Singh (Migration)

[2019] AATA 3662

Singh (Migration) [2019] AATA 3662 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Azadwinder Singh

CASE NUMBER:  1833643

HOME AFFAIRS REFERENCE(S):           BCC2018/3839314

MEMBER:David Thompson

DATE:29 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 29 July 2019 at 10:45pm

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 – purpose of travel and stay – genuine student – circumstances giving rise to non-compliance – dispute with education provider regarding fees – failure to take reasonable steps – decision under review set aside

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 8 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 (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 had not been enrolled in a registered course of study since 6 October 2017 and was therefore in breach of condition 8202 on his 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 before the Tribunal on 19 June 2019 to give evidence and present arguments. He did so without the assistance of an interpreter. The applicant’s English was adequate to the task, but there were points in his evidence at which the applicant obviously had some difficulty in expressing himself. The Tribunal has made due allowance for this in reaching its decision.

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

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 of study between 6 October 2017 and 8 November 2018, the date of the delegate’s decision.

8. The Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) on 3 October 2018. The Department stated that it was considering cancellation of the applicant’s visa on the basis of evidence available to the Department in the Provider Registration and International Student Management System (PRISMS). That evidence indicated that the applicant had not been enrolled in a registered course of study since 6 October 2017. The Department stated that it appeared the applicant had not met the requirements of condition 8202(2)(a) and in that case was in breach of condition 8202.

9. The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his review application, notes that the applicant did not respond to the NOICC.

10. On 8 November 2018 the delegate cancelled the applicant’s visa. The delegate’s decision record again refers to the applicant’s PRISMS record and states that PRISMS shows the applicant had not been enrolled in a registered course since 6 October 2017.

11. The Tribunal heard the applicant’s review application on 19 June 2019. The applicant appeared at that hearing to give evidence. The Tribunal explained the basis upon which the delegate had found that the applicant had breached condition 8202, and asked the applicant whether it was true that he had not been enrolled in a registered course from 6 October 2017 until the date of the delegate’s decision. The applicant confirmed that this was the case.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 6 October 2017 and 8 November 2018. Accordingly, the applicant has not complied with condition 8202(2)

    Consideration of the discretion to cancel the visa

13. 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’.

14. The delegate’s decision record discloses that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) Visa on 13 July 2015, valid until 15 March 2019.

15. At hearing, the applicant gave evidence as to the course his studies had taken in Australia. It became immediately apparent that the applicant took the view that it was the course his studies had taken that had led him to breach condition 8202(2).

16. In taking the applicant’s evidence on this point, the Tribunal had reference to his PRISMS record. As that record showed numerous course cancellations, and as those cancellations could have led the Tribunal to adverse conclusions regarding the applicant’s purpose in coming to Australia and the reasons for his breach of condition 8282(2), the Tribunal put the applicant’s PRISMS record to him pursuant to s.359AA of the Act.

17. The applicant’s oral evidence was vague on some points, but was generally consistent with his PRISMS record, although the PRISMS record clarifies some points of chronology.  The applicant’s evidence, as supplemented by his PRISMS record, was as follows:

    a.The applicant originally came to Australia in July 2015 to study for a Diploma of Business progressing to a Bachelor of Business course.

    b.He enrolled in a Diploma of Business course at the Australian College of Applied Education. The applicant’s PRISMS record also shows an enrolment in a Bachelor of Business course, which is consistent with the applicant’s evidence as to the package of courses he came to Australia to undertake.

    c.The applicant finished his Diploma of Business course in 2016. However, his college failed to give him his certificate of completion. He made many attempts to obtain his certificate, but for reasons he does not understand he was unable to do so.

    d.Rather than commencing his Bachelor of Business course, the applicant changed his college to Stanley College, and in November 2016 changed his enrolment to a package of courses made up of Certificates III and IV in Commercial Cookery and Diploma of Hospitality. The first course in that package, Certificate III in Commercial Cookery, was due to finish on 28 July 2017.

    e.Stanley College gave the applicant a deferral or suspension of his course for compassionate or compelling circumstances. The applicant’s PRISMS record gives the date of this action as 28 November 2016, whereas the applicant gave evidence that it happened in January 2017.

    f.Stanley College subsequently made several variations to his CoEs for all his courses, resulting in a number of apparent course cancellations on his PRISMS record.

    g.As a result of those variations, the applicant was due to finish his Certificate III in Commercial Cookery on 6 October 2017.

    h.The applicant was forced to travel to India in January 2017 because his grandfather was ill.

