Singh (Migration)

Singh (Migration) [2019] AATA 5996 (11 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rajbir Singh
CASE NUMBER:  1714862
HOME AFFAIRS REFERENCE(S):          bcc2017/1478924
MEMBER:Mark Bishop
DATE:11 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 11 September 2019 at 12:34pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Information Technology – not enrolled in registered course for 14 months – mental health issues – illness in family – financial difficulties – partner visa application indicates primary intention of being in Australia no longer study – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 5 July 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(1)(b) of the Migration Act 1958 (the Act).
The applicant appeared before the Tribunal on 11 September 2019 to give evidence and present arguments. The applicant’s wife also gave evidence.
The applicant provided a copy of the decision record to the Tribunal.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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?
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 registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant was notified of the intention to consider cancellation (NOICC) on 29 May 2017 and the notice invited the applicant to respond in writing. The applicant responded on 5 and 12 June 2017. The delegate made a finding that as at 5 July 2017 “…based on the evidence available before the Department, Rajbir SINGH has not been enrolled in a registered course of study since 6 April 2016”. In response to his non-enrolment status the delegate made a finding”… the applicant agreed that he was not enrolled in a registered course since 6 April 2016”.
The applicant advised the Department that the circumstances leading to the ground for cancellation were exceptional and beyond his control. He listed these circumstances as follows:
·A depressive mental state as a result of his wife’s and father’s health conditions. The delegate gave some weight to this consideration in favour of the applicant;
·Insufficient funds to continue his studies. The delegate gave this consideration no weight in his favour;
·The applicant lodged a Partner visa application in March 2016. The delegate gave this consideration no weight in his favour.
The delegate provided detailed reasons for his conclusions as outlined in paragraph 10 above (Tf: 9).
The delegate made a finding that according to PRISMS the applicant had not been enrolled in a full time registered course of study from 6 April 2016 (Tf: 11).
The Tribunal asked the applicant to comment on the finding as summarised in paragraph 12 above. The applicant advised it was correct he had not been enrolled in a registered course in that time.
Having regard to the findings of the delegate as outlined in paragraph 12 above, the Tribunal finds that the applicant had not been enrolled in a full time registered course of study from 6 April 2016. The Tribunal finds that he breached condition 8202(2)(a) of his visa.
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).
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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’
Consideration of discretion
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’.
The delegate’s decision contained a comprehensive summary of prior matters. The applicant made express reference to this decision in his written submission as outlined in paragraph 20 below.
The applicant provided a written submission to the Tribunal dated 9 September 2019. It outlined the following:
·He requested the visa not be cancelled;
·He had reviewed the relevant FOI documents with his advisor provided to him by the Tribunal;
·He was dissatisfied with the services provided by his previously retained law firm;
·He had not been aware his then solicitor lodged the application for review;
·He has been a genuine student in the past;
·He completed a Certificate III in English Language in December 2014, finished a Certificate IV in Accounting in June 2015 and then enrolled in further courses to improve [his] English and then March 2016 for further studies leading to a Bachelor of Commerce. In evidence the applicant advised he completed one semester but did not complete the course;
·But due to other compassionate and compelling circumstances outside of [his] control – discussed in detail in the department's cancellation decision record – [he] simply could not continue;
·If his student visa is reinstated by the Tribunal he will obtain a new Confirmation of enrolment (COE).
The applicant inquired if the above submission had been received by the Tribunal. The Tribunal confirmed it had and read back to the applicant a summary of the submission as outlined in paragraph 20 above. The applicant advised the Tribunal the submission reflected his instructions.
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
The applicant came to Australia in October 2014 for the purposes of study. In evidence the applicant advised he came to Australia to study.
The applicant provided a submission to the Department that stated the circumstances leading to his cancelation were exceptional and beyond his control. He referred to relevant case law.
