Singh (Migration)

[2023] AATA 4393

Singh (Migration) [2023] AATA 4393 (16 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amarjot Singh

REPRESENTATIVE:  Mrs Shefali Nandra (MARN: 1464717)

CASE NUMBER:  2211544

HOME AFFAIRS REFERENCE(S):          BCC2021/2274707

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 August 2023 at 10:36 am (NSW time)

DATE OF WRITTEN RECORD:                20 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 20 December 2023 at 11:20am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course of study – non-commencement and cancellation of enrolments – ground for cancellation conceded – travel and study history – one previous course completed, others not completed and enrolments cancelled – circumstances beyond applicant’s control – COVID pandemic, online study and depression – enrolment cancelled before switch to online classes and no medical evidence provided – strategic enrolment in two different courses after receiving department’s notice and before responding, later cancelled – inconsistent and implausible oral evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision of a delegate of the Minister for Home Affairs who on 1 August 2022 cancelled the applicant’s Student (Temporary) (Class TU) visa under Sec 116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the ground that the applicant had breached condition 8202(2)(a) because he had not been enrolled in a registered course of study during the period from 17 January 2020, when his enrolment in a Bachelor of Accounting at Group Colleges of Australia (GCA) was cancelled for non-commencement, to 9 May 2022, a period of about 2 years and 5 months (the relevant period).

3. At the hearing on 16 August 2023, the Tribunal made an oral decision to affirm the delegate’s decision and gave oral reasons for it.

4. On 3 October 2023, and more recently, the Department has requested a written reduction of those reasons.

5. What follows is the written record of those reasons.

   Background, some threshold aspects

6. The subject visa, which had been granted to the applicant on 25 September 2019, replaced an earlier TU-573 visa granted to him on 16 May 2015. There is no issue that these visas were subject to condition 8202, among others. Nor is there any issue that the applicant has been in breach of the condition during the relevant period.

7. The decision to cancel the visa was made on 1 August 2022.  The Review Application was filed on 9 August of that year and is therefore within time.

   Procedural aspects in the review

8. Just dealing firstly with some procedural aspects, at the time the Review Application was filed the applicant provided one other document, namely a copy of the decision under review, but he has not provided any other document in support of his case despite having been requested to do so on at least two occasions.

9. He did respond to the Hearing Invitation which was sent to him on 18 July 2023 by completing and returning to the Tribunal a Hearing Response form on about 10 August of this year in which he confirmed that he did not intend to rely on any documents. Nothing occurred during the hearing to suggest to me that he had any real difficulty in understanding what was being asked.

   The hearing and credibility issues

10. The applicant appeared at the video conference hearing to give oral evidence in support of his case. A Punjabi interpreter was on hand and the applicant on occasions had recourse to the interpreter to assist him with some of his evidence. He has a reasonable understanding of spoken English because he was well able to respond directly to my questions without going through the interpreter.

11. I was not impressed with his oral evidence. I will detail my reasons for this in a moment but, put shortly, parts of it struck me as quite implausible. Certainly, the evidence he gave about his parents not asking him anything about his academic progress in Australia when he went back to India to see them in early 2019 falls into that category. Other parts of his evidence were internally inconsistent, while at other times I had the impression that he was prevaricating or dissembling.

12. Overall, I am not prepared to accept much of his oral evidence on the critical issues unless it is corroborated by other more reliable evidence, is consistent with objective features, is inherently plausible, or consists of an admission against his interests.

    Other documentary aspects

13. In addition to the Tribunal file, I have been provided with a file from the Department which contains the decision under review, the NOICC sent to the applicant on 3 May 2022, his response sent on 10 May 2022, and other documents consisting mainly of academic records including COEs relating to prior enrolments in various courses.

14. I have also been provided with a copy of the applicant’s PRISMS record on which the delegate relied in the NOICC and for the purposes of his eventual decision.

