SINGH (Migration)

[2019] AATA 2331

SINGH (Migration) [2019] AATA 2331 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AMRIT PAL SINGH

CASE NUMBER:  1709516

HOME AFFAIRS REFERENCE(S):           BCC2017/274064

MEMBER:Mr S Norman

DATE:4 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 04 June 2019 at 5:22pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – breached condition – not enrolled in a course of study – failed to continue – not satisfied applicants present intention is to remain in Australia for purpose of study – financial supporters for his studies – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116(1)(b), 189, 198, 359AA
Migration Regulations 1994 (Cth), Schedule 8 Condition 8516, cls 573.231, 573.223(1A), r 1.40A, Public Interest Criterion (PIC) 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The Department delegate’s decision was not lodged with the Tribunal. However, the applicant did lodge with the Tribunal, the Notification of Cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) dated 21 April 2017 (and that set out why his Student visa was cancelled[1]).

   [1] Tribunal – from folio 3.

3. The delegate cancelled the visa under s.116(1)(b) of the Act, on the basis the applicant had breached condition 8516. 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 30 May 2019. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was (initially) represented in relation to the review by his registered migration agent. However by email of 22 April 2019, the agent sent the Tribunal a ‘Notice of ceasing to act as registered migration agent and notice of ceasing to be the authorised recipient’. The agent also advised they had forwarded the hearing invitation to the applicant (though they had not received a response when same was issued to the applicant’s last known residential address); and that they had called the applicant but did not have any success in reaching him. That being said, the applicant did attend the scheduled hearing.

6. 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

7. 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. Relevantly, to this case, these include the ground set out in s.116(1)(b) of the Act. 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.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

9. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 23 July 2014. By Notice of Intention to Consider Cancellation (NOICC) of that Student visa dated 29 March 2017,[2] the applicant was advised that according to the Provider Registration and International Student Management System (PRISMS) it appeared the applicant was no longer enrolled in a bachelors or Masters degree course and that he was not enrolled in a course of study that is a principle course specified for Subclass 573 visa by the Minister in an instrument made under r.1.40A. Therefore, it appeared that he had not continued to be a person who would satisfy either cl.573.231 or cl.573.223(1A); and as such it appeared he had not continued to be a person who would satisfy the primary criteria for the grant of the Student visa and had therefore breached condition 8516. Further, it appeared that his Student visa may be cancelled under s.116(1)(b) of the Act. The NOICC was returned to the Department (‘Return to Sender’) and received on 25 May 2017.[3]

   [2] Department – folio 12.

   [3] Department – folio 44.

10. At hearing, the Tribunal advised the applicant that the following information may be the reason or part of the reason for affirming the decision under review. After advising the applicant he may request further time within which to respond (no such request was made), the Tribunal advised that information on PRISMS indicated the applicant had ceased enrolment in a Bachelor’s degree on 6 April 2016 (for non-commencement of studies – being almost 12 months prior to the NOICC being issued). The Tribunal then advised the applicant this may satisfy it he had failed to maintain enrolment in a registered course of study and that he had therefore failed to continue to be a person who would satisfy the criteria for the Student visa (the first ‘s.359AA advice’).

11. The applicant then said his College was closing (where he had obtained his third Diploma – referred to below) and he wished to transfer to another education provider, though he also conceded that he did not again enrol in a Bachelor’s degree or other registered course after 6 April 2016.

12. At the Tribunal hearing, the applicant also explained that he completed some studies on 23 May 2017 and that the NOICC was emailed to him personally on 29 March 2017. He believed (words to the effect), he may have been engaged in exams at the time (though the course and exams were completed by 9 April 2017) and he said he did not have time to check his emails.

13. The Tribunal then put the second ‘s.359AA advice’. The Tribunal noted the NOICC was posted to him by registered post (as was stated on the letter[4]), and he was advised he was deemed to receive the letter seven working days after the date of the letter, and that he was to provide comment in writing within five days after he was taken to have received the letter. Further, the Student visa was cancelled on 21 April 2017, some three weeks after the email was sent to him. The applicant said he wanted to continue studying in Australia, that he could not as his visa was cancelled, and his family refused to send him money for further studies until after the Tribunal decision (assuming same may be successful). Be that as it may, based on the above, the Tribunal is satisfied the applicant was properly notified of the NOICC, and that he was provided adequate time within which to respond (other related evidence and submissions are discussed below).

    [4] Department – folio 22.

14. After then having considered the evidence, and as at the time of the delegate’s decision, the Tribunal is satisfied the applicant had failed to continue to satisfy either cl.573.231 or cl.573.223(1A); as he had breached condition 8516.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. 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’.

17. Regarding the purpose of the applicant’s travel to and stay in Australia, the evidence before the Tribunal includes that the applicant completed three Diploma courses after arriving in Australia (he arrived in August 2014):

    ·     Diploma of Business – 3/11/2014 / 31/10/2015

    ·     Diploma of Business – 2/11/2015 / 19/01/2016

    ·     Diploma of Leadership and Management -  11/04/2016 / 9/04/2017

18. The applicant said he commenced the third Diploma to build his skills prior to commencing a degree, but as noted herein, he ceased enrolment in a registered course on 6 April 2016. The applicant also said he did not know he was meant to maintain enrolment in a registered course. The Tribunal noted he would have been advised of his ongoing obligations when granted his Student visa. The applicant, who conceded he was able to speak to either a migration agent and or education agent, said that he may have possibly been told this, but it may have ‘slipped his mind’.