In July 2015 his wife was diagnosed with demyelination which caused severe nerve damage for which she required immediate medical treatment. From that point on the applicant assisted his wife with her medical expenses and took care of house hold needs. He lost focus on his studies. Studies became secondary. His father became ill and could no longer fund his studies. His father passed away in July 2016. He became depressed and dejected. The delegate gave some weight to his wife’s depressive condition in favour of the applicant.
The applicant did not provide any evidence of capacity to pay for course fees, travel and living costs in Australia (as required to satisfy eligibility criteria for the grant of his then visa). The delegate made a finding in the absence of evidence of funding the applicant did not have a means to return to study and as such gave this factor no weight in the applicant’s favour.
The delegate made a finding the applicant lodged a Partner visa application in March 2016 that indicated his primary intention of being in Australia was no longer study. The delegate noted the applicant’s response to the NOICC wherein he stated that the wellbeing of his wife and family has taken priority to him attending classes.
The delegate made a finding the applicant’s purpose for being in Australia was for reasons other than to study.
The delegate gave more weight to the fact that the applicant had not been enrolled in a registered course for more than 14 months since 6 April 2016 and remained non-enrolled as at 5 July 2017.
The delegate made a finding the applicant had not been enrolled in a registered course for more than 14 months from April 2016 and remained non-enrolled at the date of the decision (5 July 2017).
The Tribunal asked the applicant to address his compelling need to remain in Australia.
The applicant advised he was married on 30 October 2015. The applicant advised his wife had a son, Taj, from a prior marriage. He has supported her emotionally and in other ways for four years. Her son sees him as his father. The child’s father is seeking shared custody. His wife is opposing that application. His wife remains tense as to the possible return to India of the applicant. The current case affects the ability of the couple to have their own child as there is a possibility the applicant may return to India. The couple is living together. They have lived together since marriage. The child’s birthday is 2 January 2012. The child attends Henderson College, Mildura and is in grade 2. The child is an Australian citizen. Both biological parents of the child are Australian citizens.
The applicant applied for a partner visa in 2016. The applicant advised his application for a partner visa failed. He said his then Migration Agent did not present a proper case. The applicant advised a further application had not been lodged as yet. The applicant lives in Buronga, NSW, near Mildura. The applicant works in NSW as a farm labourer. He advised the Tribunal he works full time as a farm labourer. The applicant’s wife works full time as a kindergarten teacher.
On 29 July 2017 the applicant received a call from Taj’s school and the school advised that Taj’s biological father was angry and may come to the home of Taj. The child was at home. The applicant looks after his wife’s son. The child and the applicant were at home together. The child’s biological father entered the applicant’s home without consent. The child’s father was arrested by the police. The applicant advised he was not able to provide any documentation in relation to police matters arising out of the alleged event. The applicant advised a video recording was available at home. The Tribunal advised the applicant in the hearing it accepted as truthful his outline of the events.
The applicant advised there had been a prior domestic violence event in 2014 (when Taj was 2 years of age) involving his wife and her former husband. That even occurred at a time prior to meeting his wife as the applicant first met his wife in July 2015.
His wife and his wife’s child are the most important people in his life. The family wishes to move to Adelaide to live in that city. The applicant advised the Tribunal he did not wish to make any further submissions on the point of compelling need.
The Tribunal read back each sentence in paragraphs 30 to 35 above. The applicant listened attentively and in response advised each sentence that had been read out was correct.
The Tribunal notes the applicant’s wife gave evidence her former husband was the subject of an AVO and there had not been a repeat of the prior incident. The Tribunal regards the prior incident as a serious matter and gives it a little weight.
The extent of compliance with visa conditions
There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant to address the degree of hardship that might be caused by the cancellation of his student visa. The applicant advised if the visa is cancelled it affects his entire future. It is not good for his wife and child. It puts a black mark on his file or on his application. The applicant advised his family was important to him and he does not want them to suffer. The applicant did not advise of hardship except as outlined in the foregoing sentences.
