Singh (Migration)

[2019] AATA 6751

Singh (Migration) [2019] AATA 6751 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhwinder Singh

CASE NUMBER:  1705034

HOME AFFAIRS REFERENCE(S):          BCC2016/2916367

MEMBER:Brian Camilleri

DATE:1 October 2019

PLACE OF DECISION:  Sydney

DECISION: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 01 October 2019 at 3:49pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – enrolment in the higher education sector – consideration of discretion – health issues – genuine intention to study – erroneous understanding of visa conditions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116 (1) (b) on the basis that the holder had breached condition 8516 attached to the visa. 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 for hearing before the Tribunal on 22 March 2019 to give evidence. The applicant spoke fluent English without an interpreter. The applicant had received a copy of the delegate’s Decision Record of 8 March 2017 and had it with him at the hearing. The Tribunal had at its disposal a copy of the Decision Record of 8 March 2017 available on the Departmental file. The applicant was provided at the hearing with a copy of the PRISMS record (Provider Registration and Information Management Systems).

4. 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

1. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Whether there is a ground for cancellation

2. The applicant was granted a student visa from 17 June 2014 until 18 March 2018 and as at the date of the hearing of the review (22 March 2019) the visa would have already expired in the usual course almost exactly a year ago (had not the Delegate cancelled the visa on 8 March 2017).

3. Condition 8516 attached to the applicant’s visa requires that the holder must continue to be a person who would satisfy the primary or secondary criteria as the case requires, for the grant of the visa.

4. On 17 June 2014 the applicant satisfied the primary criteria for a class TU-573 Higher Education Sector visa (‘student visa’). The criteria for the grant of this visa required him to meet among other criteria, the provisions subclause 573.231 or subclause 573.223 (1A). The delegate was satisfied that on 17 June 2014 that the applicant met the requirements of subclauses 573. 223 (1A) and granted the TU – 573 student visa with condition 8516 attached.

5. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while holding the visa: Singh v MIBP [2016] FCA 679.

6. The definition of ‘eligible higher degree student’ requires that the applicant be enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, (for visa applications made on or after 23 November 2014), an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 14/007.

7. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

8. At the time of the cancellation of the applicants TU – 573 student visa on 8 March 2017 the applicant was not enrolled in a bachelors or master’s degree and was not enrolled in a course of study that was a principle course of a type specified for Subclass 573 visa authorised by the Minister in an instrument made under regulation 1.40 A and had not continued to be a person satisfying either subclauses 573.231 or 573.223 (1 A). As such the applicant no longer satisfied the primary criteria for the grant of the visa and had not complied with condition 8516. This was apparent from the PRISMS record and supported by the applicant’s evidence.

   Consideration of discretion and conclusions

9. The Tribunal is satisfied that the ground for cancellation in s.116 (1) (b) exists. But that as that provision does not require mandatory cancellation under s.116 (3), the Tribunal must still proceed to consider whether the visa should be cancelled.

10. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has therefore 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’.

11. The applicant did not receive any Notice of Intention to Consider Cancellation (NOICC) (15 Feb 2017) as it was sent to his former address. The delegate of the Minister proceeded to make a decision in the absence of any submissions from the visa holder in response to the Notice of Intention to Consider Cancellation NOICC.

1. His first notification (received after the event of cancellation) was to the effect that the visa had been cancelled. The applicant appealed to the Tribunal for review of the decision to cancel his visa.

2. The Tribunal forwarded the applicant a letter dated 2 March 2019 inviting him to make any additional submissions prior to the hearing. The applicant responded on 18 March 2019 via his migration agent in written submissions.

   History prior to and after arrival in Australia

3. Prior to arriving in Australia in June 2014 the Applicant enrolled in courses at the University of Canberra namely:

   (a)   UC English Language Programs [059330F] (13/10/2014 – 19/12/2014);

   (b)   Diploma of Business (extended) [070211J] (2/03/2016 – 29/01/2016;

   (c)   Bachelor of Business Administration [025564B] (15/02/2016 – 31/12/2017).

4. The Tribunal accepts the evidence of the applicant that his failure to pass the initial English Language Program at the University was due to homesickness and an inability to concentrate on his studies. He was at the time 21 years old and had no friends or associates in Canberra. He applied (and was granted) for an extension to complete the English Language Program.

5. The Tribunal accepts the evidence of the applicant that his ill health lasted a considerable period during 2015 and 2016 as was reflected in his own actions and movements. He did not any advance medical evidence (as such) of his condition but his application for deferment and his relocation to Sydney corroborates there were significant factors at work which disrupted his original plans to complete Bachelor level courses at the University of Canberra. The Applicant mistakenly believed he could work his way through his illness (which was only successful after prolonged period).

