Singh (Migration)

[2019] AATA 4936

Singh (Migration) [2019] AATA 4936 (14 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

CASE NUMBER:  1835291

HOME AFFAIRS REFERENCE(S):           BCC2018/4195745

MEMBER:Christine Kannis

DATE:14 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 14 July 2019 at 3:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – multiple course enrolments – study difficulties – unable to cope – lack of interest – lack of evidence – 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 29 November 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 17 June 2019 to give evidence and present arguments.  

5. 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

6. 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. Relevant 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.

   Did the applicant comply with Condition 8202?

7. On 12 July 2013 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since his enrolment in a Bachelor of Accounting was cancelled on 13 February 2018.

9. Having regard to the information in PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 13 February 2018. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. 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

11. 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’, as set out below.

12. On  16 October 2018 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

    Response to NOICC

13. On 23 October 2018 the applicant responded to the NOICC  and provided the following information:

    ·He is a genuine student however the courses he originally came to Australia to study were too difficult and he failed due to lack of interest in the units or an inability to cope with the requirements.

    ·He did the only thing he could think of and that was to enrol in an Advanced Diploma level of education.  The language and cultural barrier made it difficult to study anything in Australia and that is why he needed to continue a diploma level of education after his English course.

    ·He has always had an interest in Accounting and so he enrolled in Accounting courses starting at certificate level and leading to an advanced diploma. He was unable to complete this study also.

    ·His friends guided him towards undertaking technical courses which are more hands on. He has applied for enrolment in a Certificate III, Certificate IV and Diploma of Automotive Technology.

    ·He has decreased his education level due to not competing well with his Bachelor level of study.

14. At the time of responding to the NOICC the applicant provided copies of previous CoEs and Letters of Offer. A letter dated 8 September 2017 from Universal Business School Sydney advising that the applicant had been granted a deferral from trimester 3, 2017 to trimester 1, 2018 was provided. He also provided a Letter of Offer dated 20 June 2018 from New England College Perth for a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Overhauling and a Diploma of Automotive Technology.

    Evidence at hearing

15. The applicant told the Tribunal that when he arrived in Australia he found the Bachelor course he was studying too difficult. He talked to family and friends and decided to undertake study at a lower level and enrolled in diploma level study. He said he completed a Diploma of Business Management in 2015 however he failed the Advanced Diploma of Business Management. In 2016 and 2017 he continued to try and pass the Advanced Diploma course. 

16. The applicant said he was studying the Diploma and Advanced Diploma courses in Sydney. In November 2017 he came to Perth to help his cousin who was living in Perth and who had developed a drug problem. His cousin’s drug problem was a shock to the family. His cousin has now returned to India.

17. The applicant told the Tribunal that after he arrived in Perth in November 2017 and up until October 2018 when he received the NOICC he was trying to obtain admission to a Bachelor degree course. He tried many education providers including Edith Cowan University (ECU) in January 2018 however they all refused him admission because he didn’t have a cancellation letter from Group Colleges Australia (GCA) where he had been studying in Sydney. The Tribunal asked the applicant whether he had emails or proof of communication with any of the education providers he had approached regarding admission. He said he made telephone calls and personal attendances and therefore could not provide proof of his attempts.

18. The Tribunal noted that in his response to the NOICC and in his oral evidence at hearing the applicant said he was undertaking study at a lower level than the level of study for which his visa was granted. He said he was aware that he was not enrolled in Higher Education Sector courses and conceded that he had made a mistake in breaching a condition of his visa.

19. The Tribunal noted that since his arrival in 2013 the applicant has completed only two courses despite numerous enrolments. The applicant said he has completed only one course and he is now back on the right track and ready to study.

20. When asked about the hardship that may result from cancellation of his visa the applicant said it would be a shame if he returns to India without a qualification. His parents and his brother are all educated and he wants to pursue a career in Business or Accounting. The applicant said it is hard to survive in India without a qualification and the jobs for uneducated people do not pay enough.

21. The applicant told the Tribunal he has no interest in the technical courses he referred to in his response to the NOICC and he only considered them as a way to continue studying at any level.

22. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

23. The applicant arrived in Australia on 1 August 2013. He told the Tribunal his purpose in coming to Australia was to obtain a Bachelor degree.  At the time the NOICC was issued the applicant had not been enrolled in a registered course for at least eight months. The Tribunal finds the applicant was not fulfilling the purpose of his travel to and stay in Australia because he was not enrolled in any registered course from 13 February 2018.  

24. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said it would be a shame if he returns to India without a qualification.

25. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

26. The delegate decided that the applicant also breached condition 8516 of his visa. The Tribunal has confined its decision to a consideration of condition 8202 and makes no findings with respect to condition 8516.

27. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions (other than conditions 8201 and 8516). The Tribunal gives this some weight in his favour.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

28. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing because of the potential to reduce his earning capacity in India however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

29. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. He found the Bachelor degree course too difficult and so he enrolled in lower level of study. The cancellation of his enrolment on 13 February 2018 arose because he ceased study at any level. He said he left Sydney and travelled to Perth in November 2017 because of his cousin’s drug problem. No evidence to substantiate this contention was provided. The applicant conceded that he was aware that he was in breach of condition 8202 when he was no longer enrolled in a registered course. He said he attempted to obtain admission to an education provider for several months from November 2017 up until the issuing of the NOICC. No documentary evidence to substantiate this contention was provided.  He said he was refused admission because he did not have a cancellation letter from GCA.

30. The applicant made decisions with respect to his enrolment based on the difficulty of the courses and because of a claimed family problem.

31. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

32. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

33. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    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

34. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

    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

35. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

36. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

37. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which is visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

38. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.