Singh (Migration)

[2019] AATA 5446

Singh (Migration) [2019] AATA 5446 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhmit Singh

CASE NUMBER:  1923515

HOME AFFAIRS REFERENCE(S):          BCC2019/3045954

MEMBER:Peter Booth

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2019 at 1:43pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – non-payment of fees – mother’s health condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 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 20 August 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 a genuine temporary entrant. 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 11 November 2019 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. 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:

   ·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).

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

8. The delegate’s decision dated 20 August 2019 found that the applicant was not enrolled in a registered course of study from 28 June 2018. In the hearing the applicant affirmed the correctness of this finding. 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

9. 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’.

10. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as those discussed under the following headings.

    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

11. The applicant gave evidence that he arrived in Australia for the purposes of studying a Bachelor of Business Management degree. There was no evidence that the applicant had a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

12. The applicant confirmed that he had not been enrolled as at 28 June 2018.

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

13. 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, 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

14. The applicant arrived in Australia in June 2014. He said that he was enrolled in a Bachelor of Business Management course which he started in August 2017. He said he went to classes for “six or seven months”. In answer to question from the Tribunal as to whether he abandoned the course or was excluded he said that he did not go to the course. He said that this occurred in about “April or May 2018”. The Tribunal pointed out that the decision of the delegate observed that his enrolment was cancelled on 28 June 2018 for non-payment of fees. The applicant confirmed this to be correct. The Tribunal asked the applicant why he did not attend his course. He said that he went to India. When he returned his mother was still ill and he said “she went into depression”. He said that this was in January 2018 and that he returned to Australia in March. Around that time he found that his mother was ill once again and that his father was also ill. He said that “I got into depression” and that “I paid a little bit of fees”, and that “I was getting sick as well”. He did not elaborate.

15. The Tribunal enquired whether the applicant had applied to defer payment of fees or to defer the course. The applicant said “I phoned them and asked for a deferral but I did not get a good response from them”. He did not elaborate. The Tribunal enquired whether the applicant had any documents showing that he applied for a deferral. He said “I was calling them on my brother’s phone”. He subsequently confirmed that he had no documents. The Tribunal enquired whether the applicant had any medical opinion evidence regarding his assertion of “depression”. He said “my brother and his wife supported me with my depression”, he added “I did not take any medication”. The Tribunal drew the applicant’s attention to a submission which had been provided to the Tribunal which is undated. The very short submission is broadly consistent with the applicant’s evidence. It also attaches a variety of medical test results of a technical nature which the Tribunal is unable to interpret. However the Tribunal does accept that the applicant’s mother and father had some issues in relation to their health. However the applicant confirmed that both his parents are currently alive. The Tribunal places little weight on the medical test results. The Tribunal was also provided with a letter of offer from Nova Institute of Technology dated 8 November 2019 offering the applicant a place in a Graduate Diploma of Management (learning) course. The letter of offer is not signed by the applicant. In answer to a question from the Tribunal the applicant said that he had completed it “on Friday”. This apparently was a reference to 7 November 2019. The applicant was invited to but could not produce a copy of the signed letter of offer. The applicant confirmed that he had not been studying since June 2018. The Tribunal enquired why he had enrolled in the course only a few days prior to the review hearing. He said that when his visa was cancelled he did not have study rights. The Tribunal observed that this did not prevent him from enrolling in the course albeit a few days ago. The applicant did not elaborate.

16. The applicant confirmed that the reason he was excluded from the course was for non-payment of fees. The applicant gave very little evidence as to why he did not pay the fees. He said that he paid “a little bit of fees” but did not elaborate. He next asserted that at the time he was depressed. However he produced no medical opinion evidence in support of the assertion and indeed confirmed that he had not taken any medication. The Tribunal does not accept the applicant’s assertion that he was suffering from depression at the time. Further the Tribunal notes that the applicant did not say he could not continue with the study of the course due to any such depression. The applicant also said that his parents were unwell at around this time. However he did not relate their health problems with being unable to study save that he said “I got into depression”. For the reasons given earlier the Tribunal does not accept that the applicant suffered from depression at all. It follows that the health of his parents cannot be a reason why he did not continue with the course. Lastly the applicant did not produce any documents to demonstrate that he sought and was refused a deferral of the course or a further opportunity to pay fees. Failure to provide such material on a critical point notwithstanding his assertions compels the conclusion that the assertions cannot be and are not accepted. Accordingly the Tribunal does not accept that the reason for non-payment of fees was beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the department

17. 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

18. 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

19. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences are 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

20. 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

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

    Any other relevant matters

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

    Conclusion

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

    DECISION

24. 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 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.