15. In addition to that material, I have also seen an updated PRISMS record and his Movements Details.

16. The applicant has given me evidence which in some ways cannot be reconciled with PRISMS but I prefer his evidence on these aspects when in conflict if only because it constitutes an admission against his interests. 

17. Although PRISMS indicates that the applicant completed a Diploma of Leadership and Management in 2018 and a Certificate IV in Information Technology Networking in 2016 the applicant told me at the hearing that he did not in fact complete either of those courses.

    An overview of the cancellation process, including the delegate’s reasons

18. In the NOICC, a copy of which was sent to the applicant on 3 May 2022, after referring to the relevant provisions in Sec 116 of the Act and those in condition 8202, the delegate recites information in the PRISMS record which indicated to him that the applicant had not been enrolled in a registered course of study since 17 January 2020 and therefore had not complied with the requirements of condition 8202(2)(a). The applicant was invited to respond to the NOICC within the usual 5 working days, which he did.

19. In his undated letter to the Department, apparently sent on 10 May 2022, he set out reasons why his visa should not be cancelled. He accepted that his enrolment in the Bachelor of Accounting at GCA was cancelled on 17 January 2020.  He goes on to contend that this was the result of matters which were neither intentional nor deliberate on his part and that the cancellation took place in circumstances beyond his control.

20. He said that while pursuing his bachelor’s degree at GCA he went back to India in January 2020 to see his parents and that later events overtook him. The onset of COVID in Australia meant that and he was unable to continue his study in that course even though he was aware that GCA switched to online classes shortly after COVID impacted here in about March/April 2020.

21. He went on to give other reasons why his visa should not be cancelled. He referred to the fact that he had recently enrolled in a Certificate III in Bricklaying and a Graduate Diploma of Management at different providers, and he provided to the delegate COEs for each of these courses.

22. The difficulty with these enrolments, as the delegate was to later point out in his decision, is that they did not take place until after he received the NOICC. The COE for the Bricklaying course was generated on 9 May 2022 and the one for the Management course on 6 May 2022. 

23. In response to the question why his visa should not be cancelled, the applicant simply alludes to the fact that he was currently pursuing his studies in the Bricklaying course and says that he wanted to go on and complete that course and the Graduate Diploma, that a cancellation of his visa would shatter his dream of starting his own business in the construction field, and that it would also upset his parents because they had high hopes for him finishing his studies here and going back to India to start that business.

24. He went on to contend that he had learnt from his mistakes and, if he were to be given another opportunity, said that he would complete his education here and go back to India to reunite with his family and run what he hoped would be a successful construction business with the financial backing of his family.

25. The decision to cancel his visa was made and notified on 1 August 2022. The delegate acknowledged having received the applicant’s response on 10 May of that year, noted that he did not dispute that a ground for cancellation existed on the basis that he had not maintained enrolment in the bachelor’s course after January 2020 and had not been enrolled in any other registered course of study since that time.

26. After finding that a ground for cancelation consequently existed, in Part D of his decision the delegate deals with the issue of whether the applicant’s visa should be cancelled. The delegate set out the substance of the applicant’s response to the NOICC and went on to consider and weigh the various matters which under the legislation he was required to address.

27. The only real issue on the review, and it is one which the delegate also resolved adversely to the applicant, was the question of whether the visa should be cancelled having regard to those matters.

    Evidence and findings on the review

28. In the course of the applicant’s oral evidence I went through some of his personal history and much of his academic history in Australia. His conduct in relation to his studies here is very unimpressive to say the least.

29. The applicant was born in India in 1995. He told me, and I accept, that he finished his secondary schooling in 2012. I asked him what he did after he finished his secondary schooling and before he came out here some three years later. His evidence was to the effect that he only completed an English test.  He did not work apparently at all during this period.

