Singh (Migration)

[2019] AATA 3657

Singh (Migration) [2019] AATA 3657 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satwinderpal Singh

CASE NUMBER:  1803419

HOME AFFAIRS REFERENCE(S):           BCC2017/4009572

MEMBER:D Shirrefs

DATE:23 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 May 2019 at 5:36pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – genuine temporary entrant – gap in studies – family health concerns – 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 1 February 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course, in breach of condition 8202 on his visa, and therefore that the applicant had not complied with a condition of his visa. The delegate considered that the factors against cancellation did not outweigh those in favour and cancelled the visa.  A copy of the delegate’s decision was provided to the Tribunal (AAT folios 31 to 36).

3. 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 29 April 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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. 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?

8. 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).

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

10. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) letter on 15 January 2018 (AAT folios 34 to 36).  The delegate’s decision notes a response was received on 29 January 2018, which agreed there are grounds for cancellation.

11. As set out in the delegate’s decision, the Provider Registration and International Student Management System (PRISMS) indicated that the applicant was not enrolled in a registered course from 28 March 2017.  The documents suggest the applicant finished studying the Diploma of Leadership and Management on 26 March 2017 (AAT folio 39).  The applicant stated in his Response to Hearing Invitation (AAT folio 42) (Hearing Response) that he has “studied from July 2014 till March 2017 continuously”.  He agreed at the Hearing that he had not been enrolled from March 2017 until 18 January 2018, when he enrolled in a Bachelor of Business at Acknowledge Education (Acknowledge).

12. It follows that, at the time of this decision, on the evidence before the Tribunal the applicant was not enrolled in a registered course from 26 March 2017 to 18 January 2018.  Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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’.

14. The delegate’s decision notes that the applicant’s response to the NOICC included copies of:

    a.the applicant’s passport:

    b.CoE 963D7F58 – Bachelor of Business created 18 January 2018;

    c.CoE 64481534 – English Language Programs for International Students (ELPIS);

    d.CoE 64482C32 – Diploma of Business and Commerce Studies;

    e.CoE 6644F893 – Bachelor of Business

    f.Completion – General English Language Program, TAFE Gold Coast;

    g.Completion – Certificate IV in Business and Academic results, Australian National Institute of Business (ANIB);

    h.Completion – Diploma of Leadership and Management and Academic Results, ANIB;

    i.the applicant’s grandfather’s Death certificate (Punjabi and certified translation to English);

    j.photo ID of the applicant’s father; and

    k.a written response by the applicant.

15. The response to the NOICC provided background and addressed factors that went to the question whether the visa should be cancelled.  These are considered below.  The applicant came to Australia on 8 June 2014, having been granted his visa on 16 May 2014.  He was enrolled in English language programs and the Diploma of Business and Commerce at Tafe Gold Coast and in the Bachelor of Business at Queensland University of Technology.

16. He completed his English language programs on 12 December 2014, but his CoE in the Diploma of Business was cancelled for unsatisfactory attendance and his Bachelor of Business was subsequently cancelled. He continued to be enrolled in the following registered courses of study at ANIB:

    a.Certificate IV in Business – 29/6/2015 to 27/12/2015;

    b.Diploma of Leadership and Management – 7/3/2016 to 28/10/2016 (approved deferral 29/10/2016 to 6/12/2016) and 12/12/2016 to 26/3/2017.

17. The applicant returned to his home country on 29 October 2016 to visit his ill grandfather, who subsequently passed away on 3 November 2016, and the applicant returned to Australia on 6 December 2016.  After his grandfather’s death his father and uncles were involved in a dispute about the inheritance of property, which he said he played an important role in resolving.  The applicant said these family problems contributed to his failure to focus on his studies.

18. The applicant ceased to be enrolled from 26 March 2017.  He says that he was concentrated on his family and due to feeling dejected and lonely, he moved to Melbourne from Queensland in September 2017 (AAT folio 42).  He took advice from a migration advisor in December 2017 and became aware he should have been enrolled in a bachelor degree course.  He was not able to enrol in a Bachelor of Business due to the holiday period and enrolled in a Bachelor of Business at Acknowledge scheduled to start on 19 March 2018. 

19. In his Hearing Response he provided copies of the following documents:

    a.his passport:

    b.Notice of the Grant of a Student (Class TU) Higher Education Sector visa;

    c.a signed response to the request from the Tribunal;

    d.submission request from Tribunal;

    e.records of his studies in Australia;

    f.a CoE for the Bachelor of Business at Acknowledge;

    g.the NOICC and the Notice of Cancellation from the department; and

    h.grandfather’s Death certificate (Punjabi and certified translation to English).

