Singh (Migration)

[2019] AATA 5448

Singh (Migration) [2019] AATA 5448 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagandeep Singh

CASE NUMBER:  1927480

HOME AFFAIRS REFERENCE(S):         BCC2019/3200373

MEMBER:Dominic Triaca

DATE:26 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 November 2019 at 11:21am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – financial difficulties – car accident – father’s hospitalisation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 23 September 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2.The Applicant’s student visa was granted on 2 November 2018 with an original expiry date of 30 August 2021 providing for approximately 2 years and 10 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3.The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

4.The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would 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 had been 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.

5.The applicant appeared before the Tribunal at a hearing convened on 25 November 2019 to give evidence and present arguments.

6.For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.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 Breach Condition 8202?

8.Condition 8202(2)(b) of the Applicant’s visa requires that the Applicant maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. The Australian Qualifications Framework (‘AQF’) is the measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. AQF Level 1 (Certificate I) has the lowest complexity and AQF Level 10 (Doctoral Degree) has the highest complexity. The AQF is administered by the Department of Education and Training.[1]­

[1] See generally < applicant’s visa was originally granted on the basis that the applicant was enrolled in, and would successfully complete a Diploma of Business leading to a Bachelor of Business course. He arrived in Australia in November 2018 and enrolled at Latrobe College and was enrolled to follow the Diploma course with the Bachelor’s course at Latrobe University.

10.The Bachelor’s course sits at highest level of the courses which formed the basis of the Applicant’s student visa grant. Bachelor’s courses sit at AQF Level 7. As the delegate’s decision record notes, on 29 March 2019 his enrolment in the Bachelor’s course was cancelled by the course provider. The delegate’s decision notes further that on 22 January2019, the applicant enrolled in a Diploma of Building and Construction (Management) through a different course provider. This enrolment is at AQF Level 5 (Diploma).

11.The delegate’s findings in this respect were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[2] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

[2] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

12.The PRISMS report indicated that during the period 29 March 2019 to 23 September 2019, the Applicant was in continuous breach of his student visa for not being enrolled in an AQF Level 7 course or higher. That amounts to more than 5 months.

13.The Department of Home Affairs wrote to the Applicant by letter dated 15 August 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

14.The Applicant did not respond to the NOICC.

15.In his evidence before the Tribunal, the applicant confirmed that he was not enrolled in level 7 course or higher for the relevant period since 29 March 2019.

16.Accordingly, it seems reasonably clear that the applicant was in breach of his visa for the period of time identified by the delegate. On the evidence before the Tribunal, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

17.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’

Applicant’s Evidence and Circumstances of the Breach.

18.In his evidence before the Tribunal, the applicant‘s evidence was that he was unable to pay the fees at Latrobe as he was in financial difficulties in early 2019 and the lower level Diploma course at Gem College of International Business was significantly cheaper than the degree course he initially enrolled in.

19.He gave two reasons that led to his financial difficulties.

20.First, he stated that his father became ill with kidney stones and required hospitalisation in India in February 2019. After his father was released from hospital, he was readmitted due to an infection. He was on bed rest for a further period and unable to work. This effected the applicant, who was reliant on his family for financial support to some extent. The applicant provided a medical certificate in relation to his father’s illness.

21.Secondly, the applicant said he was involved in a car accident on 22 May 2019. He says that the accident occurred in Tarneit and he spent one day in hospital as a result. The applicant was charged by police with careless driving in relation to the accident and recently attended court where he was fined a small amount and required to undertake driver education which he has now completed.

22.The Tribunal accepts both the car accident and the hospitalisation of the applicant’s father occurred. The medical certificate provided by the applicant from Jeewan Hospital in India confirms that his father was hospitalised for the periods 2 to 7 February 2019 and 12 to 19 February 2019. He also required a further 4 weeks bed rest and antibiotics from 20 February 2019. The applicant provided a copy of the charge sheet and Magistrates’ Court Summons and showed the Tribunal photographs of his vehicle following the accident.

23.The difficulty for the applicant is that on a close inspection of the evidence, it appears quite clear that both these incidents occurred after the applicant had already enrolled in the lower level course on 22 January 2019. This indicates that the applicant had already enrolled in the lower level course before the financial difficulties arose. In these circumstances, the Tribunal is left without any sensible explanation for the applicant’s breach.

24.The Tribunal does not consider that the car accident, which occurred some months after the initial breach, contributed to the applicant’s inability to study at the higher level. The applicant reports that he spent “one day” in hospital following the accident. Whilst the Tribunal accepts that the accident, and being charged by the police with careless driving, would have been a stressful experience for him, it does not consider this explains the applicant’s breach of his visa conditions or his failure to take meaningful steps to resolve the situation thereafter.

