Singh (Migration)

[2019] AATA 3619

Singh (Migration) [2019] AATA 3619 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankur Deep Singh

CASE NUMBER:  1813835

DIBP REFERENCE(S):  BCC2016/3654147 BCC2018/173289

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          17 June 2019 at 10:50 am (VIC time)

DATE OF WRITTEN RECORD:                4 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 04 July 2019 at 2:32pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – credible witness – reasons for non-compliance – gambling problem – non‑payment of fees – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 May 2018 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 17 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs on 1 May 2018 cancelling a sub‑class 500 student visa pursuant to section 116(1)(b) of the Migration Act.

4. The applicant’s visa was granted on 22 November 2016 with an original expiry date of 15 September 2018 providing for approximately one year 10 months during which the applicant would be permitted to reside in Australia for the purposes of full-time study. The visa had been granted on the basis that the applicant would remain enrolled in and make satisfactory progress in relation to one or more registered courses of study for the duration of the stay in Australia. The delegate cancelled the applicant’s visa on the basis that the applicant had breached that condition of the visa which required him to continue to be enrolled in a registered course of study. The issue in the present case is whether that cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the tribunal on 17 June 2019 to give evidence and present arguments. He was assisted by his migration agent, Mr Dilhip Singh. The tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, although I note at no stage did the applicant draw upon that interpreter for assistance due to his English being satisfactory.

6. The applicant’s visa was subject to a number of conditions as described by schedule 8 of the Migration Regulations 1994. In the present case, the issue is whether the applicant has breached condition 8202 of the regulations. If the applicant breached that condition the visa may then be cancelled pursuant to section 116.

7. Condition 8202(2)(a) of the applicant’s visa require that the applicant remain enrolled in a registered course of study, and the delegate’s decision records the delegate identified the period from 27 June 2017 to 1 May 2018 as the relevant period in which the applicant was not enrolled in a registered course. This amounted to more than eight months during which the applicant was in continuous breach of the visa.

8. The delegate’s finding in this respect is based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System, known as PRISMS. The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000.  It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued.

9. In particular, and of relevance to the present case, it may be used by course providers to report that they had cancelled a particular student’s enrolment in a course for which they had previously been enrolled and also the reasons for doing so. The PRISMS report obtained by the delegate in this case indicated that the applicant’s course provider, the University of Sunshine Coast, had cancelled his enrolment in a Master of Professional Accounting due to the non‑payment of fees, that cancellation being effective from 27 June 2017. That Masters course had an original commencement date of 3 April 2017 with a finishing date of 15 December 2018.

10. The tribunal notes that the applicant had previously been enrolled in a Masters of Business Administration which had formed the basis of the visa grant but the applicant stated in evidence at the hearing today that he changed this course shortly into the MBA because of his interest in accounting. Nothing turns on that particular aspect of the case.

11. The Department of Home Affairs wrote to the applicant by letter dated 22 February 2018 notifying him of its intention to consider cancelling his student visa. That notice set out particulars of the alleged breach by the applicant of condition 8202 specified on 27 June 2017 as the date on which the applicant’s enrolment had apparently ceased. The department’s letter also drew attention to the fact that the PRISMS database appeared to show he had not been enrolled in any registered course of study since that time.

12. The applicant was invited to comment on these allegations before the department moved to cancel the visa but the applicant provided no written response. He has, however, appealed the decision, and so he has had the opportunity to present his response to the allegations today. In his evidence before the tribunal today, being 17 June 2019, the applicant conceded that he had been in breach of his student for the period alleged by the delegate.  Accordingly, the tribunal is satisfied the delegate was correct in reaching a conclusion that the applicant was in breach of condition 82.02(2)(a) of the visa.

13. Having found the applicant has not complied with the 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. However, the tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the applicant in the course of the hearing and any relevant matters identified in the department’s Procedures Advice Manual known as PAM3, titled ‘General Visa Cancellation Powers’.

14. In evidence before the tribunal today, the applicant stated that when he came here on the original visa grant in December 2016 it was only a few days after that he discovered gambling.  He said that he would gamble about $10 to $20 a day, but after a few days of doing this the problem seemed to increase. He started losing money. Then he said he started to gamble big. He stated that his principal gambling choice was betting on cricket and football matches. He stated that prior to coming to Australia he had never had a problem with gambling before. He stated, and this was reiterated by his representative in submissions, that in the country where he came from, being India, there is no gambling.  That is because gambling is illegal in India. On that basis, it seems that the applicant had never encountered the concept of gambling, so it was a novel thing to encounter in Australia.  The applicant also stated that his cousin took him to Crown Casino, another gambling venue.