20. The Hearing Response reproduces most of the response to the NOICC verbatim.  In his Hearing Response, as well as revisiting the matters canvassed in his response to the NOICC set out above, the applicant set out Condition 8202 and the facts concerning the department’s cancellation of his visa on 1 February 2018.  He submits that “my grandfather’s death and the situation that was not my creation, took over me” (AAT folio 42) and attributes his period of non-enrolment to his priorities being “taken over by the family situation that had prevailed” (AAT folio 42).

    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

21. The applicant came to Australia for studies in the Diploma of Business and Commerce at Tafe Gold Coast and in the Bachelor of Business at Queensland University of Technology.  He did not complete either of those courses.  He has completed a Certificate IV in Business during the second half of 2015 and a Diploma of Leadership and Management between March 2016 and March 2017, including a period of deferral during which he visited his grandfather who was ill and subsequently died in November 2016.  He was not enrolled after completing this course of study until 18 January 2018, three days after receiving the NOICC, when he re-enrolled.

22. He claims he has been unable to attend classes in this course due to the visa cancellation (AAT folio 42).  His evidence at the Hearing was that he has not worked since September 2017 and his family sends him money.

23. Although he claims he arrived in Australia “to study English language program, Diploma of Business and Commerce Studies and Bachelor of Business at Gold Coast Institute of Tafe” (AAT folio 43) his evidence at the Hearing was that his enrolment was cancelled due to inadequate attendance in February or March 2015.  He did not adequately account for the period between then and his enrolment in the Certificate IV in Business from 29 June 2015.  He has completed the Certificate IV in Business and the Diploma of Leadership and Management on 26 March 2017.  He ceased to be enrolled from 26 March 2017.

24. While I have considered the applicants personal circumstances, including his focus on family matters and his emotional state, I do not consider that the applicant has adequately explained why he could not enrol in a registered course of study in the period between March 2017 and December 2017 when he sought advice.

25. The Tribunal notes that the applicant has not been enrolled in a Bachelor level course over the period between about March 2015 and January 2018.  He completed his Diploma level studies in March 2017.  As noted above his period of non-enrolment in a registered course of study is not less than 9.5 months.  He did not dispute that he had not been enrolled for 9.5 months in a registered course of study.  This is, in my opinion, a substantive period.

26. The applicant told the Tribunal he wants to stay in Australia to study and that this is his dream and his father’s dream.  He said he wanted a higher education over here.  His evidence as to his future plans was very general.  He stated that he intended to return to work in a multi-national company in a large city such as Delhi or Mumbai, in marketing.  In his concluding evidence he said that a higher education from Australia would help his future and make his future easy.  I do not find that he has demonstrated any compelling reason to remain here.

27. The Tribunal has considered this evidence, and the circumstances of this case.  I am concerned that the applicant might not continue to study and progress in the manner he suggests.  He has previously had studies cancelled for unsatisfactory attendance. He has not progressed to the Bachelor level as he says he aspires to notwithstanding prior opportunities to do so.

28. While I accept that the applicant may have travelled to Australia for the purposes he proposed, given his conduct of previously being cancelled for unsatisfactory attendance and of not being enrolled in a course for 9.5 months as he intended, I give this factor no weight in favour of not exercising the discretion to cancel the visa.

    the extent of compliance with the visa conditions

29. The evidence before the Tribunal does not establish that the applicant has breached any conditions other than condition 8202.  As such, the breach of condition 8202 is the only factor relevant to this consideration.

30. Having made that finding, it remains that condition 8202 is mandatory and requires the holder to be enrolled in a registered course.  The applicant accepts that he was not enrolled in a registered course for at least 9.5 months.  I give the non-compliance some weight in favour of exercising the discretion to cancel the visa.

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

31. While the submissions speak of the applicant feeling dejected and lonely in the wake of his grandfather’s death and the ensuing family dispute, they do not speak of financial, psychological, emotional or other hardship that would be caused by the cancellation.  Rather, they speak of the applicant seeking another chance.  This desire was reinforced in oral evidence at the Hearing.

32. The applicant’s representative also made submissions that the facts of the case warranted a  considerate look.

33. At the Hearing the applicant gave evidence that he has no dependents or family members in Australia and that he lives with friends in Tarneit.  He said he has a brother and a sister back home.  His evidence was that his father was a farmer and that the applicant didn’t want to be a farmer.  He said that there were not many opportunities back home and that if he could complete his degree qualification it makes a big difference to employment prospects in the big cities, which is where he aspired to establish a career and residence.