6. The extension of the English course led to an amendment of the university course timetables as follows: (a) UC English Language Programs [059330F] from 11 May 2015 to 2 October 2015; (b) Diploma of Business (extended) [070211K] from 26 October 2015 to 27 May 2015; (c) A Bachelor of Business Administration [025564B] from 8 August 2016 to 30 June 2018.

7. According to the applicant’s submissions, the extension of the timetable given for completion of the above courses did not allow sufficient time to enable the applicant to overcome his ill health.

8. The Tribunal accepts the evidence of the applicant that his isolation and loneliness as well as the absence of his family and friends were sufficiently severe that he could not function or study properly.

9. The severe disruption to the applicant’s health (both before and after his back injury) is consistent with his application for release from the University of Canberra to enable him to move to Sydney where he believed he would have more support from compatriots in the large Indian community living there.

10. According to the applicant’s submissions he requested release from studies. This application was received by the University of Canberra on 20 March 2015. The University responded by requesting the applicant to provide further information supporting his request and indicated that in the meantime he should continue studying at the University until a decision was made on his request for a release.  The fact that the University required him to continue study in the interim shows it did not take account of his then current health issues which were preventing him for studying.

11. The applicant again enrolled in an English-language program from May 2015 period and submitted his assignments. He was later informed that he had passed his requirements for the English Language Program.

12. According to the applicant’s submissions, in late July 2015 (whilst still living in Canberra) he suffered a back injury which resulted in debilitating pain leaving him unable to study or do anything without emotional and practical physical support.

13. According to the applicant’s submissions, he visited Sydney and during this visit consulted Dr Jasvinder Kheray of the Glenwood Medical Centre Sydney. He was advised to take rest from 27 July 2015 to 28 August 2015. His health improved and he concluded that as there was more support for him in Sydney that he should move there. He was favoured in Sydney by a large community of students from his homeland that collaborated both academically and socially and which reduced his isolation and homesickness. He moved to Sydney to help him recover and enable him to resume his studies. The Tribunal accepts the applicants evidence that both the existence of this injury and its severity and as being contributing factors as to why he could not persist with his course of study.

14. In Sydney, the applicant contacted the Australian International English Language College (AIEL). After a meeting with an education counsellor from the college the applicant was offered admission to a package of courses that appeared to the applicant to be very similar to his studies originally enrolled for at University of Canberra namely:

    (a) Certificate High IV in Marketing [087106D] (9/11/2015 - 6/11/2016);
    (b) Diploma of Marketing [087406C] (7/11/2016 - 5/11/2017);
    (c) Advanced Diploma of Marketing [087575G] – (6/11/2017 - 4/11/2018).

15. The applicant by enrolling with the AILS did not continue to be an eligible higher education holder nor continue to be enrolled in or a subject of a current offer of enrolment in, a principal course specified in an instrument under r.1.40A inforce at the time the application was made.

16. The Tribunal accepts the applicant’s evidence that he was not aware or alert to the fact that some educational institutions which offered well named courses did not necessarily mean that those qualified under the terms of his student visa.

17. The Tribunal accepts the applicant’s evidence that the counsellor at the education provider was provided with a copy of the visa and that the applicant (nor it seems the counsellor) realised that the courses he was enrolling for were not recognised as courses from an institution qualifying under his visa requirements and they (both) did not realise there was any issue arising. It is noted that education counsellors and education provides are not migration agents and are neither qualified nor responsible to proffer such advice. At all times it is the responsibility of the applicant to remain properly informed and in compliance with the conditions attached to the visa.

18. According to the applicant’s submissions, having gained access to a new college in Sydney, he did not inform the University of Canberra about his decision to relocate to Sydney and assumed this was sufficient. So far as the University of Canberra was concerned it appears the matter was left on the basis of it waiting for further information from the applicant in order to further consider his request for a release.

19. The Tribunal accepts the applicant’s evidence that in November 2015, he started studying at AIEL in Sydney, attending classes and submitting assignments towards achieving a Certificate IV and Diploma in Marketing and he was still labouring under the belief that his course and the institution he was attending were compliant with his visa conditions. The Tribunal notes however that it is the student’s obligation to be familiar with his visa conditions and he bares the onus of ensuring he is complying with those conditions.

20. The applicant submits that because of incorrect dates of birth (indicated on the certificates of enrolment issued by the University of Canberra) and the correct dates of birth (indicated by the certificates of enrolment issued by the college in Sydney) there were two separate records created in the PRISMS system. This appears to have been resolved and the PRISMS records now merged and available to the Tribunal and the applicant at the hearing.

