Singh (Migration)

[2020] AATA 1411

Singh (Migration) [2020] AATA 1411 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Love Singh

CASE NUMBER:  1929646

HOME AFFAIRS REFERENCE(S):          BCC2019/3201298

MEMBER:Peter Booth

DATE:31 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 31 January 2020 at 8:42am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher education course ceased – applicant changed to diploma 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 17 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 29 January 2020 to give evidence and present arguments.

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 17 October 2019 records the reasons for cancellation of the applicant’s student visa. The applicant’s visa was granted in relation to a bachelor of Information Technology course, which would provide a level 7 qualification. The Provider Registration and International Student Management System (PRISMS) indicated that the applicant’s enrolment in this course was cancelled on 30 August 2017. On 7 September 2017 the applicant enrolled in a bachelor of information systems course, which enrolment was subsequently cancelled on 26 April 2018 for cessation of studies. On 15 February 2018 the applicant obtained enrolment in the course package leading up to the diploma of automotive technology. The highest AQ F level for this course package is AQ F level 5. After receipt of a notice of intention to consider cancellation of his student visa the applicant obtained enrolment in a bachelor of business commencing on 16 November 2020. 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 from 30 August 2017 to 7 September 2017 and from 26 April 2018 until the date of enrolment in the bachelor of business, sometime after 27 August 2019 that being the date of the notice of intention to consider cancellation. 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’.

9. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

   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

10. The applicant arrived in Australia for the purposes of undertaking a bachelor of information technology degree at Southern Cross University. The applicant gave no evidence as to whether he has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

11. 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 from 30 August 2017 to 7 September 2017 and from 26 April 2018 until the date of enrolment in the bachelor of business, sometime after 27 August 2019 that being the date of the notice of intention to consider cancellation. This was affirmed by the applicant at the hearing.

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

12. 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

13. The applicant has provided no written submissions to the Tribunal and no other documents in support of his application. At the hearing the applicant gave evidence the substance of which was as follows. The applicant said that his purpose in Australia was to study and then he came to Australia to undertake a bachelor of information technology. However he was offered a job in India for which he was unqualified. He said that he then changed his course but the consultant did not tell him that he was breaching any of the conditions. The job offer was apparently as an automotive mechanic or as a manager of an automotive mechanical business. The applicant said that he changed from the bachelor of information technology to the bachelor of information systems course as a result of a change in college. This occurred apparently because the new college was not offering a bachelor of information technology but rather a bachelor of information systems. The reasons for leaving the first course provider were unclear. The applicant said that he had completed certificates III and IV in automotive technology and that he is currently studying a diploma in automotive technology which he expects to complete in November 2020. He said that upon completion of the diploma he intends to return to India. The tribunal enquired why the applicant had enrolled in the bachelor of business course due to commence in November 2020. The applicant said that this enrolment was obtained after receipt of the notice of intention to consider cancelling his visa and obtained solely for the purposes of maintaining his visa condition. The applicant made it clear that the reason for not maintaining the required level of study was ignorance and attributed that ignorance to an unidentified education consultant. The Tribunal considers it was the applicant’s responsibility as the visa holder to be familiar with and comply 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

14. 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

15. 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

16. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the 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

17. 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

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

    Any other relevant matters

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

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

    DECISION

21. 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.