34. The Tribunal accepts that a cancellation would have an adverse impact on the aspirations of the applicant and his father for him to succeed in his studies.  The Tribunal also accepts that employers could prefer job applicants with higher qualifications to those without qualifications. I accept the decision to cancel the visa could cause a degree of hardship.

35. Against that, there is not sufficient evidence before the Tribunal to conclude that the cancellation would cause financial, psychological, emotional or other hardship beyond disappointment and reduced opportunity in a general sense.  I have given the matter a considerate look and on the material before me I do not accept that the hardship that would be caused by cancellation is particularly significant or onerous.  I give this factor some weight in favour of not exercising the discretion to cancel the visa.

    the circumstances in which the ground for cancellation arose – whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

36. The applicant pointed to his personal and family circumstances as the reason for his non-enrolment, and argues that it was beyond his control.  I have some difficulty accepting that.  It is evident from the applicant’s period of approved deferral during his studies that he was aware of the need to manage, and at least one mechanism for managing, periods when his personal circumstances were impacting on his ability to be enrolled in a registered course of study. 

37. He also gives evidence of his personal circumstances turning gloomy and his priorities being taken over by the family situation and losing focus on his studies.  But he was not enrolled until after he received the NOICC and his non enrolment was for a substantive period.  I accept he only received advice late in 2017 and I have considered his inability to gain enrolment over the Christmas period.  But against this, he applicant has not adequately explained why he didn’t take any steps to remain enrolled after completing his Diploma of Leadership and Management when he knew that was an imperative.  I do not accept that his non-enrolment could be described as arising for reasons beyond his control or due to extenuating circumstances.

38. The applicant’s representative described the circumstances surrounding the non-enrolment as a consequence of the death of a patriarch in Punjabi culture.  He described an important role for the eldest grandchild in resolving an ensuing dispute between fraternal sons of the dead grandfather.  I accept the materiality of the challenges the applicant faced.  But I cannot accept that his behaviour amounts to extenuating circumstances.  I note that his representative did not submit that this was the case.  Rather he described the circumstances as the family matters taking a front seat, and the studies taking a back seat for 5, 6, or 7 months.

39. Having considered all the matters the applicant put forward in relation to the circumstances in which the ground for cancellation arose, and having carefully considered them, I give them little weight against exercising the discretion to cancel the visa.

    past and present behaviour of the visa holder towards the department

40. The applicant responded to the NOICC and has engaged with the department during the process of cancellation.  He has engaged with the Tribunal.  I regard this factor as being neutral in terms of its weight in considering whether to exercise the discretion to cancel the visa.  

    whether there would be consequential cancellations under section 140

41. Not relevant. 

    whether there are mandatory legal consequences of a cancellation: whether cancellation
    would result in the visa holder becoming unlawful and being liable to detention and removal;
    or whether indefinite detention is a possible consequence of cancellation; or whether the
    visa holder would be prevented from making a valid visa application without the Minister’s
    intervention

42. Whilst affirming the decision to cancel the applicant’s visa would mean that he would be required to depart Australia and would only have access to a limited range of visas, this is the intention of the visa cancellation regime.  There is no suggestion that the applicant would be subjected to detention or removal under the Act.

43. While he gave evidence that a decision in his favour would be good for him and for his father, and that he sought a further chance to continue and complete studies in Australia, he did not give evidence that he was unable to return to India, or of any particular adverse consequences of having to return.  I regard this factor as being neutral in terms of its weight in considering whether to exercise the discretion to cancel the visa.

    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

44. I have carefully considered all the evidence before the Tribunal and I have found there is nothing before the Tribunal that suggests this case raises any questions of Australia’s international obligations.

    if it’s a permanent visa, whether the former visa holder has strong family   Any other relevant matters

45. Not relevant.

    any other relevant factors

46. I am not aware of any other factors relevant to this decision.

47. Considering the circumstances of this case as a whole, the Tribunal concludes that the visa should be cancelled.

48. The applicant has requested that the Tribunal refer the case to the department for consideration by the Minister pursuant to section 351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.  The Hearing Response states “I understand the limitations of the AAT also but I would request that my case be referred to the Minister so that I can get a chance to be allowed to lodge a student visa for further studies”.  The applicant does not point to any particular reason for which referral has been requested.  The Tribunal is not satisfied that the applicant has established a basis for referral.

    DECISION

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

   D Shirrefs
   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.