Singh (Migration)

[2019] AATA 5581

Singh (Migration) [2019] AATA 5581 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PARSHANT Singh

CASE NUMBER:  1806118

HOME AFFAIRS REFERENCE(S):          BCC2017/3296931

MEMBER:Mark O'Loughlin

DATE:3 December 2019

PLACE OF DECISION:  Adelaide

CISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 04 December 2019 at 12:21pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – unaware enrolment was cancelled – financial difficulties – non-payment of fees – mitigating factors – currently enrolled – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
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 2 March 2018 made by a delegate of the Minister for Home Affairs 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 had not complied with a condition of his visa and the grounds for cancelling the visa outweigh the reasons for not cancelling. 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 7 November 2019 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 set aside.

   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, a copy of which is attached, relevantly requires at 8202 (2) that the applicant be enrolled in a registered course, or in limited cases, a full time course of study or training.

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

9. The applicant told the tribunal, and the Tribunal accepts, that he received a notice of intention to consider cancellation of his visa in November 2017.

10. He further told the tribunal, and the Tribunal accepts, that he was not aware that his enrolment had been cancelled until that time.

11. The applicant gave evidence that he does now accept that his enrolment in a diploma of business at Elite Education was cancelled on 20 March 2017.

12. 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

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

14. The applicant had a complicated enrolment history having arrived in Australia on 26 October 2014 with an enrolment in advanced diploma of business management which he finished in December 2015.

15. He was intending to pursue business qualifications and said that he needs a Bachelor’s degree to get a good job in India.

16. The 1^st° he enrolled in, a Bachelor of Interactive Media did not suit him until after 6 months he swapped to do a diploma of accounting at Group Colleges Australia.

17. He understood that to meet the criteria for his visa he would need to obtain a CoE (confirmation of enrolment) in a Bachelor degree.

18. There was some confusion with that enrolment at so he obtained enrolment at Elite Education in a diploma of business accounting which started on 24 November 2016.

19. Due to the difficulties he had been having he did not start until 9 December 2016.

20. The applicant gave evidence that in February 2017 he was unable to pay his university fees because of his father’s financial difficulties and problems transferring money overseas from India.

21. The applicant entered into various discussions with the institution and says that those discussions spanned 30 March 2017 when Elite Education cancelled his CoE. He said that he was not advised that his CoE had been cancelled and indeed he had been discussing his financial difficulties with the college and had understood they were prepared to allow him to continue to study what he tried to sort those difficulties out.

22. This is supported by a copy of an email dated Monday, 19 June 2017 indicating that he had outstanding fees and that unless they were paid by 30 June 2017 Elite Education would cancelled his CoE.

23. There is also an email from a teacher at elite education dated 24^th of July 2017 addressed to various students including the applicant to remind them of the importance of attending the course and the risk to their CoE if they do not. Again, this evidence is consistent with the applicant’s evidence that he was not aware that his CoE had already been cancelled at that stage.

24. The applicant told the tribunal that his agent told him that he had 50 days to get a new CoE if his existing one is cancelled.

25. The applicant further told the tribunal that he did not ultimately pay the fees referred to an email of 19 June and the Tribunal acknowledges that it was unusual that Elite Education were continuing to do with the applicant nearly 4 months after his enrolment had been cancelled.

26. Having said that, the applicant admitted that he did understand that his enrolment had been a would be cancelled but was hoping that if he could pay by December he could still get his assessment for the diploma and start the degree the next year.

27. He said that in September 2017 he was pursuing a refund from Group Colleges Australia to help me his fees but he was unsuccessful.

28. He also said that elite education offered to give him a new CoE for the diploma the next year. His evidence was that this was not appealing because of his financial difficulties.

29. The Tribunal accepts that the applicant was not immediately aware that his enrolment had been cancelled. He says that he did not realise until November 2017. The Tribunal notes that he was well aware that he had not paid his course fees and that he would be liable to have his enrolment cancelled.

