Singh (Migration)

[2019] AATA 2571

Singh (Migration) [2019] AATA 2571 (6 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhpreet Singh

CASE NUMBER:  1832624

HOME AFFAIRS REFERENCE(S):           BCC2018/4029849

MEMBER:Christine Kannis

DATE:6 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 06 July 2019 at 12:53pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant breach – purpose of visa not fulfilled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 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. On 31 May 2019 the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 18 June 2019 at 12.00 pm. The letter informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The letter advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

5. On 11 June 2019 and 17 June 2019 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review. 

6. The applicant did not respond to the Invitation to Attend a Hearing.

7. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

8. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

9. 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

10. 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?

11. On 29 June 2015 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.

12. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant was not been enrolled in a registered course of study when his enrolment in an Advanced Diploma of Business was cancelled on 11 November 2017. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 11 November 2017. The Tribunal finds that he breached condition8202(2)(a) of his visa.

13. 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

14. 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 in his response to the Notice of Intention to Consider Cancellation (NOICC) , and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

15. As the applicant did not attend the hearing or provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s file including the Decision Record.

16. On  8 October 2018 the Department of Immigration and Border Protection issued the applicant with a 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

17. On 22 October 2018 the applicant responded to the NOICC  and provided the following information:

    ·He was studying at TAFE until February 2017. He decided to leave because despite studying so much he failed his Certificate III in Business course. He felt disillusioned with the teaching and services provided by TAFE and did not deserve to fail because he had performed well in class activities and tests.

    ·He and a couple of equally dissatisfied friends then enrolled in Keystone College of Business and Technology (KCBT) from 25 February 2017 to study a Diploma of Business and an Advanced Diploma of Business. He found this college to be friendly and accommodating.

    ·After studying at KCBT for a couple of months he eventually realised that after leaving TAFE his CoE for the Bachelor course with Edith Cowan University (ECU) had been cancelled.

    ·He tried to find a CoE for a Bachelor course but could not find any in Perth. Even the Australian School of Management could not help him because its registration was cancelled. He called institutions in the Eastern States and they all refused to accept his application for various reasons including that he had a CoE cancellation from his previous Higher Education provider, they did not take an application for enrolment at a later date or they demanded an exorbitant amount of money for the deposit fees which he could not immediately afford to pay.

    ·He felt depressed with his circumstances but still decided to keep studying at KCBT. He lost all hope of finding a chance to obtain a CoE for a Bachelor course in Perth.

    ·Day by day, he got caught up in the motion of going to college, working part-time and living in Australia and he forgot about his continued obligation to hold a CoE for a Bachelor course.

    ·When he received the NOICC he was shocked and devastated. He reached out to a friend who suggested he get assistance from an agency.

    ·He now holds new CoEs from Stott’s College for an Advanced Diploma of Business and Bachelor of Business. He did not realise this college moved to Perth in October 2017 and could have offered him a Bachelor of Business course.

18. 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

19. The applicant was not enrolled in a registered course of study as required by condition 8202(2)(b) from 11 November 2017 and a period of eleven months elapsed from that date until the NOICC was issued. In his response to the NOICC the applicant said he changed education providers in early 2017. He did not provide reasons for the cancellation of his enrolment in an Advanced Diploma of Business on 11 November 2017. PRISMS shows the variation reason to be “non-commencement of studies”. 

20. The Tribunal decided that when the applicant’s enrolment in a registered course was cancelled on 11 November 2017 he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.  

21. The Tribunal acknowledges that the applicant obtained a CoE for a Bachelor degree course following receipt of the NOICC.  This was created on 12 October 2018 , eleven months after his enrolment was cancelled on 11 November 2017. However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite any subsequent re-enrolment.

22. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any compelling reasons for him to remain in Australia.

23. 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.

24. The extent of compliance with visa conditions

25. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.

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

26. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of his visa.

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

28. The applicant’s visa was cancelled as a result of his failure to maintain enrolment.

29. In his response to the NOICC the applicant referred to his difficulty finding an education provider who would accept him in a Bachelor degree course. He also said he was depressed and he forgot about his obligation to hold a CoE in a Bachelor degree course. No evidence was provided to substantiate these contentions.

30. There was no evidence before the Tribunal to indicate that the applicant’s non-compliance with the visa condition was due to circumstances beyond his control or that there are any extenuating 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

31. 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

32. 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

33. 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

34. 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

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

    Conclusion

36. 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 accepts that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

37. 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

38. 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.