    i.The Australian College of Applied Education shut its doors in or about May 2017, that is, about 6 months after the applicant left it.

    j.The applicant travelled to India in August 2017, again because of his grandfather’s illness.

    k.Stanley College cancelled the applicant’s CoE for Certificate III in Commercial Cookery on 6 October 2017 for non-payment of fees. That was the date upon which this course was supposed to end. The applicant’s evidence was that he fell into dispute with Stanley College because the College wished to charge him extra fees for taking some classes. The applicant could not at hearing say which classes they were, or why the College thought it was entitled to charge extra fees.

    l.On the same date as it cancelled the applicant’s CoE for Certificate III in Commercial Cookery (6 October 2017), Stanley College cancelled the applicant’s CoEs for the subsequent courses in the package in which he had enrolled. The applicant’s PRISMS record notes the reasons for those cancellations as “Non-commencement of studies.”

    m.The applicant made a further journey to India in November 2017. His grandfather died during that month.

    n.Stanley College did not inform the applicant that it had cancelled his enrolment until January or February 2018, when it sent him a letter to that effect.

    o.Upon receipt of that letter the applicant started looking for other colleges at which he could continue his studies. His evidence was that he did so through a migration agent, but that he was told that no college would enrol him because he had insufficient time left on his student visa to complete his studies. That was the position as at March or April 2018.

    p.The applicant received the Department’s NOICC. Upon receiving it, he again contacted his migration agent to see if his agent could find him a course in which he could enrol. He was told that it was too late to apply for enrolment in a new college.

    The Tribunal accepts this evidence and makes findings accordingly. The Tribunal now turns to its consideration of the factors relevant to the exercise of the discretion to cancel the applicant’s visa.

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

18. The applicant’s evidence at hearing was that his purpose in coming to Australia was to study. At various points in his evidence, the applicant referred or alluded to his intention to return to his home country once he had finished his studies. The applicant also stated in evidence that this remains his purpose.

19. However, on the evidence set out above, the applicant has not studied since 6 October 2017. The Tribunal asked the applicant at hearing why, having been unable to find enrolment, he had not returned to India. He explained that his mother is now his only living relative and that she depends on him. He has not told her of the cancellation of his visa, and dreads disappointing her by returning to India without an Australian qualification. The applicant stated that he still intends to study if he is given the opportunity to do so, so that he can return to India with a qualification. There is no evidence before the Tribunal contradicting this explanation, and it is consistent with the applicant’s evidence as to his purpose. It leads to the separate question of what the applicant has done to fulfil that purpose since 6 October 2017, but that issue will be dealt with in considering the extent of the applicant’s compliance or non-compliance with his visa conditions.

20. The Tribunal accepts the applicant’s evidence as to his purpose in coming to and staying in Australia, and finds accordingly. This finding weighs against exercising the discretion to cancel the applicant’s visa.

    Circumstances in which ground for cancellation arose

21. On the evidence before the Tribunal, as set out above, the immediate cause of the ground for cancellation of the applicant’s visa (his failure to maintain enrolment in a registered course of study between 6 October 2017 and the date of the Delegate’s decision) would appear to be the dispute the applicant had with Stanley College regarding the fees the college claimed he was required to pay. At hearing, the applicant proved unable to explain that dispute to the Tribunal with any degree of specificity. His evidence was simply that Stanley College demanded that he pay some course fees he did not think he should have to pay. 

22. At hearing, the applicant asserted that he had finished his Certificate III in Commercial Cookery. His PRISMS record suggests otherwise, and the applicant did not produce any certificate of completion in respect of that course. It is possible that the applicant did indeed finish the course, but that Stanley College would not record his completion until he had paid outstanding fees. Be that as it may, the applicant did not explain his reasons for his position that he should not have to pay fees. He gave no explanation of any basis for thinking he was not liable to pay, nor any evidence suggesting a basis for such a position. Nor did the applicant give evidence that he could not pay. To the contrary, the evidence before the Tribunal leads it to conclude that the applicant felt affronted or aggrieved at being asked to pay, and simply refused to do so.

23. The thrust of the applicant’s submissions at hearing and the tenor of his evidence was, however, that the dispute with Stanley College was merely the last circumstance in a chain of circumstances for which he bore no responsibility that left him without an enrolment and with insufficient time left on his visa to obtain an enrolment. It is therefore necessary to examine the course of events in more detail.

