to why, if the applicant’s intention was to study in Australia, the applicant had not enrolled in any registered courses of study since the date of cancellation of the visa by the delegate.  The applicant has also been performing work as an “assistant” to an electrician for a significant period of time, without concurrently studying or attempting to study.   The applicant has been, to some extent, assisting his family financially by sending money back to his family in India.

34. Further, on the basis of the applicant’s evidence the applicant would be able to study for a Bachelor of Electrical Engineering in India.  Although the applicant has not studied in India since 2012, he has also not studied in Australia since July 2016 and no clear reasons were demonstrated as to why studying in India would be more difficult than future study in Australia.

35. A purpose of a student visa is for study in a registered course of study.  The fact that the applicant has not studied since July 2016 is a significant factor weighed against the Tribunal exercising its discretion not to cancel the visa.

    Extent of Compliance With Visa Conditions

36. It is a condition of a student visa that the applicant be enrolled in a registered course of study and the applicant had been in breach of that condition for a significant period prior to cancellation of the visa.

37. In respect of work limitation conditions on student visas and bridging visas, the Tribunal does not accept there is clear evidence the applicant has breached any relevant conditions, and accordingly accepts that the applicant has complied with such conditions.  The Tribunal gives some weight in favour of the applicant on this discretionary factor.

    Degree of Hardship That May Be Caused (Financial, Psychological, Emotional or Other Hardship).

38. The Tribunal accepts that cancellation of a student visa may cause some financial hardship to the applicant and his family caused by the cancellation.  The cancellation may cause disappointment to the applicant’s family and the applicant, because the applicant will return back to India without an Advanced Diploma of Hospitality Management and without his intended Bachelor of Electrical Engineering.

39. However, weight against that is that the applicant was originally enrolled in a Bachelor of Electrical Engineering degree, and chose to cancel enrolment in that course and enrol in a Diploma of Management and Advanced Diploma of Management.  The applicant has also had a significant period of time to enrol and complete registered courses of study, but has not studied since July 2016. Further, any hardship is reduced by the ability of the applicant to study for a Bachelor of Electrical Engineering in India upon his return to his home country.

    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

40. The circumstances in which the ground of cancellation arose were the burns suffered by the applicant in February 2016.  No other reasons were advanced as to why the applicant stopped attending classes.

41. The medical evidence provided by the applicant and his oral evidence does not satisfy the Tribunal that there were circumstances outside the applicant’s control that prevented him from studying for any significant period of time.  The Tribunal accepts that the applicant may have been in discomfort for a short period of time due to his facial burns, but not to the extent of preventing the applicant from studying.  Further, the applicant did not notify his education provider or seek any assistance from his education provider for a number of months after the incident.

    Past and Present Behaviour of the Visa Holder Towards the Department

42. The applicant responded to the NOICC, and the Tribunal has accorded some weight to the fact that he responded.  There is no evidence that the applicant has been dishonest towards the Department; or provided incorrect information.  The Tribunal gives some weight in favour of the applicant on this discretionary factor.

    Whether There Would Be Consequential Cancellations Under s 140

43. This discretionary factor is not relevant.

    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

44. If the visa is cancelled, the applicant will have a period of time under the conditions of the bridging visa to arrange for his return to India.  It is only if the applicant breaches such conditions that he will be unlawful and liable to detention.

45. If the visa remains cancelled the applicant will only be able to apply for a limited range of further visas and the Tribunal has given some weight to that factor.  Given his evidence, the Tribunal does not accept he will become unlawful and liable to detention.

    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

46. There is no evidence before the Tribunal to indicate that any international obligations would be breached as a result of the cancellation.  No weight is given to this discretionary factor.

    If It’s A Permanent Visa, Whether The Former Visa Holder Has Strong Family, Business Or Other Ties In Australia

47. This discretionary factor is not relevant.

    Any Other Relevant Factors

48. There are no other relevant factors.

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

    DECISION

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

    Gregory Sarginson
    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.