30. He was granted a TU-573 visa, which had 8202 attached, in May 2015 to study a package of business courses leading to a Bachelor of Information Technology. He arrived in Australia for that purpose in early July 2015.  He told me today, and I accept, that he began studies in a Certificate III in IT Networking (the CIII) in about July of that year completing that course towards the end of that year. He did not go on to complete the next course in the package, a Certificate IV in IT Networking, although he said that that he passed some units in this course. He ultimately, after some prevarication, accepted that his enrolments in the CIV, the Diploma and the bachelor’s course were cancelled in September 2016.

31. He then enrolled in a Diploma of Leadership and Management at the Wentworth Institute in about October 2016 and began studies in that course but according to his evidence, which I accept, he did not complete this course.  He said that he passed about half the units in the Diploma but was unable to complete the course before his enrolment was cancelled in about June 2018. This means that he was studying this course for about one year and eight months but was unable to complete any more than half of it.

32. His enrolment in a Bachelor of Business, apparently at the same provider, was also cancelled for non-commencement in July 2018. He told me, and again I accept his evidence on this because it is consistent with the details in his Movements record, that he went back to India to visit his parents in January 2019. He was there for about five weeks, apparently.  He initially told me that he went back there to attend his brother’s marriage but later said that he went back to see his parents and to attend a friend’s marriage. This is but one example of his willingness to alter his evidence as he went along. I must treat with a good deal of circumspection evidence given by a witness who changed his evidence as willingly as this one did. But, in any case, I do accept that he returned to India for a period of about five weeks in the early part of 2019, that he saw his parents during this time and that he stayed with them for some of this period.

33. I asked him whether he informed them about his lack of progress with his studies up to this point. He said that during this visit he never told his parents that he had only completed a Certificate III in IT Networking by this stage. When I asked him why he did not bring his parents into the picture he told me that they were uneducated, and they did not ask him. This evidence strikes me as inherently implausible. By this stage he had been in Australia for 3.5 years on a student visa and had not seen them at all. To suggest that his parents were not interested in his academic progress here borders on the incredulous.

34. In any event he re-entered Australia in early February 2019. He told me that his enrolment in a Diploma of Accounting was cancelled for non-payment of fees on at least two occasions, in February and May of that year. He told me that he passed two units in this course but I doubt whether he did absent any corroborative material to this effect.

35. His enrolment in a Bachelor of Business was also cancelled for non-commencement in May 2019, as was his enrolment in a Bachelor of Accounting in June of that year. It would appear that these higher-level courses, or at least one of them, were part of the same package.

36. Thus, by this stage he had enrolled in numerous courses in disparate fields and had completed only one of them, the CIII a six-month course in 2015.

37. Despite this abysmal academic record, in August 2019 he sought the subject TU-500 visa to study an English course and a Bachelor of Accounting at GCA, courses which he had enrolled in earlier that month, and was granted the visa on 25 September 2019.

38. He told me, and I accept, that his enrolment in the General English course was cancelled for non-payment of fees on 23 November 2019. He went back to India in December 2019, this time to attend his brother’s marriage, he said. He said that his earlier evidence given for this visit was wrong, that in fact he went back to India to attend a friend’s marriage. I have some difficulty with this explanation, but in any event not a lot turns on it. I accept he went back to India in late 2019 because his Movements record confirms it.

39. He returned to Australia on 20 February 2020. By this stage his enrolment in the bachelor’s course at GCA had been cancelled for non-commencement on 17 January 2020, a fact which is articulated in the NOICC and in the decision under review.

40. The NOICC was served on him on 3 May 2022.  As the delegate noted in his decision he did not enrol in the Certificate III in Bricklaying and the Graduate Diploma of Management (Learning) until shortly after he received the NOICC.  The COEs for these two courses confirm that he enrolled in them on 6 and 9 May 2022, shortly after he received the NOICC and shortly before he responded to it on 10 May of that year.

41. The NOICC response contains numerous self-serving assertions which I cannot accept at face value. Without wishing to dwell on the point he says that he had been studying for the Bachelor of Accounting at GCA when he went back to India in January 2020. The problem with this evidence is that according to the COE for this course it did not commence until 20 January of that year. Later in his oral evidence he told me that in fact he never actually attended any classes in this course, either in person or online. 