24. The first such circumstance was the applicant’s inability to obtain his certificate of completion of his Diploma of Business from his original education provider, the Australian College of Applied Education (ACAE). The applicant’s evidence was that he went to the ACAE to ask for his certificate but was told that it would be posted to him, and that he never received it. His subsequent efforts to obtain the certificate were to no avail. The applicant placed considerable importance on this. When asked at hearing why he did not go to on start his Bachelor of Business, he said that he could not do so without his certificate. The applicant was enrolled to undertake his Bachelor of Business studies at ACAE.  It was put to him at hearing that it would hardly be necessary to show ACAE a certificate reproducing information it held in its own records before commencing Bachelor’s studies. The applicant insisted that he could not have started his Bachelor’s degree course without his certificate, and it was for that reason that he transferred to Stanley College.

25. The applicant also placed weight on the fact that ACAE closed its doors and went out of business approximately 6 months after the applicant left it. However, as the applicant had left already and was no longer studying business, ACAE’s closure cannot have led to the breach of his visa condition that ultimately founded the Delegate’s decision to cancel his visa, that is, his failure to remain enrolled in any course of study at all after 6 October 2017.

26. The applicant also placed weight on the circumstance of his grandfather’s death in November 2017. He gave evidence that his grandfather and mother were his only living relatives, and that his grandfather’s death had a severe emotional impact on him, which made it difficult to continue with his studies. The Tribunal accepts that the death of the applicant’s grandfather had a severe emotional impact on him. However, by that time the applicant had already fallen into dispute with Stanley College about fees, as outlined in paragraph 17(k) above, and had had his CoEs for his package of courses cancelled. The emotional stress of his grandfather’s illness may well have contributed to his attitude towards that dispute and may well have made it more difficult to resolve than it might otherwise have been – as the Tribunal was not given any sufficiently detailed evidence as the scale or nature of the dispute it is difficult to say. There is nothing in the evidence before the Tribunal suggesting that dispute was incapable of compromise or resolution. In general terms. It would have been open to the applicant to negotiate with the College, or to pay the fees in dispute under protest and with a reservation of his rights to raise the issue again at a later date. The Tribunal finds that the applicant could have taken such steps, to resolve the dispute and so to avoid breaching his visa conditions, but did not do so. On the evidence before it the Tribunal is not satisfied that the applicant had any reasonable grounds for refusing to pay Stanley College, or made any reasonable or concerted effort to resolve his dispute with the College.

27. For the reasons given above, the Tribunal finds that the cause of the applicant’s breach of his visa conditions – his ceasing to be enrolled after 6 October 2017 – was the applicant’s dispute with Stanley College, and that the applicant was at least partly responsible for allowing that dispute to reach the point were his enrolment was cancelled. As the applicant was not entirely responsible for that state of affairs, the Tribunal finds that this factor favours the applicant. However, as the applicant was partly responsible, the Tribunal gives this factor only moderate weight as a reason to refrain from exercising the discretion to cancel.

    Extent of compliance with visa conditions

28. At the date of this decision, the applicant has remained in Australia without being enrolled in a course of study for almost 22 months. Although the Tribunal accepts the applicant’s explanation of why he has not returned to India as recounted in paragraph 19 above, this is nonetheless a very significant breach. This circumstance weighs strongly in favour of cancelling the applicant’s visa. However, the applicant gave evidence of matters tending to explain the amount of time he has spent in Australia without being enrolled in a course of study. The Tribunal turns to consider those matters, and whether and to what extent they excuse the extent of his non-compliance.

29. The applicant gave evidence that shortly after Stanley College gave for the cancellation of his enrolment he had to return to India because his grandfather was ill, and that his grandfather died in November 2017 in the course of that visit. He also gave evidence that after receiving notice from Stanley College in about January or February 2018 that his enrolment had been cancelled he retained a migration agent to look for another college in which he could enrol. The applicant further stated that at that time he was aware that he needed to be enrolled in a course of study if he was to remain compliant with his visa conditions, and that by March or April 2018 he had been told that no college would accept him because he had insufficient time remaining on his visa.

