SINGH (Migration)

[2019] AATA 5568

SINGH (Migration) [2019] AATA 5568 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAGMOHAN SINGH

CASE NUMBER:  1704418

HOME AFFAIRS REFERENCE(S):          BCC2017/319596

MEMBER:Brian Camilleri

DATE:29 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 August 2019 at 3:40pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – applicant’s difficulty passing foundational English subjects – applicant completed vocational course – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.111, 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 2 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant appeared before the Tribunal on13 March 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116 (1) (b). 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.

   Does the ground for cancellation exist?

4. A visa may be cancelled under s.116 (1) (b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa.

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 they hold the visa: Singh v MIBP [2016] FCA 679.

6. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant comply with cl.573.231 if not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

7. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters 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.

8. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible providers for this visa was IMMI 15/20.

9. 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.

10. The meaning of “eligible higher education student “is defined in cl.573.111. The applicant is not now an eligible higher education student and is not enrolled in, or the subject of a current offer of enrolment in a principal course specified in an instrument in force at the time of the application.

11. The applicant says that he was not aware there were conditions attached to his visa and his application was dealt with by an agent who did not communicate these facts. He also says that when he changed courses he was not aware that there were any conditions on what courses he could elect when changing an enrolment.

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

    Consideration of discretion

13. 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 purpose of the applicant’s travel to and stay in Australia

14. In his response to the Department’s Notice of Intention to Consider Cancellation (NOICC) (14 February 2017) the applicant stated that his inability to pass the required foundational English subjects prevented him from admission to his degree. He remained without enrolment at the required level right up to the time of cancellation of his visa on 2 March 2017. I give this matter weight in favour of cancelling the visa in my consideration of the discretion.

15. The applicant was handed a copy of an up to date PRISM record of his studies in Australia at the commencement of the hearing.  He was also had in his possession a copy of the Decision Record of the delegate. The first course he enrolled in was English for Academic Purposes at the Sydney College of English- he finished (i.e. attended) the course but did not pass the course. He says he was sick at the time. He did not re-enrol for this course but he was advised he could take a Bachelor of Business without passing his English Courses. He was advised that English was not a pre-requirement for a Diploma. But later he was advised that that he could not commence the Diploma of Business as he did not have the pre-requisite English competencies. He was then advised that application should be made to another college. He re-enrolled in English but then received the notification of cancellation of his visa. He then did not continue to study any course.

16. This was a significant departure from the purpose for which is visa was granted, notably, the intended level of study contemplated by the visa. I give this matter weight in favour of cancelling the visa in my consideration of the discretion. In the event of cancellation of his visa the applicant is eligible to apply for a Bridging Visa E to allow him to continue to lawfully remain in Australia for a period to finalise any outstanding matters.

17. At the hearing before the Tribunal the applicant produced a letter dated 22 December 2017 from the Australian Education & Learning Institute (AELI) which concluded that the Applicant had supplied AELI “with valid, authentic and sufficient evidence, along with the completed Recognised Prior Learning (PRL) kit which was then assessed by our trainer through our RPL method. “ This letter further stated that the applicant had “been deemed competent in the units of competency listed on their Statement of Attainment and has satisfied the requirements for the qualification of BSB51915 Diploma of Leadership and Management.” However, the applicant says he did not complete this Diploma course. I give this matter weight against cancelling the visa in my consideration of the discretion.

18. He also produced a certificate of the Sydney College of English certifying that the applicant had completed a course of intensive English from 2 November 2015 and 22 January 2016 (but this had been insufficient to satisfy his pre-qualification English competency requirements for his intended course). I give this matter weight in favour of cancelling the visa in my consideration of the discretion.

19. The Tribunal finds that the applicant having failed to demonstrate any effective compliance with the requirements of enrolment the applicant has no compelling need to travel to or remain in Australia.

    The extent of the applicant’s compliance with any conditions subject to which the visa was granted

20. Information before the delegate of the Minister at the time of the cancellation of the visa on 2 March 2017 established that the applicant had not held enrolment in a course of study specified for his visa since 6 April 2016. While he obtained enrolment at the required level (CEO 8A5 80BE93) on 24 February 2017, he did so in response to a NOICC issued to him by the department on 14 February 2017 and a lengthy period had elapsed since he held enrolment at the level required by his visa.

21. After cancellation of the visa on 2 March 2017 the applicant did not continue with further studies as he considered that the cancellation of his student visa did not enable him to continue with the course he had enrolled. As at the date of the hearing before the Tribunal the situation has not changed. I give this matter weight in favour of cancelling the visa in my consideration of the discretion.

    The degree of hardship that may be caused to the applicant or his family members

22. The applicant did not raise any specific instances of hardship in his response to the notice of intention to consider cancellation (NOICC). He further did not provide information as to any hardship accruing to his family if the visa was cancelled. In the hearing for review before the Tribunal, the applicant explained that he came from a small village. Both his parents and grandparents are alive. He has one sister. He has never married and has no children. His sole friend in Australia is the person with whom he currently shares accommodation.

23. He explained that if he returned to India without any qualification having been gained that he would have “no future”. The applicant’s father operates a single truck transport business in rural India. The hardship therefore that will be caused by the cancellation of his visa his personal to the applicant and by implication this means that he expects he will not be able to rise above his present financial status and circumstance in India. He further expects that his family (parents and sister) will not be able to rise above their financial circumstances in India. Some hardship may be caused to family member should the visa be cancelled and the applicant be required to depart Australia. I give this matter weight in favour of cancelling the visa.

    The applicant’s past and present behaviour towards the department.

24. 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.

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

25. 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 by operation of law under section 140 of the Act, of the visa of any other person. I give this matter weight in favour of cancelling the visa in my consideration of the discretion. I give this matter weight in favour of cancelling the visa.

    Legal consequences of a decision to cancel a visa

26. 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.

27. 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.

28. 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.  But the statutory consequences of a visa cancelled under these 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.

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

29. 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?

30. As set out above 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?

31. 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, had it been considered necessary, would lead to a breach of Australia's non-refoulement obligations.

    Other relevant factors assessed

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

    DECISION

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

34. The Tribunal affirms the decision under review to cancel the applicant's Subclass 573 Higher Education Sector visa.

    Brian Camilleri
    Member