Singh (Migration)

[2020] AATA 569

Singh (Migration) [2020] AATA 569 (19 February 2020)

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpartap Singh

CASE NUMBER:  1933252

HOME AFFAIRS REFERENCE(S):          BCC2019/3163362

MEMBER:Amanda Pearson

DATE:19 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 19 February 2020 at 6:52pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – stress and anxiety because of mother’s car accident – study history – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 8, conditions 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 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 was not enrolled in a registered course from 29 July 2019 and as such breached condition 8202(2)(a). 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 Friday 24^th January 2020 to give evidence and present arguments.  

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:

·be enrolled in a full time registered course: 8202(2)(a)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

8.      On 20 January 2020, the applicant provided the Tribunal with the following documents:

·     a covering letter dated 20 January 2020 outlining general submissions as to why the applicant’s visa should not be cancelled;

·      a medical certificate in relation to the applicant’s mother dated 8 August 2019;

·     an Advanced Diploma of Business certificate from Elite Education Vocational Institute dated 28 September 2018 awarded to the applicant;

·     the applicant’s transcript of results in relation to the Advanced Diploma of Business course;

·     a Diploma of Business certificate from Elite Education Vocational Institute dated 1 May 2018 awarded to the applicant; and

·     the applicant’s transcript of results in relation to the Diploma of Business course.

9.      In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10.       The applicant provided the Tribunal with a copy of the delegate’s decision which outlined that the Provider Registration and International Student Management System (PRISM) indicated that the applicant had not been enrolled in a registered course since 29 July 2019. The delegate cancelled the visa on14 November 2019.The Tribunal discussed this with the applicant and he confirmed this to be the case. Accordingly, the applicant has not complied with condition 8202(2) for nearly 4 months before the visa was cancelled.

Consideration of the discretion to cancel the visa

11.       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 Advice Manual (PAM3) ‘General visa cancellation powers’.

Background evidence taken at hearing

12.       The applicant arrived in Australia on 21 December 2014.  He was born in India on 15 July 1994 and is 25 years of age.  He is single and does not have any children.

13.       In relation to his family background, the applicant informed the Tribunal that his parents are farmers in Punjab, India. He has an older brother who works with his parents.  He also has a younger sister who is studying in India. 

14.       The applicant is currently living with his sister-in-law in Blacktown, Western Sydney.  His sister-in-law is studying Information Technology.

15.       The applicant explained to the Tribunal that he came to Australia from India to gain an overseas higher education qualification. The applicant confirmed with the Tribunal that he initially came to Australia for the purpose of undertaking study in a full-time registered course in Australia.  He told the Tribunal that he completed a Diploma of Business and an Advanced Diploma of Business in 2018. 

16.       The applicant was subsequently granted a student visa on 13 November 2018 to study a Bachelor of Business (Business Management) course. Prisms records indicate that the applicant has not completed any course of study since 13 November 2018 and the applicant confirmed the same to the Tribunal.

17.       The applicant told the Tribunal that the reason he has not completed any study in Australia since the grant of his current student visa was because his mother was involved in a car accident on 7 July 2019.  He told the Tribunal that his mother sustained spinal injuries and a fracture. The applicant spoke about how his mother’s medical condition at that time caused him severe stress and anxiety.  The mother’s medical certificate dated 8 August 2019 states that his mother was discharged from Vishnu Multispeciality Hospital on 8 August 2019 due to being in a satisfactory condition. He confirmed with the Tribunal that his mother has now fully recovered from the accident.  He told the Tribunal that he forgot to enrol in a degree course in July 2019 because he was emotionally shattered about his mother’s spinal injury. 

18.       The applicant also claims that whilst he commenced the Bachelor of Business (Business Management)  course, he failed two subjects in second semester 2018. He subsequently went to India from December 2018 to February 2019 to visit family.  

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

19.       The applicant explained in the hearing that he wanted to have a good education which would set him up in India and make his parents proud as they wanted him to come to Australia to study business courses so that he could start a business in his home country.  He told the Tribunal that his father has been financially supporting him and he came to Australia because his parents had insisted he study in Australia. He told the Tribunal that if his visa was cancelled, that it would be very difficult for him because his parents would be disappointed and it would hurt his parents if he returned to India with no further qualifications.

20.       The Tribunal gives some weight to the applicant’s stress and pressure he may feel if he has to return to India. The Tribunal appreciates the significance of obtaining a student visa for the applicant and his family, but it does not operate to ameliorate the applicant for a lack of prioritising his studies.

The extent of compliance with visa conditions

21.       The applicant has stated that he has complied with all other conditions on his visa.  There is nothing before the Tribunal to indicate that this is not the case. The applicant also indicated that he complied with all conditions in respect to his initial student visa. The evidence supports this assertion. 

22.       The applicant did not maintain enrolment at a Bachelor level since the 27 November 2018, a period of eleven months and has not been enrolled in a registered course of study for a period of three months while remaining in Australia on his current student visa.

23.       The Tribunal gives some weight in favour of the applicant complying with his initial visa and not cancelling his current visa, however it remains mindful that it is expected that all visa holders adhere to the conditions on their visa. Nevertheless, the Tribunal considers the applicant’s extent of non-compliance with condition 8202 in respect to his current student visa to be significant and consequently, affords considerable weight in cancelling the applicant’s visa.

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

24.       The applicant explained that if his visa is cancelled then it will hurt his parents as they have provided a lot of support to him and they have aspirations for him to open a successful business in India.

25.       The applicant also explained that his future will be ruined if he is not able to study in Australia as his chosen course of business if completed in India, is very limited and not well regarded in his home country.

26.       The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

27.       The Tribunal also accepts that the hardship is felt by family members who may also feel let down and disappointed.

28.       The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing.  However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment.  Whilst appreciating the applicant and his Indian family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

Circumstances in which ground of cancellation arose.

29.       The applicant told the Tribunal that he failed his first two subjects of his Business (Business Management) course.  He claimed he found the course difficult. He stated he attended the course subjects and passed the assignments.  The applicant further claimed that he failed the exams for the two subjects he attempted to complete.

30.       The applicant then subsequently went back to his home country to visit his family from November 2018 to February 2019.  The applicant did not attempt to repeat his failed subjects or continue with his studies upon arriving back in Australia in February 2019.

31.       The applicant also claimed to the Tribunal that the reason he has not completed any study in Australia since the grant of his current student visa was because his mother’s car accident in July 2019. The applicant testified that his mother’s spinal injuries and fracture caused him great angst and stress. He told the Tribunal that he forgot to enrol in a degree course in July 2019 because he was emotionally shattered about his mother’s spinal injury.

32.       The Tribunal acknowledges that the applicant has stated he wishes to study in Australia.  The Tribunal has given some weight to his claim that he experienced difficulties with his studies and his mother’s injuries.  However, the applicant has not completed any courses since the grant of his current visa.  The Tribunal does not accept this equates to a compelling need to remain in Australia in light of the period of time in which the applicant has not studied. The Tribunal accepts that adverse personal circumstances may have caused the applicant pressure and stress. However, appreciating there would have been pressure and stress, student visas are granted for the purposes of studying and achieving a qualification.  Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach. 

Past and present behaviour of the visa holder towards the department

33.       There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

34.       This is not relevant to the applicant.

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

35.       In the event that the applicant’s visa is cancelled,he would need to obtain a bridging visa to ensure he is lawful until he makes arrangements for his departure. The applicant could also seek migration advice.

36.       The Tribunal appreciates that the applicant would face a three year exclusion period and would need to ensure his immigration status was lawful, however these are natural consequences of a cancellation and as such, the Tribunal gives minimal weight in favour of the applicant.

Australia’s international obligations

37.      

There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations.  The Tribunal places no weight on this in favour of the applicant.

Any other relevant matters

38.       This is not relevant to the applicant.

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

DECISION

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

Amanda Pearson
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.