30. At that point, the applicant’s visa would (if not cancelled) have been valid for a further year. The Tribunal accepts that given his grandfather’s death, it was understandable that the applicant did not immediately seek enrolment with another college.  However, it is difficult to believe, at least in the absence of detailed evidence of the applicant’s (or his agent’s) efforts and the responses those efforts met, that he could not have found a course provider willing to enrol him for at least a Certificate IV in Commercial Cooking. The applicant would had to have applied for a further student visa to complete his projected course of studies, but such applications are common and there is no particular reason to suppose that an application would have been refused, particularly if the applicant had continued to study in the meantime.  The Tribunal accepts that it would only have become harder to find an enrolment as time went on, but the applicant has given no evidence of having made any such efforts after at latest April 2018. Nor has the applicant been able to give any specific evidence as to what was done to find him a new enrolment up to that point, or produce any documentary evidence that his applications for enrolment were refused. His evidence was that he left this in the hands of his migration agent. However, the applicant did not seek to have the Tribunal obtain evidence from his migration agent at hearing. There is no evidence before the Tribunal that would allow it to determine whether that agent made all reasonable enquiries or efforts on the applicant’s behalf. The Tribunal does not, however, consider that it was reasonable of the applicant to leave such an important matter entirely in the hands of an agent, given that the applicant understood the importance of maintaining enrolment if he was to remain compliant with his visa conditions.

1. The Tribunal finds that the death of the applicant’s grandfather, and its effect on the applicant’s mental state at an important moment, does weigh in favour of the applicant.  However, the Tribunal also finds that that the applicant’s leaving the finding of an enrolment entirely to his migration agent, and making no personal efforts to find a solution to his problem, particularly after March or April 2018 does not detract from the seriousness of the extent his breach to any extent. The Tribunal therefore finds that the extent of the applicant’s breach still weighs against the applicant to a considerable extent, despite his explanations.

   Degree of hardship that may be cause by cancellation of visa

2. The applicant was asked at hearing to identify any hardship he might suffer by reason of cancellation of his visa. The applicant’s submission is that he would suffer emotional hardship by reason of the shame he would feel in returning to India without having achieved Australian qualifications and from disappointing his mother. He also stated that he would suffer financial hardship in that he had taken out loans to pay for his studies and would have little chance of repaying those loans if he was unable to obtain employment in India through lack of qualifications.

3. There is no other evidence before the Tribunal as to the extent of the applicant’s borrowing, the terms on which he had borrowed, or of his employment prospects in India, with or without Australian qualifications. The Tribunal notes that the applicant’s highest Indian educational qualification is the completion of secondary senior school.

4. The Tribunal accepts that the applicant will suffer some emotional hardship if his visa is cancelled, and gives this some weight as a reason to refrain from exercising the discretion to cancel the applicant’s visa. In the absence of evidence corroborating the applicant’s assertion that he will suffer financial hardship, and in the absence of further evidence as to the extent of that hardship, the Tribunal gives this factor no weight as a reason to refrain from exercising the discretion to cancel.

   Applicant’s past and present behaviour towards the Department

5. On the evidence before the Tribunal, the applicant did not contact the Department when he transferred his enrolment from the Higher Education sector to the Vocational Education and Training Sector, and took no action on receipt of the Department’ NOICC.  The applicant’s explanation for his lack of engagement with the Department in the former case was that he did not understand that there was any need for it. He had no explanation for his failure to respond to the NOICC and did not distinctly remember having received it. However, there is no evidence before the Tribunal that the applicant has been at fault of any kind in his other dealings with the Department.

6. On balance the Tribunal gives this factor a little weight in the applicant’s favour, as a reason to refrain from exercising the discretion to cancel.

   Whether there would be consequential cancellations under s.140

7. The applicant’s evidence is that there is no person who would suffer cancellation of their visa because the applicant’s visa is cancelled. There is no indication in any other evidence before the Tribunal of any such person. The Tribunal gives this factor no weight, either for or against the exercise of the discretion to cancel.

   Whether cancellation would have mandatory legal consequences

8. If the applicant’s visa is cancelled, he will be subject to restrictions as to the classes of visa for which he is entitled to apply while remaining in Australia. He may also become ineligible for a period to be granted a further student visa offshore. These consequences are consequences intended by the legislation, and the Tribunal therefore gives this factor no weight, either for or against the exercise of the discretion to cancel.

9. However, there is no evidence before the Department that the applicant has been granted a bridging visa of any kind. He may therefore be subject to detention if the Department’s decision is affirmed. This is a factor that, in the context of the circumstances discussed above, weighs in favour of the applicant.

   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

10. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa would result in the breach of any international obligation. The Tribunal gives this factor no weight, either for or against the exercise of the discretion to cancel.

    Any other relevant matters

11. Neither the evidence before the Tribunal nor the submissions made to it by the applicant disclose any other relevant matter that should be taken into consideration.

    DECISION

12. Considering the circumstances of the case as a whole, the Tribunal concludes that on balance the applicant’s visa should not be cancelled.

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

    David Thompson
    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.