19. That being said, the Tribunal accepts the applicant completed the aforementioned three Diploma courses. However, given his failure to have undertaken any study since that time (the reasons for this are discussed below), the Tribunal is not satisfied the applicant’s present intention is to remain in Australia for the purposes of study.

20. Regarding the extent of compliance with visa conditions, the applicant has not complied with condition 8516 of his Student visa when he failed to maintain enrolment in an appropriate course of study.

21. Regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, at hearing he said he and his family would be disappointed in him. The applicant explained that his aunt and uncle were his principal financial supporters for his studies in Australia – though his mother and sister (amongst others) had also contributed. The applicant said that since he arrived in Australia, they (his aunt and uncle) had sent him money on two or three occasions (mainly payment for his prior studies but also for the Tribunal hearing). He also said his mother would be financially impacted if his Student visa was cancelled (which the Tribunal accepts is plausible) and he wanted to assist his family. He explained that his mother (who works as a beautician) had separated from his father (a truck driver). His sister is employed as an air hostess. However, and particularly after his parents had separated, the applicant wishes to financially assist his mother and sister. When asked, he said he had remitted monies to them in New Delhi, India, but had not done so for some time prior to the hearing. The (now 26 year old) applicant also explained that since arriving in Australia, he had worked consistently in a warehouse at Flemington Markets for around 20 hours per week (though after his Student visa was cancelled in April 2017, he has had some time off).

22. At hearing the Tribunal then noted that country information it had considered indicated that India has one of the fastest growing large economies in the world.[5] Also, that regarding education the country information stated:  

    India’s higher education system stands third in size in the world after the US and China with nearly 26 million students in over 45,000 institutions in the country. In the last decade the country has witnessed a particularly high growth rate in student enrolment at a CAGR of 10.8% and institutions at 9%. …  

    Indian higher education has been progressing at a fast pace adding over 20,000 colleges and about 8 million students between the ten year period 2001 - 2011. As of 2011, Indian higher education system is spread over 42 central universities, 275 state universities, 130 deemed universities and 90 private universities. … [6]

    [5] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Economic Overview’, p.8.

    [6] ‘HIGHER EDUCATION IN INDIA - Access, Equity, Quality’,  Obadya Ray Shaguri - EAN World Congress Scholar 2013, accessed 27 February 2019.

23. The Tribunal said it may find he could seek work commensurate with his skills (including those skills obtained in his three Australian Diplomas) in India; and or he could seek tertiary education in India (which the Tribunal noted may be cheaper than in Australia). The applicant did not dispute this but believed that tertiary education in Australia is more valued than that obtained in India, and an Australian qualification would enhance his prospects to care for his family in India.

24. Next, at hearing the applicant had also said that he was attempting to gain enrolment in a degree course when he received the NOICC. He was unable to continue his studies after his visa was cancelled. Given he had applied for permission to work after being granted his Bridging visa, when asked if he had undertaken any study (or applied to study) after his Student visa was cancelled, he said ‘no’. He said this was because his relatives refused to send him any money until after the Tribunal hearing (assuming same was successful). The Tribunal then noted it may appear his family did not trust him, though he disputed this and said he had hoped the review would take place sooner than it did. Be that as it may, this means the applicant has undertaken no study in Australia for over two years.

25. That said, the Tribunal proposes to accept the applicant and his family would be disappointed with him if he did not obtain tertiary education in Australia. I accept education in Australia may be more valued than tertiary education obtained in some (not all) Indian universities. However, after considering the country information, the Tribunal is satisfied the applicant could seek work commensurate with his skills in India (and earn presumably more disposable income, than he does as a part time worker in a warehouse at Flemington Markets). I also accept he may continue tertiary studies in India, if he chooses to do so.

26. Regarding the circumstances in which the ground for cancellation arose, when discussed at hearing, the applicant said (words to the effect) he did not know he needed to maintain enrolment in a bachelors or Masters degree course or a course of study that is a principle course specified for Subclass 573 visa by the Minister in an instrument. As noted above, he said it was possible he had heard this but it may have ‘skipped his mind’. However, at hearing, the Tribunal said it may not accept this was plausible. That was because advice about ongoing obligations for Student visa holders were made clear in the Department advice granting the visa. Further, the Tribunal notes the applicant said he had access to education agents or migration agents. Perhaps more importantly, Higher Education Student visas are granted to non-citizens to allow them to travel to and study in Australia. The Tribunal does not accept the applicant, who allegedly always wished to study a degree course in Australia, would be unaware of his obligation to maintain proper enrolment.  

27. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Based on the accepted claims herein, the Tribunal is not satisfied the applicant has a compelling reason to travel to or remain in Australia.

28. Next, if the applicant’s Student visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.

29. The Tribunal also notes that if the applicant’s Student visa is cancelled he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation (being from 21 April 2017).

30. After then considering all the evidence, given the applicant had failed to maintain enrolment in a registered course since 16 April 2017, given the Tribunal does not accept it is plausible the applicant misunderstood or did not know he was required to maintain enrolment in a registered course, and given the Tribunal is satisfied the applicant could seek work in India (including with those qualifications he had obtained in Australia), and presumably have access to more disposable income to assist his family in India, the Tribunal is satisfied it should exercise the discretion to cancel the applicant’s visa.

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

    DECISION

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mr S Norman
    Member