Singh (Migration)

[2019] AATA 2411

Singh (Migration) [2019] AATA 2411 (14 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjinder Singh

CASE NUMBER:  1812881

DIBP REFERENCE(S):  BCC2018/820617

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 June 2019 at 10:53 am (VIC time)

DATE OF WRITTEN RECORD:                26 June 2019

PLACE OF DECISION:  Melbourne

DECISION:They Tribunal sets aside the decision to cancel the applicant's student temporary class TU visa and in its place substitutes a decision not to cancel the applicant's student temporary class TU visa

Statement made on 26 June 2019 at 4:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances beyond applicant’s control – failure on course provider’s part – South Pacific Institute – inability to obtain evidence of completion – unable to progress to Bachelor’s course – decision under review set aside

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 14 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. In relation to case number 1812881 in the matter of Majinder Singh. The applicant is a citizen of India who seeks review of a decision made by a delegate of the Minister on 1 May 2018 cancelling his subclass 500 student visa pursuant to section 116 of the Migration Act.

4. His visa was granted on 24 March 2017 with an original expiry date of 30 August 2020 providing for approximately three years four months during which he would be permitted to reside in Australia for the purposes of fulltime 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 his stay in Australia. Specifically, he was to complete a Diploma and Advanced Diploma of Hospitality and Management following which he would enrol in and study for a Bachelor of Business.

5. When the visa was granted on 24 March 2017 he had already commenced the Diploma courses at South Pacific Institute during the operational period of a previous student visa and bridging visa that had been granted to him. The new student visa had been granted on the premise that the applicant would use it to complete the Diploma courses following which he would commence the Bachelor’s course at Stott's College on 24 July 2017 and finishing on 30 June 2020.

6. The delegate cancelled the applicant's visa on the basis the applicant had breached the condition of the visa which required him to continue to be enrolled in a registered course of study. The issue in this case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

7. He appeared before the tribunal on 14 June 2019 to give evidence and present arguments. The applicant's visa was subject to a number of conditions, as prescribed by schedule 8 of the Migration Regulations.

8. In the present case the issue is whether the applicant breached condition 8202. If the applicant breached that condition the visa may be cancelled pursuant to section 116 of the Act.

9. Condition 8202(2)(a) of the applicant's visa required that the applicant remain enrolled in a registered course.  In the delegate's decision record the delegate identified the period from 16 August 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.

10. The delegate's finding in this respect was 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 the international student studying in Australia.

11. 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 their visa has been issued. In particular, and of relevance to the present case, the database may be used by course providers to report they have cancelled a particular student's confirmation of enrolment, or COE, in a course for which they had previously enrolled and the reasons for doing so.

12. The PRISMS report obtained by the delegate indicated that the applicant's course provider Stott's College had terminated his enrolment in the Bachelor’s Degree course on 16 August 2017 due to the applicant's non-commencement of studies.

13. The department wrote to the applicant by letter dated 5 April 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. It specified 16 August 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 since that time. The applicant was invited to comment on these allegations before the department moved to cancel his visa.

14. The applicant provided a written response to the department on 11 April 2018. In that response he attempted to explain the reasons why he did not start the Bachelor’s Degree course. It is clear in that response he implicitly accepted the allegation that his enrolment had ceased as a result of his own decision not to commence his studies at Stott's College.

15. In his evidence before the tribunal on 14 June 2019 the applicant also conceded that he had been in breach of his student for the period alleged by the delegate. Accordingly, the tribunal is satisfied that the delegate was correct in reaching the conclusion that the applicant was in breach of condition 8202(2)(a) of the visa.

16. However, that is not the end of the matter. 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 and the exercise of this discretion. However, the tribunal is mindful that it should consider the circumstances of the 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, general visa cancellation powers.

17. In response to the notice of intention to consider cancelling the visa the applicant stated in his reply that he had always been a genuine student focused on only completing his courses. In support of that contention at the hearing the applicant produced evidence arising from his studies undertaken in the operational period of his first visa that was granted when he arrived in 2014 demonstrating that he had completed a Certificate IV in Commercial Cookery and hospitality courses at the Holmes Institute and South Pacific Institute.

18. So in that sense there is some evidence demonstrating that he is capable of being a good student. He said that due to many issues in his response to the Department in April 2018 that he was not able to complete the Diploma courses. In the course of the hearing before the tribunal today it was clear that he had made progress in the Diploma courses by at least completing and submitting some assignments to the South Pacific Institute for assessment.

