Singh (Migration)

[2019] AATA 4405

Singh (Migration) [2019] AATA 4405 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amritpal Singh

CASE NUMBER:  1821883

HOME AFFAIRS REFERENCE(S):           BCC2018/1295772

MEMBERS:Rachel Westaway (Presiding)

Amanda Pearson

DATE:12 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 June 2019 at 4:54pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – lack of academic progress – applicant changed to vocational courses – relationship breakdown – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 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 applicant was granted a student visa on 14 May 2015 and arrived in Australia that same month.  The applicant is from India and came to Australia with the intention of studying a Certificate IV in Accounting, a Diploma of Accounting and a Bachelor of Accounting.

3.    The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course from 4 October 2017 until 4 July 2018 and as such breached condition 8202(2)(a). In applying for review to the Administrative Appeals Tribunal, the applicant also provided a copy of the delegate’s decision. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    The applicant appeared before the Tribunal on 7 June 2018 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. 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?

7.    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).

1. On 7 June 2019 the applicant provided the Tribunal with the following documents to support his case:

   ·A confirmation of enrolment for a Certificate IV in Commercial Cookery course for the period from 15 September 2017 to 14 March 2018;

   ·A confirmation of enrolment for a Diploma of Hospitality Management course for the period from 15 April 2018 to 14 October 2018;

   ·A confirmation of enrolment for an Advanced Diploma of Hospitality Management course for the period from 15 November 2018 to 14 November 2019;

   ·A written reference from Ms Anna Anders dated 6 June 2019;

   ·An untranslated death certificate for the applicant’s uncle, Mr Sahib;

   ·A confirmation of Aviation Reference Number (ARN) – Amritpal Singh 1044419

   ·Australia National Airline College Fees and Charges information sheet as at February 2018;

   ·Facebook messages from a “Jessie”, the applicant’s ex-girlfriend;

   ·An ANZ goMoneyAu $600 transfer to Jessica Hardie from the applicant’s ANZ Access Advantage bank account; and

   ·An ANZ goMoneyAu $1000 transfer to Jessica Hardie from the applicant’s ANZ Access Advantage bank account.

2. Ms Anna Anders, a friend of the applicant for the past 2.5 years was a witness at the hearing.

3. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

4. The applicant provided the Tribunal with a copy of the delegate’s decision which outlined that the Provider Registration and International Student Management System (PRISM) indicated that the applicant had not been enrolled in a registered course from 4 October 2017 to 4 July 2018. The delegate cancelled the visa on 25 July 2018. The Tribunal discussed this with the applicant and he confirmed this to be correct. The applicant did supply other certificates of enrolments as noted in paragraph 8 above, however he advised that he did not progress with these courses and he confirmed he was not enrolled from 4 October 2017 to 4 July 2018. On the evidence before the Tribunal and by his own admission, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8201(2) for 9 months before the visa was cancelled.

Consideration of the discretion to cancel the visa

1. 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’

   Background evidence taken at hearing

2. The applicant arrived in Australia in May 2015.  He was born in India on 22 October 1994 and is 24 years old. He is single and does not have children.

3. In relation to his family background, the applicant informed the Tribunal that his father works for the Indian government as a drug inspector.  The applicant’s mother is a preschool teacher.  He has a brother living in Canada and an adopted younger sister who is 8-9 years.

4. Prior to arriving in Australia, the applicant had studied to be a diesel mechanic.

5. The applicant explained to the Tribunal that he came to Australia from India to study a packaged course that included a Certificate IV in Accounting, a Diploma of Accounting and a Bachelor of Accounting.

6. The Applicant confirmed he had been in Australia for 4 years and had not returned home to see his family. He also confirmed that his family had not visited him here in Australia. His objective to coming to Australia was that his family wanted him to study.

7. The applicant told the Tribunal that he enrolled in the Certificate IV in Accounting course. The applicant further told the Tribunal that he attempted all units, attended all classes and did not miss a single class but did not pass this course.  The explanation provided to the Tribunal by the applicant as to why he did not pass was that he found the course difficult and people had taken his money. 

8. The applicant was asked who took his money. He told the Tribunal that he commenced a relationship with Ms Jessica Kae Hardie at the beginning of 2017. He told the Tribunal this was his first serious girlfriend and the relationship lasted for 1.5 years. The applicant spoke about Jessica being demanding and wanting money from him.  He said she had used him and that whilst being in a relationship with her, he told the Tribunal that he was not able to focus and felt manipulated in the relationship. 

9. The applicant also claims he was living with bad people who played a lot of music and they had asked him for a loan of money but they never returned the money when he asked them to do so. He said he felt like a fool from these bad experiences and became too stressed because of his lack of maturity to focus his attention on his studies.

10. The applicant claimed that he is now living with Mr Singh who is born in Australia and a support person.  He claims Mr Singh has helped motivate him to study. 

11. In response to the Notice of Intention to Consider Cancellation dated 4 July 2018, the applicant claimed he had difficulties studying because of the death of his uncle. During the hearing, the applicant mentioned he was very close to his uncle as he had lived with him.

12. He subsequently enrolled in a Certificate IV in Commercial Cookery course, Diploma of Hospitality Management and Advanced Diploma of Hospitality Management course. However, he did not complete any of these courses.

13. Since arriving in Australia, the Applicant has not completed any courses in Australia.

    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

14. The applicant explained throughout the hearing that he wanted to have a good education which would set him up in India and make his family proud and that is why he came to Australia. He told the Tribunal that if his visa was cancelled, that it would be very difficult for him because his parents had spent a lot of money for him to be able to study in Australia and it would hurt his parents if he returned to India with no further qualifications.

15. The applicant claimed his parents are aware his visa has been cancelled. However, he has told the Tribunal that he now wants to study aviation as he is good at maths and physics and his father had always wanted him to study this course.  He told the Tribunal that his parents would support him studying aviation in Australia and are prepared to fund the AUD E$80,000 course fees. If he is not permitted to remain in Australia, he will not be able to undertake the course.

16. The applicant was asked by the Tribunal if he could enrol in aviation in India. The applicant responded that it would be difficult to do so as the colleges had problems with drugs and gangs.  He also told the Tribunal that it was difficult to obtain an aviation place as there were limited places and the Colleges take bribes from families.   

17. The applicant expressed a need to remain in Australia to complete his studies because his future will be brighter and he does not want to hurt his parents. The applicant stated he needs a chance.

18. The applicant has indicated that he does not want the Tribunal to cancel the visa because he wishes to study aviation. The applicant further claimed that if he is prevented from studying in Australia because his visa is cancelled, then his future will be ruined. The Tribunal gives these reasons minimal weight as the applicant can reapply to study in Australia after the exclusion period.

19. The Tribunal gives limited weight to the applicant’s concerns pertaining to educational difficulties in his country and the stress and pressure he may feel if he has to return to India. However, the Tribunal appreciates the significance of obtaining a student visa for the applicant and his family, but it does not operate to ameliorate the applicant for a lack of prioritising his studies because of his lack of maturity and or past bad decisions.  

    
    
    

    The extent of compliance with visa conditions

20. The applicant has stated that he has complied with all other conditions on his visa.  There is nothing before the Tribunal to indicate that this is not the case.  The Tribunal gives this some weight in favour of the applicant and not cancelling the visa, however remains mindful that it expected that all visa holders adhere to the conditions on their visa.

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

21. The applicant explained that if his visa is cancelled then it will hurt his parents as they have spent a lot of money and he will not be able to face them in India.

22. He also explained that his future will be ruined if he is not able to study in Australia as his chosen course of aviation has very limited positions in India and the Universities who offer these courses are subject to bribes.

23. The applicant also claims that his relationship with Ms Anna Anders, his friend in Australia, and her three sons, may also be affected. Ms Anders was a witness for the applicant. She told the Tribunal that she met the applicant 2.5 years ago via a mutual friend. She stated that the applicant had stayed with her, her husband and their three boys frequently and that the applicant had become part of their family. She claimed the applicant loved Australia and had been through rough times, had a kind heart and had been misled by friends and by his ex-girlfriend, Ms Jessica Hardie.

24. When Ms Anders was asked if she and her family would visit the applicant in India if the applicant’s visa was cancelled, she told the Tribunal that she and her boys would like to visit him.  However, she was unsure if the applicant would return to India as she believed he was scared to return to India because of the disappointment that his Indian family would experience if his visa was cancelled. 

25. The Tribunal accepts that the cancellation of a visa is disappointing. It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

26. The Tribunal also accepts that the hardship is felt by family members who may also feel let down and disappointed. 

27. The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing.  However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment.  Whilst appreciating the hardship the applicant, Ms Anders, her boys and the applicant’s Indian family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

    
    
    

    Circumstances in which the grounds for cancellation arose

28. The applicant told that Tribunal that he missed his family and wants to return but is scared to face his family because a cancellation of his student visa will disappoint them.