42. In the NOICC response he said that he was aware that GCA switched to online classes shortly after COVID impacted Australia. This was in about March/April of 2020. But other evidence clearly establishes that his enrolment in this was cancelled on 17 January of that year.

43. He goes on to say in the NOICC response that COVID impacted himself and his family, that he was depressed at the time, that he was worried about his parents. I have no doubt that the applicant would have been concerned about them, particularly in the early stages of COVID but unless an applicant comes forward with credible medical evidence to establish that COVID impacted them in such a way as to compromise their ability to engage in productive studies the Tribunal is ordinarily unable to accept self-serving assertions to this effect. 

44. In this case the applicant has made no attempt at all to provide any satisfactory evidence that COVID had that effect on him. There is certainly no medical evidence along these lines and I do not accept his self-serving assertions that it did. There is no other credible evidence to suggest that he was unable to engage in productive studies because of COVID. Even if he was unable to engage in those studies unless there is evidence to the effect that his ability to function effectively was also compromised an applicant is expected to act responsibly in these circumstances and take the necessary steps to regularise an enrolment position by deferring studies and/or to explore other options with the department. In this case the delegate pointed out in his decision that the applicant could and should have done these things if he felt that he was unable to continue with his studies. There is no suggestion that the applicant in this case took any steps in this direction. He did give evidence to the effect that he later tried to persuade GCA to reinstate his enrolment but this request, understandably enough, went nowhere.

45. In his oral evidence he went so far as to suggest that when he informed his parents about the refusal of the College to reinstate his enrolment in the Bachelor of Accounting his father suggested that he study a trade course. If this in fact took place it most probably did not occur until after he received the NOICC because it was not until after he received this document that the applicant took any steps to enrol in such a course.

46. The applicant had waited for a a period of more than two years before he took any steps in that direction. I infer that in view of what he had said earlier he is unlikely to have told his parents the true position until he received the NOICC. 

47. The applicant stated in the NOICC response, and he reiterated as much in his oral evidence, that he had always been inclined to study a trade course. There is some work history which reinforces this evidence. He told me that he worked as a bricklayer on a part-time basis from about July 2015 to April 2022 but the evidence he gave about this is rather vague and unsatisfactory. I think he has done some bricklaying, but I do not accept that he performed this kind of work on a regular basis. It appears to me that he has done some work on a casual basis for a friend or a relative, I think he said. This tends to suggest that he has some interest in a career in the construction field but I do not think it is the kind of work which carries much significance when it comes to assessing whether he genuinely wants to study a bricklaying course here for the purposes of establishing a construction business in India, which is basically what he has suggested in the NOICC response. 

48. I would have thought that, if the applicant really wanted to pursue a career in the construction field, he would have enrolled in a bricklaying or other trade course long before he did. The fact that he enrolled in numerous courses over a considerable period none of which can be said to relate directly or indirectly to a trade and then waits until he gets the NOICC to enrol in a bricklaying course speaks for itself. 

49. I do not accept he genuinely wants to establish a career in this field. It appears to me that his eventual enrolment in a bricklaying course was strategic, and an afterthought. I am not convinced by what he said in the NOICC response about wanting to establish a career in this field and his oral evidence is equally unconvincing. I do not accept that he has a genuine plan along these lines which he still wants to implement.

1. He goes on to say in the NOICC response that cancellation of his visa would shatter his plans of starting his own business and it would affect his parents.  I accept that cancellation of his visa would result in disappointed expectations, certainly on the part of his parents, but I am unable to find on the evidence that I have read and heard in this case that the applicant would be greatly affected by it. 

2. One would have thought that if the applicant was going to be disappointed at the cancellation of his visa, he would have gone about his studies very differently to what in fact he has done. At the end of the day the applicant has only himself to blame. He is in no small way the author of his own harm and must, in my view, accept responsibility for his conduct. 