25.In his written submission he stated that concern for his father caused him to have depression. There is no medical evidence to support the proposition that the applicant suffered from mental health issues and the Tribunal considers the evidence falls well short of establishing that the applicant suffered from a diagnosable mental health condition that caused or contributed to the breach. Further, this assertion suffers from the same problem as the applicant’s other explanation in the sense that the applicant‘s statement confirms his depression caused by his father’s illness occurred after the time the applicant had enrolled in a lower level course and decided to pursue painting and decorating.

26.The applicant’s evidence was that he has continued to study in the Diploma course and has found work as a painter. He has been attending his course twice a week prior to the cancellation of his student visa. The Tribunal asked whether he was able to provide any documentary evidence of his academic progress in this course but he was unable to do so. He states that he has passed and has completed about 50% of his course.

27.He says he hopes to go back to the Bachelor of Business in the future.

28.The Tribunal acknowledges the Applicant’s explanation as summarised above. However, his explanation does not amount to a satisfactory excuse for breaching his visa. It is not uncommon for a student visa holder to encounter financial issues whilst in Australia and such difficulties do not constitute a satisfactory excuse for de-prioritising the obligation to comply with essential conditions of the student visa. That means they must continue to remain enrolled and study in a course which is at the same AQF level as the course that formed the basis of the original grant.

29.In this case, the Tribunal considers the applicant made not realistic attempt to study at the level he intended to. He arrived in November of 2017 and by the end of January 2018 he had enrolled in the lower level course and his enrolment in the Bachelor level course was cancelled shortly thereafter.

30.The applicant stated that he was unaware of the requirement to maintain study at a certain level at the time of the breach. He stated that he did not become aware of this requirement until he spoke to an agent after the cancellation of the visa. Even if this were the case, the Tribunal does not consider it excuses the breach. The applicant was responsible for understanding the conditions of his student visa and ensuring he complied with those conditions throughout his stay in Australia.

31.In the end, the applicant has arrived in Australia and quickly taken a deliberate decision to downgrade his studies. As set out above, his reasons provided for doing so are illogical and the Tribunal is left without a sensible explanation for the breach.

Purpose of the visa holder’s travel and stay in Australia. Whether the visa holder has a compelling need to travel or remain in Australia.

32.The Tribunal accepts that upon his arrival in Australia, the applicant’s purpose was to study. However, this purpose quickly evolved and his purpose changed in early 2018 and study towards a Bachelors course was de-prioritised in favour of work and a lower level Diploma course.

33.Compelling and need are words of ordinary meaning. They are not defined in the PAM3 or s 116 of the Act. Crennan J, (then sitting in the Federal Court) considered the term compelling in some detail in Paduano v Minister for Immigration and Multicultural Affairs[3] and found compelling to mean ‘forceful and therefore convincing.’ Need is a relative concept. It plainly means more than ‘want’ but falls well short of ‘cannot survive without’.[4] Having regard to these authorities, the Tribunal does not consider the applicant has demonstrated any compelling need to remain in Australia and this weighs against the application.

[3] (2005) 143 FCR 244 [37] – [45]

[4] See Lord Neuberger of Abbotsbury in R (On the application of M) v Slough Borough Council [2008] WLR 1808 at [54]; Boettcher v Driscoll (2014) SASC 86 at 41 per David J

The extent of compliance with visa conditions

34.The Tribunal considers the applicant’s breach of the visa conditions was for a period of approximately 5 months. This is not a substantial period of time, but it is certainly sufficient time for the applicant to have taken meaningful steps to resolve the breach if he had wished to do so. It weighs towards cancelling the visa unless the Tribunal accepts his reasons for downgrading his studies.

35.The applicant gave two substantive reasons for the change in his enrolment. Due to the fact that the events stated occurred after the applicant had enrolled in the lower level course, the Tribunal does not find he has advanced compelling or convincing reasons for the breach and the Tribunal gives this some weight towards cancellation of the visa.

Hardship

36.The Tribunal has taken into account that, if his visa is cancelled, the Applicant’s hopes of obtaining an Australian qualification will be dashed. He stated that his family in India have expectations of him successfully obtaining an Australian qualification. A decision to cancel his visa will create significant disappointment for him and his family. He is concerned that returning to his home country without a degree will make it difficult for him to separate himself from people in his area that use drugs. The Tribunal gives this hardship some weight in favour of the applicant, however it does not consider the applicant’s evidence constitutes any significant level of hardship.

Whether there are mandatory legal consequences

37.The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

Past and present behaviour towards the Department;

38.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled

39.The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of Sri Lanka and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

40.Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

41.In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

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

DECISION

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

D Triaca
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.