Singh (Migration)

[2019] AATA 2360

Singh (Migration) [2019] AATA 2360 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amarpreet Singh

CASE NUMBER:  1820478

HOME AFFAIRS REFERENCE(S):           BCC2018/1295805

MEMBER:D. Triaca

DATE:26 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 June 2019 at 1:10pm

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 – serious breach – anonymous allegations – vague and largely uncorroborated hearsay – 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 5 July 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 was not enrolled in a registered course of study from 26 September 2017.. 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 26 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi 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 is 28 years old. He arrived in Australia in 2014, having been granted a student visa on 3 April 2014. He states that his purpose of coming to Australia was to study IT Networking at Holmesglen in Chadstone. In 2014 he enrolled in an ELICOS program at Holmesglen for 4 months and then enrolled in and commenced an IT Networking at Holmesglen. He states he completed one semester at Holmesglen in 2015 but did not complete the second semester. He says in 2016 he enrolled in Stotts College where he studied for approximately 12 months. He states he ceased enrolment at Stotts as he could not pay the fees. He says in 2017 he enrolled in a commercial cooking course at PAX in 2017. He says that his enrolment was cancelled by PAX in 2017.

9. The applicant has provided no documentation in relation to any of his studying. He states he does not recall the exact dates on which he enrolled or ceased enrolment in the courses he was enrolled in. He confirms his enrolment was cancelled by PAX. He conceded that his enrolment was cancelled on 24 September 2017. He states he has not been enrolled in any registered course since that time.

10. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 24 September 2017 and 5 July 2018. Accordingly, the applicant has not complied with condition 8202(2). As this was a condition which attached to his visa, the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

11. 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’.

    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.

12. The applicant gave evidence that he came to Australia to undertake study and intended to undertake a course in IT Networking.

13. He says he wishes to return to study and enrol in a course in commercial cookery at PAX. I questioned him on his intentions, noting that he had previously had problems paying the fees associated with the various courses he has enrolled in. However, he stated that he would be able to pay fees in the future.

14. The applicant gave no specific evidence of any compelling need to travel to or remain in Australia.

15. Having regard to the applicant’s evidence, the Tribunal accepts that he may have travelled to Australia intending to study and he intends studying in Australia in the future. But given his conduct since arriving in Australia set out below, and his inability to complete any of the courses he has enrolled in, save for the initial ELICOS course, the Tribunal gives this only limited weight towards the visa not being cancelled.

    The extent of compliance with visa conditions.

16. The applicant conceded he was not enrolled in a registered course of study from 24 September 2017 until the cancellation of his visa on 5 July 2018.

17. The Tribunal considers that the applicant was did not comply with visa condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment.

18. He states that during 2017 he became distracted from his studies as he was in a relationship. He said that he was working, trying to support himself and his partner but found he could not satisfactorily support them and also pay the fees associated with the courses he was enrolled in and this led to his enrolment being cancelled. The Tribunal does not find the applicant’s reasons for not being enrolled in a registered course of study for a substantial period of time compelling or convincing.

19. The Tribunal considers that the applicant is responsible for maintaining his enrolment in accordance with the visa requirements and the Tribunal give this some weight towards cancelling the visa.

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

20. The Tribunal asked the applicant if he would suffer hardship if the visa was cancelled. The applicant gave evidence that he would be emotionally upset if the visa was cancelled, noting that he would be disappointed to return to India without completing a formal qualification.

21. He did not state any financial hardship would follow the cancellation of his visa.

22. The Tribunal gives this minimal weight towards not cancelling the visa.

    Circumstances in which the ground for 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.

23. The applicant gave evidence as to the circumstances that lead to the cancellation of the visa as set out above.

24. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by the reasons for non-enrolment. The applicant would have been aware from his previous studies in Australia that failure to pay fees each semester to confirm enrolment may result in a non-enrolment in the course of study.

25. The Tribunal has considered the applicant’s explanations as to why he was not enrolled for this substantial period of time and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter very significant weight towards the visa being cancelled.

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

26. The applicant did not respond to the Department’s Notice of Intention to consider the cancellation of the visa. However, the Tribunal does not consider this failure to indicate poor behaviour towards the Department and there is no evidence before the Tribunal that he has been uncooperative in his dealings with the Department. The Tribunal gives this a little weight in his favour.

    Whether there would be consequential cancellations under s.140

27. This matter is not relevant in this application and I have this factor no weight.

28. 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.

29. The applicant gave evidence that if the visa remained cancelled he would return to India and therefore there is no indication that he would become unlawful or be subject to detention and I give this factor no weight.

    Whether any international obligations, including non-refoulement and best interest of the children as primary consideration, would be breached as a result of the cancelation.

30. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to India and he did not give any reasons as to why he could not return to India and he has not made any claims that relate to this consideration. I give this factor no weight.

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

31. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Section 359AA of the Migration Act matter: information provided that a person whose confidentiality of identity was being preserved had contacted the Department

32. It was put to the applicant under the provisions of section 359AA of the Migration Act that certain adverse information had been provided to the Tribunal that during 2018, the applicant continued to work full time despite being investigated for breach of his visa requirements and “drives the work car”.

33. The applicant responded to the allegations in a straight forward manner. He stated that he had worked in Australia but only in accordance with his visa requirements. When he was a student he worked casually in the kitchen at Groove Train, Werribee to a maximum of 2 – 3 shifts per week. He has also worked in construction and as a tiler. He stated that he worked during the period his visa was cancelled but only in accordance with the visa.

34. He denied ever “driving a work vehicle.”

35. In circumstances in which the allegations provided are vague and largely uncorroborated hearsay, the Tribunal has no regard to this “adverse information” and does not place any weight on these matters in determining this application.

    Any other relevant matters.

36. There do not appear to be any matters relevant to determining this application.

37. The Tribunal has considered the applicant’s evidence at hearing. The applicant did not provide any documentary evidence to the Tribunal in support of the application, or provide any submissions. Considering the applicant’s 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.

    D. Triaca
    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.