3. He told me today that his enrolments in the CIII in Bricklaying and the Graduate Diploma of Management were cancelled in September 2022, not long after his visa was cancelled on 1 August of that year. PRISMS confirms the cancellations, but it contains no other details. There is no evidence that he has made any attempt to reinstate his enrolments in those courses or to enrol in any other courses since September 2022.

4. I asked him today what he has been doing here since those enrolments were cancelled. He said that he had been receiving some financial support from his parents for his living expenses and perhaps from his brother who resides in Canada. He has not been studying, has not taken any steps to do so and apparently has not been working since April 2022 when he last worked as a bricklayer. I would have thought that if he was really interested in establishing a career as a bricklayer, he would at least be looking for casual work in that trade. 

5. I take notice of the fact that the construction industry in Australia is presently very strong and has been for at least 12 months. There seems to be ample work available for casual bricklayers, for example. 

6. He also told me today that he has informed his parents of the cancellation. It is not clear to me just when he did this but whenever it was, they were angry with him, he said. This is unsurprising given his very poor academic record. I accept that they would have been upset but, as I have already indicated, I am not prepared to find that the applicant would suffer any real disappointment in these circumstances.

7. To suggest as the applicant did in his oral evidence that he does not have a good academic record is underplaying it considerably, in my view. I suggested to him that his record can only be described as appalling but he preferred to distance himself from this description.

8. Turning then to the matters which I am required to consider under the legislation in order to resolve the issue of whether the applicant’s visa should be cancelled I accept, as the delegate did, that the applicant came out to Australia to study but I do not accept, given his appalling academic record, that his purpose in remaining here has been to study. What he has done in relation to his studies virtually since he arrived here simply does not enable me to form that view. I regard this factor to have significant adverse weight.

9. The non-compliance with 8202 is in this case, on any view, very extensive. He has been in breach for a long time.  Even when the delegate was looking at it the breach was something in the order of two years and three months.

10. As is well known, condition 8202 is a mandatory and fundamental condition for the grant of a student visa. There is no evidence to suggest that the applicant was unaware of it and, to the contrary, given that his previous student visa was granted on the same condition I can only infer that he has been at all relevant times aware of the need to maintain enrolment in a registered course of study. This extensive non-compliance is wholly unexplained on the evidence which I am prepared to accept. 

11. I do not accept that COVID was a factor in this case and the applicant has come forward with no other explanation for this long period of non-enrolment and he has not engaged in productive studies, on my reading of the evidence, since he completed the CIII in late 2015, now almost eight years ago. I also give these matters considerable adverse weight.

12. As to the circumstances in which the ground for cancellation arose, I have already dealt with these. I do not accept that COVID impacted on him in such a way as to compromise his ability to study. He has simply wandered off into the wilderness even though, on his own evidence, he was aware that GCA was switching to online learning. He could have at least made some attempt to engage with the course in that format but showed no real interest in doing so. He has enrolled in at least three bachelor’s courses in disparate fields and not engaged in any of them, nor has he explained to my satisfaction why. His other enrolments at the vocational level, apart from the CIII, also went nowhere. I give these matters significant adverse weight.

13. I agree broadly with the weight which the delegate attributed to the other factors referred to in the decision. In relation to these not much has changed since the delegate cancelled the visa in August 2022. The only additional thing which has happened is that his belated enrolments in the two courses were also cancelled in September of that year. The applicant has simply done nothing since then to re-establish his academic program if it can be so described.

    Summary and conclusion

14. Overall, this is a review case which has very little going for it. The circumstances in which the ground for cancellation arose do not assist the applicant and indeed nothing which he has done since the delegate made his decision can be said to reinforce his review case.

15. Attributing weight to the relevant circumstances at the discretionary level I am well satisfied that the reasons for cancelling the applicant’s visa clearly outweigh the reasons for not cancelling it.

16. I thus conclude that the applicant’s student visa should be cancelled. 

    DECISION

17. The Tribunal affirms the decision under review.

    Michael Bradford
    Member