21. The Tribunal accepts the applicant’s evidence that he was surprised when, on 9 February 2017, he received an email (addressed to his personal Gmail address) from Department’s (DIAC’s) General Cancellations Unit requesting him to update his contact details.

22. The Tribunal accepts the applicant’s evidence that the email sent to him directly by the Department made him suspicious that it might be a scam ( fishing) and that therefore he did not respond directly but in a circuitous fashion which evaded providing the information requested of him (which was the very information needed by the department to communicate with him). The Tribunal accepts that, his reasoning was (wrongly) fortified by the fact that he had already provided his contact details to AILS and by his belief (incorrect) that he was enrolled in courses qualifying appropriately under his visa conditions.

23. According to the applicant’s submissions he did not receive any further requests (addressed to his personal Gmail address) from the Department (DIAC) to update his contact details. He continued with his studies in Sydney making sure he was completing his course requirements. The Tribunal accepts that he continued studying at AILS unaware that his actions had already breached his visa conditions. He also believed that his continuing to study at AILS was sufficient compliance with the conditions his visa.

24. According to the applicant’s submissions, he subsequently, on 14 March 2017, received an email (addressed to his personal Gmail) from the University of Canberra advising him that his visa had been cancelled on 10 March 2017.

25. The Tribunal accepts that the applicant believed that he had been released from the University of Canberra once he obtained his certificate of enrolment from the Australian International Language College but the grounds for this assumption seem very tenuous. These assumptions and factors were of course untenable and they came together in the eventual cancellation of his student visa by the department but Tribunal considers matters were out of his control namely: his prolonged illness (both before and after his back injury) and the stressful concern for his father

26. Then AILS informed him he could not continue attending courses as his visa was cancelled. Having been informed that his visa had been cancelled the applicant applied for review by the Tribunal. Over 2 years have elapsed before his application could be heard before the Tribunal.

27. There were other matters that negatively impacted the applicant’s health and which were outside his control. In May 2017 his father suffered a serious heart attack requiring hospitalisation. (A corroborating medical certificate relevant to his father’s health was produced at the hearing). The Tribunal accepts the applicant’s evidence that as the eldest child of the family he felt distressed at not being able to return to India because of his student visa cancellation and whilst waiting for the review.

28. The evidence of the applicant was that from March 2017 onwards, he was supported in Australia by friends with boarding/lodging and that he found it hard to secure any employment. To support his stay in Australia whilst trying to find admission to an educational institution) the applicant started working as an Uber Eats or Uber X driver.

29. The applicant’s father runs a jewellery business (a sole trader) and is prosperous.

30. The Tribunal accepts the applicant’s evidence that he is not in Australia to earn better wages than would be available in India (at least to him). The Tribunal finds the applicant to be credible and accepts his evidence that his sole purpose of remaining in Australia since being informed of the cancellation of his visa has been to await the review by the Tribunal.

31. The Tribunal accepts the applicant’s evidence that the applicant tried to obtain admission at different colleges and universities in Sydney but due to his visa cancellation these efforts were futile.

    In November 2018 the applicant managed to gain admission to Trinity College, Sydney and he completed a Certificate I in Marketing and Communication. The applicant gave evidence that digital marketing is a sought after skill in India and he perceived marketing skills derived from this course as a relevant skill in the family business. The Tribunal finds the applicant to be credible and accepts his evidence that his intention to the Tribunal that if the issues relating to his visa status are resolved and he is allowed to further remain in Australia he will complete his Bachelor in Marketing and then return to India. The Tribunal notes that throughout the period prior to the decision cancelling his visa that he was consistently studying (save when sick) and when he resumed studying (after his illness and injury had passed) he genuinely believed he was in compliance.  Throughout the hearing and the interrogation of the applicant by the Tribunal the applicant presented as a truthful and credible witness and provided information spontaneously and consistently.

    Past and present behaviour towards department

32. The applicant has been cooperative with the department. His explanation for not providing information when initially requested to respond to the NOICC in March of 2017 has now been adequately explained in his written submissions to the Tribunal of 18 March 2019. The Tribunals favourable acceptance to this explanation is provided at paragraphs 36-39 inclusive of this Decision Record.

33. The Tribunal finds that the applicant was genuine in his purpose of travel to Australian to obtain a higher degree and stay in Australia and that his lengthy stay in Australia subsequent to filing his application for review was the result of long lag period in the hearing list of the Tribunal.