29. He told the Tribunal when he first moved to Australia that he lived with bad company who often played loud music and these living arrangements were not conducive to studying. He claimed that he had to share a room and that it was bad as it was messy and the man he shared with was drug addicted. During that time, he claimed he also loaned friends money which affected his ability to pay his course fees.

30. He also told the Tribunal that he met Ms Hardie at the beginning of 2017.  She was his first relationship and it lasted for 1.5 years. He claimed that she was an Australian citizen.  He stated that he spent a lot of time with her and did not prioritise his studies. During the course of the relationship he further stated to the Tribunal that Ms Hardie began to annoy him and cause him stress. 

31. He subsequently met Ms Anders who was nice and provided guidance and support and helped him leave his girlfriend and deal with the emotional difficulties he faced from separating from Ms Hardie and his new living arrangements.

32. He claimed that Ms Anders advised him to start focusing on his education rather than his relationships. The applicant looked at completing an Aviation course. After examining the course at the Moorabbin airport operated by Mr Craig McKenzie, he commenced the application process. He told his parents and asked them to financially support him.  His parents agreed to do so. He attempted to obtain admission in the Bachelor of Aviation course with the Royal Melbourne Institute of Technology; however, he was advised that his visa had been cancelled.

33. The applicant also claimed that his uncle had been sick 10 years prior to his death on 17 December 2017.  He told the Tribunal he had his leg amputated, suffered diabetes, kidney failure, and finally liver cancer. His uncle’s death occurred during the period that the applicant was not enrolled in a registered course. He told the Tribunal that he had previously lived with his uncle and had spent more time with him than his father.

34. The Tribunal acknowledges that the applicant has stated he wishes to study in Australia. The Tribunal has given some weight to his claim that he experienced difficulties adjusting to his study environment, his relationship difficulties and the death of his uncle. However, the applicant has not completed any courses whilst he has been living in Australia despite stating to the Tribunal that he is living with someone who he claims has motivated him to study.  The Tribunal does not accept this equates to a compelling need to remain in Australia in light of the period of time in which the applicant has remained in Australia and has never studied. The Tribunal accepts that the culmination of a series of adverse circumstances of a personal and psychological nature, specifically, difficulties arising from his study environment in Australia, his relationship breakdown with his first girlfriend and the illness and death of his uncle may have caused the applicant pressure and stress. However, appreciating there would have been pressure and stress, student visas are granted for the purposes of studying and achieving a qualification.  Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach.

    Past and present conduct of the visa holder towards the Department

35. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

    
    
    

    Whether there would be consequential cancellations under s140

36. This is not relevant to the applicant.

    
    
    

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

37. In the event that the applicant’s visa is a cancelled he would need to obtain a bridging visa to ensure he is lawful until he makes arrangements for his departure. The applicant could avail himself of migration advice. The Tribunal raised with the applicant the consequences of a cancellation and the fact that he would face a three year exclusion period from applying for another visa. The applicant was concerned that this period of time was extensive and he would be in ‘limbo’ and it would appear a waste of time and he would be unable to study.

38. The applicant told the Tribunal that he felt his life was going too fast and he had wasted the past 4 years of his life here in Australia. Whilst the Tribunal appreciates the applicant now is remorseful for his lack of drive and determination to study in Australia, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.  

39. The Tribunal appreciates that the applicant would face a three year exclusion period and would need to ensure his immigration status was lawful however these are the natural consequences of a cancellation and as such, the Tribunal gives this minimal weight in favour of the applicant.

    
    Australia’s International obligations

40. There is nothing before the Tribunal to suggest that the cancellation of the visa holder’s visa would breach any international obligations.  The Tribunal places no weight on this in favour of the applicant.

    
    
    

    Any other relevant matters

41. Ms Anders indicated to the Tribunal that the applicant suffered kidney stones 8 months ago. As this medical condition occurred outside the period when the applicant was not enrolled in a registered course of study and this medical issue no longer exists, the Tribunal places no weight on this in favour of the applicant.

1. Ms Anders also suggested that the applicant has been very down and his personality has changed with the concerns he has pertaining to his immigration issues. The Tribunal understands that such a period would be stressful on the applicant. There is no medical evidence before the Tribunal to suggest that he requires treatment or that he needs to remain in Australia and as such the Tribunal gives this no weight.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Rachel Westaway
Senior Member

Amanda Pearson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.