30. The Tribunal acknowledges that the emails of June and July 2017 did suggest that the applicant was still enrolled but the communications in relation to his non-payment of fees and the deadline the cancellation of his enrolment must suggested to him that there was a problem. His failure to investigate the status of this enrolment no doubt reflects a hopeful state of denial but does not provide the applicant with a reasonable excuse for not knowing the status of his enrolment from August 2017.

31. The applicant gave evidence that he has been enrolled in a Bachelor degree at the Australian Institute of Higher Education since March of this year and he expects to finish by the end of 2021.

32. As regards the applicant’s travel to and stay in Australia, there is nothing to suggest that the applicant has motivated other than by study.

33. The applicant’s failure to comply with his visa conditions is generally restricted to condition 8202.  His breach of this condition is important but the Tribunal notes that there are no other breaches evident and affords this consideration some weight in favour of the application.

34. The applicant gave evidence that if he is not allowed to continue his study he will suffer hardship because he will be too old to get a job with a company or with the Government in India.  There was nothing to corroborate that evidence.  He also said that he will be his parents’ sole support and they would be extremely disappointed if he returns without a degree.  Again, there was nothing to corroborate that evidence and in particular nothing from his parents. The Tribunal accords this consideration little weight in favour of the application.

35. The applicant also gave evidence that he wants to run his own business, but he said that to do that it would be best to get some experience first.  He gave evidence that he was almost 25 at the time of the hearing and that if he returns to India to do his study it will take 3 years at which point he may be too old to get a job. 

36. The Tribunal notes that there was about a year between the cancellation of the applicant’s visa in March 2018 and his return to study in March 2019.  The Tribunal accords the alleged hardships little weight in favour of the application.

37. The Tribunal notes that the circumstances in which the grounds of cancellation arose were a combination of confusion as to the state of his enrolment and unexpected difficulty in obtaining funds from his family in India.  The Tribunal finds that the cancellation of the applicant’s enrolment should have been apparent to him earlier than he says it was. 

38. The Tribunal notes that the applicant claims that the financial circumstances in which the ground of cancellation arose were outside the applicant’s control. Given that it is usually a condition of a student visa that the holder has adequate financial arrangements in place, the Tribunal does not accept that his failure to do so should properly be counted as a matter outside of his control.

39. The Tribunal accepts that the circumstances in which the ground of cancellation arose were challenging and accepts that he approached the education provider to try to resolve the issues well within time.  The Tribunal accords this factor some weight in favour of the application.

40. There is no suggestion or evidence that the ground of cancellation was related to a relationship breakdown.

41. There is no evidence that the cancellation of the applicant’s visa would result in the consequent cancellation of any other person’s visa under s.140 of the Act.  The Tribunal gives no weight in favour of the application by reason of this consideration.

42. There is no evidence of past or present behaviour of the visa holder towards the department that is of concern and the Tribunal accords this consideration a little weight in favour of the application.

43. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

44. He will need to apply for a bridging visa or a permanent visa to remain in Australia. If he is not granted a visa he and does not leave voluntarily he will become liable to detention under section 189 and to removal under section 198.

45. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be ineligible for the grant of another visa to Australia for 3 years after the cancellation of the Student visa.

46. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

47. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

48. The Tribunal has weighed the considerations set out above together and finds that the applicant has been careless in maintaining enrolment but there are mitigating circumstances for at least some of that carelessness. 

49. The Tribunal has concerns about the applicant’s apparent lack of commitment to relevant study but accepts that he is now enrolled in and studying a relevant Bachelor’s degree which he hopes to complete within about 12 months.

50. With some reservation the Tribunal accepts the applicant’s evidence that he intends to complete this qualification and return to India.  The Tribunal notes in particular the applicant’s evidence that there is some urgency to do so as he is approaching an age at which it may be difficult for him to pursue the career he had set on.

51. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

52. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark O'Loughlin
    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.