19. As far as the applicant was aware by the time it was the middle of April 2017 the applicant had done all he could in terms of submitting his assignments for assessment in order to receive the formal awards of the Diploma certificates from the South Pacific Institute.  However, it appears issues arose and all of these seem to stem from the financial viability of the course provider and also flowing from that the ultimate requirement of Stott's College that before he commence the Bachelors course he must complete and produce evidence of completion of the Diploma courses.

20. South Pacific Institute's contract with the Victorian State Government had been terminated in early 2016. The issue associated with South Pacific Institute and a number of other private course providers for international students received significant media attention in 2016. As a consequence of inquiries, it appears the State Government became concerned at ‘dodgy’ course providers and it appears included in those that were listed to have their contracts terminated with the Victorian State Government, which allowed them State funding, South Pacific's contract was terminated. As a result, funding of the institute had no doubt diminished and it would see that this had a significant impact on leading to the ultimate closure of the college in late 2017 or early 2018. The applicant was apparently unwittingly caught in the demise of the college.

21. According to the applicant in or about April 2017 during the demise of the college it came to his attention that there was something wrong with him being able to obtain his Diploma certificates when he had a conversation with the course administrator. He asked the course administrator when he would be getting his Diplomas because he needed those Diplomas as proof that he had completed the courses, so he could start at Stott's College. The course administrator much to the surprise of the applicant said that he needed to do four more units.

22. Up until that point in time according to the applicant he had done all that he needed to.  The explanation given by the course administrator was that there had apparently been some updates to the course and that he needed to do four more units and pay $2,000 to the Southern Institute in order to do those.

23. The applicant was not satisfied with this response understandably and requested that an academic transcript of his results to date be provided by South Pacific Institute, so that he could take those results as evidence of at least partial completion and enrol at another course provider, so that he could do whatever he had to in order to get a Diploma from somewhere else. That, of course, would be so that he could then start in time at Stott's College. The response of the course administrator according to the applicant was that they would not provide him with his academic transcript.

24. The tribunal accepts the account given by the applicant at the hearing today, particularly in light of the appalling history that is evident from the demise of the financial situation of Southern Institute. The tribunal was also presented with evidence of that payment of $2,000, $500 for each of the four units. That is consistent with his account. He produced electronically a bank statement from the Commonwealth Bank of Australia demonstrating that on 21 April 2017 he had made an electronic funds transfer payment to the Southern Institute of $500 and on the same day he withdrew at a Melbourne ATM on Bourke Street the amount of $1,500, which the applicant says in total amounted to what he paid the Southern Institute.

25. The tribunal inquired as to why he paid cash and the applicant emphasised, and the tribunal also accepts, that the Southern Institute was always insistent that they preferred cash as a method of payment. In light of the State Government's comments on course providers such as the Southern Institute with whom they terminated a contract, the tribunal was inclined to accept the evidence of the applicant in this regard.

26. The tribunal also accepts the evidence that as a result of him paying that $2,000 he continued to stay with Southern Institute in the hope that at the end of completing these four units, which he was told he had to, he would eventually get his Diplomas and then quickly start up his Bachelors with Stott's.

27. The only problem with the applicant's evidence is that he took no steps to actually contact Stott's during this period to let them know that he was not able to start. But the tribunal is ultimately satisfied that things were really out of his control at this point in time and he was really trying to do the best he could in order to get the diplomas and then move onto the Bachelors.

28. He was in the tribunal's view led up the garden path by Southern Institute. All of this has resulted in the decision to cancel his visa, which is now the subject of review. The tribunal accepts that if his visa is cancelled he would find it very difficult returning home without an Australian qualification. It will cause him consequential hardship.

29. The tribunal is ultimately of the view that the reasons for him ceasing his enrolment arose principally from that which was out of his control. It is the tribunal's view that he should therefore not be unnecessarily punished by having his visa cancelled in these circumstances.

30. The tribunal has taken into account all other matters and they tend to operate in the applicant's favour. In all of the circumstances the tribunal considers that it is not appropriate to cancel the applicant's visa.

    DECISION

31. The tribunal sets aside the decision to cancel the applicant's student temporary class TU visa and in its place substitutes a decision not to cancel the applicant's student temporary class TU visa.

    Dr Jason Harkess
    Member