Singh (Migration)

[2019] AATA 3491

Singh (Migration) [2019] AATA 3491 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arun Singh

CASE NUMBER:  1818683

HOME AFFAIRS REFERENCE(S):          BCC2018/1353481

MEMBER:Peter Booth

DATE:1 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2019 at 4:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – reason for non-attendance – criminal trial proceedings – 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

1. This is an application for review of a decision dated 19 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector 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 comply with condition 8202(2)(a). 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 24 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Haryanvi and English languages.

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 (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?

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 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).

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 applicant gave evidence that he had not been enrolled in a registered course of study from 4 December 2016. Accordingly, on the evidence before the Tribunal, the applicant was not enrolled in a registered course.

9. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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’

11. The Tribunal turns to consider any relevant factors, including matters raised by the applicant and the departmental guidelines as follows:

    ·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 gave evidence that he arrived in Australia on 30 March 2015 as the holder of a Subclass 573 (Student) visa, and that it was his intention to undertake study in Business Administration (Certificate IV), a Diploma in Business and then a Bachelor degree in Business.  He said that he had finished the Certificate IV course in Business Administration in approximately October 2015. Thereafter, he completed the Diploma of Business course on or about 4 December 2016. 

    The applicant did not give any evidence as to whether or not he had a compelling need to travel to or remain in Australia.

    ·The extent of compliance with visa conditions

    The applicant conceded that he had not been enrolled in a registered course of study since approximately 4 December 2016, and accordingly, had not complied with the visa condition at least that extent.

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

    The applicant did not give any evidence as to any hardship or degree of hardship that may be caused (financial, psychological, emotional or other hardship) in the event that the decision to cancel his visa is affirmed. However, the Tribunal accepts that there would be necessarily some financial hardship to the extent of fees which have been paid; and some emotional hardship insofar as the applicant would be disappointed or embarrassed by his failure to complete his intended fields of study.

    ·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

    The applicant gave evidence that he had a Confirmation of Enrolment for the Bachelor of Business degree, which was due to commence on 18 July 2016 and to conclude on 30 June 2018.  In his somewhat disjointed and often contradictory evidence, the applicant said that he did not get any notice from the course provider that his enrolment had been cancelled.  

    It subsequently transpired in his evidence that what he meant was, he did not receive notification of the cancellation of his enrolment at the time that it was done. Rather, he found out about the cancellation sometime later, although did not take issue with the fact that his enrolment had indeed been cancelled on or about 4 December 2016.

    The applicant said that he did not attend classes after he had completed the Diploma course. He went on to say that he was involved in an altercation which led to criminal charges being pressed against him, arising from a group affray.  He said that he was interviewed by the police in early 2017 and subsequently charged.  He said that the charges were laid against him in approximate January 2017 but that the criminal proceeding was not completed until April 2019.

    The applicant gave evidence that he went to court on approximately five occasions during that period.  It seems that the applicant pleaded guilty to the charges ultimately, that no conviction was entered against him but that a Community Correction Order was made.  This occurred on or about 16 April 2019.

    When asked by the Tribunal why he was not enrolled in a course of study from 4 December 2016, there was no clear answer.  He repeated that he had not attended classes.  When asked when he found out that the enrolment had been cancelled, it appeared that he became aware of that, on his evidence, on or about 19 June 2018.  He said that he received the notification by email.  This led to some further discussions about why he had not received any earlier notification of the cancellation of his enrolment.   In that regard he said that he had never changed his email address whilst in Australia and in fact, had not found out about the cancellation of enrolment until shortly prior to applying to this Tribunal for a review of the decision. 

    The Tribunal asked the applicant whether, upon realising that his enrolment had been cancelled, he had contacted the course provider. The applicant said that he had not and, in response to a further question, said that he was “not in the state to do so”.  The Tribunal enquired whether he had any medical certificate or evidence to support any medical reason why he was not in a condition to contact his course provider. The applicant said that he did not.

    It is difficult to accept that the applicant did not receive any email notification from the course provider regarding the cancellation of his enrolment, if his email address had never changed. However, assuming in the applicant’s favour that he did not receive such a notification, then it is nonetheless surprising that when he did find out, he did nothing about it.   He gave evidence that he did not contact the course provider when he found out about the cancellation, apparently in June 2018. The Tribunal finds this to be most surprising.  

    In any event, the applicant’s clear evidence was that he did not attend his classes for the Bachelor of Business course at all. This was apparently because of the impending criminal prosecution, according to the applicant’s evidence.  The Tribunal does not find this to be compelling for a variety of reasons. First, the applicant was not charged with any offence until early 2017.  Accordingly, he could have attended classes up until that time. Secondly, after being charged and before the trial, he was required to attend court on only perhaps four occasions. This would not have prevented him from attending classes and undertaking study. In any event he could have made arrangements to receive course materials and/or view lectures online, but did not do so. Thirdly, the trial of the criminal charges did not proceed for any substantial length of time; indeed it appears that the applicant pleaded guilty at trial. Accordingly, there was no substantial time lost either preparing for or enduring the criminal trial.  Lastly, if there was any medical reason why the applicant could not attend his course or undertake the requisite study, the applicant produced no expert report, and barely made any reference to any such a condition.

    For those reasons the Tribunal is unconvinced that the applicant could not have attended his course and that the reasons for his non-attendance were beyond his control.

    ·Past and present behaviour of the visa holder towards the department

    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

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

    There was no evidence in relation to this factor. However the Tribunal acknowledges that there will be legal consequences for the applicant in the event that the decision is affirmed. However these are the consequences which were intended by Parliament at the time of enacting the relevant legislation and 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

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

    ·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

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

    ·Any other relevant matters

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

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

    DECISION

13. 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 (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.