Singh (Migration)

[2019] AATA 3656

Singh (Migration) [2019] AATA 3656 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

CASE NUMBER:  1821720

HOME AFFAIRS REFERENCE(S):           BCC2018/1210759

MEMBER:Christine Kannis

DATE:27 May 2019

PLACE OF DECISION:  Perth

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

Statement made on 27 May 2019 at 6:46am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – applicant ceased studies – change to Vocational courses – family health concerns – decision under review affirmed   

LEGISLATION

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

CASES

Liu v MIMIA [2003] FCA 1170            

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 20 May 2019 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. 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. Relevant to this case, these include the ground set out in s.116(1)(b). 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.

   Did the applicant comply with Condition 8202?

7. On 13 June 2015 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since his enrolments in a Certificate IV in Work Health and Safety and a Diploma of Work Health and Safety were cancelled on 11 August 2017. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 11 August 2017. The Tribunal finds that he breached condition8202(2)(a) of his visa.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

   Consideration of the discretion to cancel the visa

10. 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’, as set out below.

11. On  2 July 2018 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

    Response to NOICC

12. On 16 July 2018 the applicant responded to the NOICC  and provided the following information:

    ·He arrived in Australia to study a Diploma of Business which would lead to a Bachelor of Business. He completed the diploma course at Phoenix Academy.

    ·When he realised he had started to lose interest in business he decided not to waste time and money on something he no longer felt passionate about.

    ·With careful consideration of his family he decided to study a Diploma of Work Health and Safety at Kingdom College. He studied there for one year and had been attending all his classes however he was struggling with a few units so he sought advice from student services.

    ·The course co-ordinator advised him to study an additional six months in the same course to become competent enough to fully understand the contents in which he was struggling. The course co-ordinator recommended he allow more time to understand the contents because he believed he (the applicant) had enhanced his knowledge and learning since having started this course. As far as he can remember, the course co-ordinator told him he had already issued him an ECOE for the course.

    ·He was not aware that his ECOE had been cancelled until he received the NOICC because he believed he had an ECOE and he did not receive an email about cancellation of his ECOE.

    ·Since receiving the NOICC he tried to get in touch with the owner of the college several times but he was not answering his calls.

    ·He believed he obtained admission into the college which was authorised under CRICOS without realising how unprofessional they were. The college refused to give any explanation regarding the issue. He believed the course provider and feels deceived by the college.

    ·Cancellation of his visa will ruin his future, his dreams and the dreams of his family.

    ·He intends to continue studying in Australia. The study he has undertaken here has immensely enhanced his learning skills.

    Evidence at hearing

13. The applicant told the Tribunal that he wasn’t aware his enrolment had been cancelled until he received the NOICC because he continued to receive emails from Kingdom College during the eleven months from the date of cancellation of his enrolment to the date the NOICC was issued. The applicant undertook to provide evidence of these emails following the hearing. 

14. The applicant said during that eleven month period he was trying to pass units he had previously failed. The Tribunal asked the applicant about the classes he was attending and the exams/assignments he was undertaking in that eleven month period. He said he attended classes two days per week in the second half of 2017 and three days a week in the first half of 2018. When asked how many units he studied he said six or seven subjects. When asked whether he sat exams or submitted assignments he said he submitted blank pages for assignments.

15. The Tribunal asked the applicant whether he received a mark or a grade for any unit during the eleven month period. He said he didn’t receive any results and therefore he believed he had failed. The Tribunal put to the applicant that even a “fail” is a result. He said he made a mistake in not realising that he was not enrolled. He was experiencing a bad time in 2017 and 2018 because one of his sisters was divorced in 2017 and another sister’s husband passed away in 2018.

16. The Tribunal noted that the applicant was granted a Subclass 573 visa which is a Higher Education Sector visa and that when he changed his course to a Diploma of Work Health and Safety he was no longer enrolled in a Higher Education Sector course. The Tribunal asked the applicant whether he discussed the change in his course level with the Department. He said he did not contact the Department and conceded that he made a mistake in not doing so. He said he did not intentionally undertake study at a lower course level.

17. The applicant said he comes from a large family. His brother is disabled and confined to bed. His aunty, grandmother and one of his sisters live with his parents in India. He wants to complete his study in Australia and return to India and takeover his father’s dragon fruit business. He said good money can be earned from agricultural business in India.

18. The Tribunal asked the applicant how a Diploma of Work Health and Safety would benefit his work in an agricultural business. He said he has a friend working for a company in India and this friend has told him that there is good money to be earned with this qualification in the company.

19. The applicant told the Tribunal that he cannot rely on just one skill to earn a living to support his large family and that is the reason he wants to complete a Diploma of Work Health and Safety.  

20. When asked about the hardship that may result from cancellation of his visa the applicant said it would be shock to his family. He wants to complete his study and return to India.

21. When asked what he has been doing since cancellation of his visa some ten months ago he said he has been sitting at home and he has been financially supported by one of his sisters and by his friends.

    Post hearing evidence

22. After the hearing the applicant sent the Tribunal an email, which he described in the subject box as a “screenshot” and which he described in the body of the email as an “email thread’. The information consisted of messages from “Kingdom”, “Lahni” and “Kim”. The emails were dated 17 July 2017, 16 October 2017 and 10 July 2018 x 5. Only one of these emails was dated in the eleven month period from cancellation of the applicant’s enrolment and the issuing of the NOICC. The email dated 16 October 2017 was from “Lahni Howard WHS Trainer”. The content of the messages was not provided however the Tribunal does not accept that a single email, in circumstances where the applicant was not submitting assignments and not receiving marks or grades, could reasonably form the basis for a belief that he remained enrolled in a course.

23. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

24. The applicant told the Tribunal his purpose in coming to Australia was to study Business. He was granted a Higher Education Sector visa however when his enrolment was cancelled he was undertaking study in the Vocational Education and Training (VET) Sector.

25. The applicant was not enrolled in a registered course (Higher Education Sector or VET) for eleven months. The Tribunal observes that the study which the applicant wishes to undertake and complete in Australia is not study for which his Subclass 573 visa was granted.

26. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. 

27. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said there were none. 

28. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

29. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.

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

30. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to his family however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

31. Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

32. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said he was not aware that his enrolment had been cancelled because he continued to receive emails from the education provider. The evidence provided following the hearing did not support this assertion. The email evidence provided following the hearing showed only one email was sent from Lahni Howard WHS Trainer on 16 October 2017.  The other emails in the thread were sent before cancellation of the applicant’s enrolment and after he received the NOICC.  

33. The Tribunal considered the applicant’s evidence that he attended classes and submitted assignments. No documentary evidence was provided to verify this evidence. The applicant’s evidence at hearing regarding the fact that he did not receive any marks or grades in the eleven month period was unsatisfactory. He said he believed he had failed the units he had undertaken. The Tribunal pointed that this period covered two semesters. The Tribunal does not accept that the applicant believed he was enrolled and that he failed all his units over two semesters despite not being notified of any results.

34. The applicant told the Tribunal that during the eleven month period he was trying to pass units he had previously failed. The applicant said he experienced bad times during the eleven month period because of events in his sisters’ lives. The Tribunal considers it likely that the applicant ceased to be enrolled because he failed units.

35. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

36. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

37. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    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

38. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour. 

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

39. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

40. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

41. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which is visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

42. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.