34. The delegate did not have before him the applicant’s submissions explaining why the breaches of the visa involved circumstances out of the visa holder’s control.

1. The circumstances outlined above would (if the decision to cancel the visa were to be affirmed) result in considerable hardship for the applicant in the sense of wasted expense, time and loss of opportunity a higher  degree for which he aspires would provide.. In the circumstances in which cancellation arose it is not apparent to the Tribunal that the visa holder had abandoned his plans to seek higher education and was had any ulterior motive trying to game the system to milk out the longest stay possible in Australia. This is supported by the fact that according to the applicant’s evidence his family (in India) reasonably placed financially.

2. At no stage does a financial motive (as against studying) appeared to play a role for departing from the terms of his student visa. The applicant’s father is a jeweller and the applicant and his family it appears are financially stable.

3. The applicant’s struggle with English comprehension on his arrival in Australia has been overcome and he could easily converse in the review hearing without the benefit of an interpreter.

   The applicant’s past and present behaviour towards the department

4. The applicant has been cooperative in providing information to the department when requested of him. There is no evidence to indicate he has not complied with previous visa conditions or that he has not been co-operative with the Department. This weighs against cancelling the visa.

5. Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

6. There are no secondary visa holders dependent whose visas may be cancelled as a consequence of a cancellation of the applicant’s visa. Any cancellation of the applicant’s student visa would not result in the automatic consequential cancellation of any visa by operation of law under section 140 of the Act, of the visa of any other person. I give this matter no weight in my consideration of the discretion.

   Legal consequences of a decision to cancel a visa

7. If the visa was to be cancelled this would bring about the consequence that the applicant would become an unlawful non-citizen and liable to detention under s 189 and removal under s198 of the Migration Act 1958 (if he did not voluntarily depart Australia). In addition, the effect of section 48 of the Act would result in the applicant having very limited options to apply for further visas in Australia and would need to depart Australia and apply from overseas to pursue most types of further (other) visa applications. The Tribunal has given weight to these considerations in the visa holder's favour and against cancellation.

8. If the visa was to be cancelled the applicant will incur a penalty in the sense that if the applicant has lodged a new temporary visa application then the applicant is required to meet Public Interest Requirement 4013, and that new temporary visa application may not be approved for a further period of the next three years. I have given weight to these considerations in the visa holder's favour and against cancellation.

9. If the visa is to be cancelled then the applicant (as a citizen of India holding a travel document enabling him to return to India upon departing from Australia) is able to depart. The statutory consequences of a visa cancelled under such grounds are that:

   ·If the TU-573 Higher Education Sector visa is cancelled, the applicant will not necessarily be immediately removed from Australia.

   ·The applicant would be eligible to apply for a Bridging Visa E to allow him reasonable time to arrange to depart Australia.

   ·Whilst a failure to depart Australia could nevertheless ultimately result in detention or removal action, it is not an inevitable consequence of any decision to cancel of the applicant’s TU-573 Higher Education Sector visa. Cancellation of the visa would not result in indefinite detention

   ·There is no evidence that a cancellation would impact on any victims of family violence.

10. The applicant was granted a student visa from 17 June 2014 until 18 March 2018 and as at the date of the hearing of the review (22 March 2019) the visa would have already expired in the usual course almost exactly a year prior to the review hearing (had not the Delegate cancelled the visa on 8 March 2017). Therefore even setting aside the decision to cancel the higher education student visa does not revive the original visa and application for another visa in the event of the delegates decision being set aside, is now a matter for the applicant and the department and the obtaining an appropriate certificate of enrolment and another visa.

    Whether Australia has international obligations that would or may be breached as a result of cancelling the applicant’s student visa

11. The Tribunal considered whether Australia has international obligations that would (or may) be breached as a result of cancelling the applicant’s student visa and finds that cancellation of the applicant’s student visa would not result in engaging Australia's international obligations.

    Are there children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation?

12. There are no children whose interests need to be taken into account.

    Does cancellation lead to removal in breach of Australian's non refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment?

13. The applicant has not made claims of being in need of protection nor has he applied for protection. There is no matter or claim before the Tribunal to suggest that his removal, if considered necessary, would lead to a breach of Australia's non-refoulement obligations.

    Other relevant factors assessed

14. Having considered the evidence and all factors identified above, the Tribunal is satisfied it has considered all the relevant additional factors.

    DECISION

15. The Tribunal is satisfied that the factors against cancelling the visa Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa of Mr. SUKHWINDER SINGH outweigh the factors in favour of cancelling the visa. Considering the circumstances as a whole the Tribunal concludes that the visa should not be cancelled.

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

    Brian Camilleri

    Member