15. At this point in time, he was only in his early 20s, being about 21 years old. The money that he used to gamble originally came from his mother and his brother. That money, which he used at the outset of his gambling problem, was supposed to be used for rent and food.  They gave him about $4,000 and it appears, based on the evidence of the applicant, that he squandered most of it on gambling.  He stated that the fees for his first semester of studies in the master’s course had already been paid for so at least in that respect the enrolment was safe for the first semester. It appears by the time that he had to come to pay for the second semester’s fees he had used that money and wasted it on gambling.

16. The applicant produced in evidence to demonstrate the extent of the gambling problem a statement of an account that he had with a betting agency. The tribunal has reviewed that and it appears that he had an account opened from 21 December 2016 up to 12 July 2018 indicating that he deposited a total of $52,745.19 into that account. The applicant stated that he lost all of that money as a result of gambling.

17. In the tribunal’s view it is a very tragic state of affairs that a student should come to Australia for the purposes of study, being funded by his family, and using that money and wasting it on something that serves no purpose at all for the purposes of his future. This was the essential reason why the course enrolment was cancelled. He could not pay for fees for the second semester because he had wasted all of the money on gambling.

18. In terms of that being a reasonable excuse for breaching the visa, the tribunal was very hard pressed to see any at all. The applicant essentially made a choice to take that money when it was provided to him for the purposes of applying to his study and his living arrangements, and instead chose to satisfy a particular need of gambling.  It was completely irresponsible.  The applicant is to be given some credit for being forthright and honest in disclosing his problem to the tribunal at the outset. The tribunal listened to his evidence intently and considered him to be a reasonable witness of truth. 

19. He stated in evidence that he has effectively destroyed his future because eventually he did disclose to his family, only last year, that he had wasted all of the money on gambling that was meant for his studies and in evidence he stated that they were very angry, understandably that is naturally going to arise from this particular situation and the tribunal accepts the evidence in this respect.

20. In terms of the extent of compliance before the enrolment was ceased, the applicant stated that he passed two out of the four units which had been paid for, so there has been some degree of compliance although the applicant provided no evidence of his academic transcript in that respect. Because the tribunal accepts him to be a witness of truth the tribunal ultimately accepts that to be the case he passed two out of four units and probably would have had to re-enrol to do some more extended study in any event.

21. The tribunal notes that the applicant did not seek any professional help in relation to this.  On his own evidence, he solved the problem of gambling by himself.  He closed the account and he has stopped gambling. He is to be given credit for that.  The tribunal has given consideration to the applicant’s expressed desire to remain in Australia and complete his education. He already has a bachelor’s degree which he indicated here in evidence, and of course that allowed him to become eligible to enrol in the master’s course in Australia. It would be of benefit to him to remain here and complete that course.

22. As noted above, the applicant stated that by gambling and wasting in excess of $50,000 of his family’s money, which should have been applied to his studies, he has, in his own words, destroyed some part his future.  It was his own fault and he now has to face the responsibility of dealing with the consequences of that.

23. The tribunal accepts that he has lost so much financially and that he is going to be hard pressed if he returns home without a visa, or at least with his visa being cancelled. He will face the wrath of is family. The tribunal accepts on the evidence of the applicant that his family has indicated that if he is not permitted to stay in Australia he will have to return home and they will punish him and the punishment, as indicated by the applicant and his migration agent, is that he will be forced into a marriage which he does not want in accordance with the customs of that country.

24. The tribunal has given consideration to the applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the tribunal in that regard. There also do not appear to be any other reasons that it would be cancelled as a consequence of any cancellation that may flow today, so section 40 has been considered in that regard.

25. The tribunal notes that if the visa is cancelled the applicant will become an unlawful non-citizen and liable for detention under section 189 and removal under section 198 if he does not voluntarily depart. A bar under section 48 will be imposed limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have a temporary visa approved if he applies for it because public interest criteria 4013 will need to be met. However, these are the intended consequences of the legislation when a visa is cancelled. It reflects the seriousness of the breach of the conditions.

26. The tribunal notes the applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of India and holds a current passport for that country so he will return there. While detention and forcible removal from the country are significant powers, it will only eventuate if the applicant does not cooperate with the authorities giving effect to his departure.

27. Australia’s international obligations do not appear to be engaged by the circumstances of this case and in all of the circumstances the most significant consideration in this case that has led to the conclusion of the tribunal today is the complete absence of a satisfactory reason why he breached the visa. It was essentially through his own misdeeds of gambling, wasting and squandering money when that money should have been applied to the studies.  In these circumstances, the tribunal is satisfied that the applicant’s visa ought to be cancelled. The time now is 10.50 am. In case number 1813835 the tribunal affirms the decision. That concludes the hearing.

    DECISION

28. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member