The Tribunal accepts that if the applicant has to return to India there will be significant disruption to his family life and income in Australia. It is clear the applicant has built a life for himself in Australia as a husband, carer, parent and provider. It is clear a forced separation (even if temporary) will be unsettling and a challenge. It is also clear the applicant has taken only tentative steps to lawfully achieve residence in Australia. At any time since late 2017 the applicant has had the opportunity to address deficiencies (whether of his own making or those of his then legal representation) in a prior application for a partner visa by making a new application to the Department. There is little evidence before the Tribunal the applicant has chosen to go down this path and proceed to lodge the relevant application to the Department. Accordingly the hardship that might be experienced by the applicant is a direct and inevitable consequence of decisions he had made or not made. The Tribunal does not give any weight to this consideration in favour of the applicant.
Circumstances in which ground of cancellation arose
The circumstances in which the ground of cancellation arose are outlined paragraphs 10 and 11 above. Except as summarised in this decision neither the applicant nor his wife gave evidence as to matters outlined in paragraph 10 above.
Past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.
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
The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled. The applicant did not advise the Tribunal as to conditions attached to his current visa. Both he and his wife advised the Tribunal they had retained a firm of immigration lawyers, saw the firm sometime in 2018 and provided relevant documentation as to their marriage. The Tribunal asked the applicant and his wife separately if a further application had been lodged for a partner visa. Neither the applicant nor his wife was able to provide an answer to the Tribunal. They both thought the lawyers were taking care of that. The applicant has not presented any evidence to the Tribunal that suggests he might be barred from making an application onshore for a partner visa. The applicant has the option of making application to the Department for a partner visa.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.
Whether any international obligations would be breached as a result of the cancellation
There is nothing before the Tribunal to indicate there are international obligations to consider.
Any other relevant matters
The applicant’s wife advised the couple belonged together. He is a good husband and father. Mrs Singh advised she was an Australian citizen. Her son was born in Australia to a Australian citizen. Mrs Singh advised her husband worked full time. He needs the services that are available in a larger city. The applicant’s brother lives in Adelaide. Mrs Singh was not aware of the detail of any application for a partner visa although she advised she and the applicant saw an immigration lawyer sometime in 2018. Mrs Singh advised she had a current AVO against her former husband and there had not been a repeat of the events in 2017 (as outlined in paragraph 33 above). Mrs Singh wished everything could go back to normal and remain as a family in Mildura. Mrs Singh did not provide any detail to the Tribunal as to a possible application for joint custody of her son by her former husband. The applicant advised the above evidence was correct. The Tribunal gives a little weight to the prior incident as summarised at paragraph 33 above.
The Tribunal read back all of the evidence, sentence by sentence, of both the applicant and his wife. Both agreed the notes of the Tribunal were correct.
The applicant advised upon return he was working as a full time farm labourer in NSW.
The applicant advised he was satisfied with the interpreter service provide at the hearing today. He advised he was fully satisfied and thanked the Tribunal.
At the conclusion of the hearing the applicant advised the Tribunal his solicitors had requested a copy of the audio tape of the hearing. The Tribunal advised the applicant to speak to the registry immediately after the conclusion of the hearing and advise them of his request.
Whilst the Tribunal is not unsympathetic to the applicant’s wish to continue residency in Australia with his family in Australia, there is only limited evidence before the Tribunal to indicate the applicant has sought assistance and guidance to lodge a possible partner application to the Department. In a written submission to the Tribunal the applicant advised he would seek a COE if he was granted a student visa. He did not otherwise address obligations that might ordinarily be expected of the holder of a student visa. The applicant was sincere in expressing his concern about the emotional affect a visa cancellation would have on him and his family. The Tribunal has given careful consideration to this aspect and has also considered the opportunities that may have been available to the applicant to mitigate these concerns.
The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa and that a breach in excess of 12 months is significant in the context of a student’s study period

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Student (temporary) (class TU) Student (subclass 500) visa
Mark Bishop
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.

[2019] AATA 5996

11 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction