Singh (Migration)

[2019] AATA 3162

Singh (Migration) [2019] AATA 3162 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh

CASE NUMBER:  1705471

HOME AFFAIRS REFERENCE(S):          BCC2016/3296668

MEMBER:Mr S Norman

DATE:15 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 May 2019 at 12:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in not enrolled in a Bachelor’s degree or Masters degree course – non-attendance at hearing – non-commencement of Bachelor degree – mother’s health issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 March 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(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was found to have breached condition 8516 (discussed below). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. By letter dated 25 March 2019 (dispatched by email to the authorised recipient), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 11.00am on 15 May 2019. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. 

4. The Tribunal understands that after applying for merits review, the applicant had departed Australia on 2 June 2017, and he had not returned. However, by email of 23 May 2018,[1] a person subsequently identified as the applicant contacted the Tribunal and enquired about the status of his merits review application. By email of the same date,[2] the Tribunal wrote to the applicant’s agent (a copy was ‘cc’ to the applicant’s email address) and advised that it appeared the registration of his migration agent had lapsed on 19 December 2017. After then advising the applicant the Tribunal was required to continue to issue correspondence to his authorised recipient, the Tribunal invited the applicant to inter alia appoint another person as his authorised recipient (relevant forms were attached to this email). The applicant was also invited to contact the Tribunal if he had any questions about this advice. The applicant did not respond to this email from the Tribunal, and he did not otherwise contact the Tribunal since the email of 23 May 2018.

   [1] Tribunal – folio 18.

   [2] Tribunal – folio 24 (reverse side).

5. Notwithstanding the applicant’s having departed Australia, the Tribunal also (automatically) issued two hearing reminder texts shortly prior to the scheduled hearing. At the time of this decision, one had been listed as having failed to be delivered.

6. That being said, the applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

7. 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

8. The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8516 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 8516?

9. In the present case, the applicant’s Student visa was cancelled as he was found to have breached condition 8516. That required that:  

   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

10. Relevant to this case:  

    573.111

    …..

    eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

    (a)      the applicant is enrolled in a principal course of study for the award of:

    …
    (ia)    an advanced diploma in the higher education sector; or 

    (i)      a bachelor’s degree; or
    (ii)      a masters degree by coursework;

    (b)      the principal course of study is provided by an eligible education provider;
    (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)      the applicant is also enrolled in that course; and
    (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

    and: 

    [573.223] (1A)   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and
    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and
    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

    and:

    [573.231]    If subclause 573.223(1A) does not apply:

    (a)      the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
    (b)      the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i)      made under regulation 1.40A; and
    (ii)      in force at the time the application was made

11. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 18 August 2015 (expiry date 15 March 2019). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 February 2017, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he was not enrolled in a Bachelor’s degree or Masters degree course, being a principal course of study of the type specified for a subclass 573 visas by the Minister in an instrument made under r.140A - from 5 August 2016 to 20 February 2017 (being approximately 5 ½ months).

12. The applicant responded to the NOICC, and he did not agree there were grounds to cancel his Student visa. He had lodged a ‘conditional’ Offer and Acceptance (from Group Colleges Australia) dated 4 July 2016.[3]

    [3] Department – folio 42.

13. Be that as it may, based on the evidence before it, the Tribunal is satisfied the applicant failed to maintain enrolment in a relevant principal course of study. Accordingly, the applicant has not complied with condition 8516.

    Consideration of the discretion to cancel the visa

14. 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’.

15. Regarding the purpose of the applicant‘s travel to and stay in Australia, there is no evidence to indicate the applicant’s initial intention was not to travel to and stay in Australia for the purposes of study. In his letter dated 21 February 2017,[4] the applicant said he arrived in Australia on 1 September 2015, as he had been granted his Student visa in order to pursue the following study plan:

    ·     8 September 2015 / 20 January 2017 – Diploma of Business (UTS In search)

    ·     6 March 2017 / 31 December 2017 - Bachelor of Business (UTS)

    [4] Department – from folio 30.

16. However, his Bachelor of Business (COE) was cancelled for non-commencement of studies on 5 August 2016 (approximately half way through his Diploma). The Tribunal notes that Student visas allow non-citizens to travel to and reside in Australia for the purposes of study at an appropriate level. However, the applicant’s enrolment in a registered course had lapsed for some 5 ½ months at the time of the NOICC was issued. After then considering all the evidence, and given the applicant’s absence from Australia since June 2017, I do not accept his present intention is to study in Australia.

17. Regarding the extent of compliance with visa conditions, the Tribunal has no evidence the applicant has materially breached conditions of his visa, which have not already been referred to herein.

18. Regarding the degree of hardship that may be suffered by the applicant or his family if his Student visa is cancelled, the applicant did not (ie) claim to have family members in Australia that would or may be impacted if his visa is cancelled. The applicant did say he wished to obtain a better education in Australia. However and as noted herein, the applicant had not studied in or resided in Australia since at least June 2017. Be that as it may, the Tribunal proposes to accept the applicant or his family may be subject to some limited hardship if his Student visa is cancelled.

19. Regarding the circumstances in which the ground of cancellation arose, the applicant said the only reason he could not maintain his initial study plan was due to his “situation”, and it was not intentional. He also said he had “maintained his enrolment and continued his education immediately since his COE was cancelled”. Amongst other things, the applicant had lodged with the Department:

    ·     A medical certificate dated 21 February 2017 claiming he suffered from anxiety and depression and “very high stress”; due to the medical condition of his mother (referred to below). The named doctor said the applicant had reported that he had been taking medications to calm his nerves.[5]

    ·     a medical certificate naming a Mrs Amarjit KAUR (the applicant’s relative) dated 20 February 2017, who suffered a coronary heart blockage[6]

    ·     a letter from UTS Insearch referring to “Full Time English”, commencing 11 January 2016 and finishing on 12 February 2016[7]

    ·     a COE for a Diploma of Business (Insearch Ltd), start date 8/09/2015, end date 20/01/2017[8]

    ·     a COE for a Advanced Diploma of Business (Group Colleges Australia), start date 11/07/2016, end date 16/06/2017[9]

    ·     a COE for a Bachelor of Business (Group Colleges Australia), start date 8/05/2017, end date 1/05/2020[10]

    [5] Department – folio 31.

    [6] Department – folio 50 (reverse side).

    [7] Department – folio 50.

    [8] Department – folio 35.

    [9] Department – folio 34.

    [10] Department – folio 32.

20. The applicant had set out in some detail the subjects he had studied, the subjects he said he had passed, and what he said his education had cost (in 2016). Though he believed he had “achieved the required level this time”, he conceded his grades were “not satisfactory to his expectation”. He referred to his mother’s medical condition as being (at least in part) the cause of this. He said he spoke with his education provider and he had mentioned that he “possibly may not fit the standard of UTS or that maybe being new to the Australian education system”. The applicant then decided to move to another education provider as he could not afford to again fail at UTS Insearch (some email correspondence had been lodged).

21. His application for release from Insearch was rejected on 16 June 2016 and he was requested to enrol in the third semester. The applicant appealed the decision and was “waiting for the outcome but to his surprised he received an email on 25 July 2016 [from a named person] advising that his enrolment had been cancelled”. The applicant then “fell into severe depression”, and he was already concerned about his mother’s health.

22. The applicant then sought enrolment in Group Colleges Australia and paid a fee to that College on 27 July 2016. He then referred to enrolling for:

    ·     Diploma of Leadership and Management – 11 July 2016/16 June 2017

    ·     Advanced Diploma of Leadership and Management – 10 July 2017/15 June 2018

    ·     Bachelor of Business – 25 June 2018/11 June 2021

23. The applicant said he was “satisfied with his progress at GCA”. However, the applicant conceded he had to repeat a few subjects in either 2016 or 2017 but that he was “expected to complete his course in April 2017”.

24. The applicant also said that his mother’s health and his initial failures at UTS Insearch had impacted him. He also said he had never stayed away from his family previously and he felt helpless. He now believes that his situation is improving. He referred to commencing a Bachelor Degree in May 2017.[11] He also said he would not repeat the same mistakes he had made previously.

    [11] Department – folio 28.

25. The Tribunal accepts the applicant claimed to have circumstances in his private life which may have adversely impacted his capacity to continue his studies in Australia. However, the applicant departed Australia in June 2017; and he had not completed any course in Australia (since being granted his Student visa on 18 August 2015). Accordingly, even if the applicant’s circumstances caused him to cease his studies, the Tribunal is not satisfied the applicant now genuinely intends to continue his studies in Australia.

26. Next, the Tribunal has no information the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no information that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no information that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. Based on the evidence before the Tribunal, I am not satisfied the applicant has a compelling need to travel to or remain in Australia.

27. 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 (though as stated above, the applicant had departed Australia in June 2017 and had not since returned). Therefore, the applicant would not be subject to indefinite detention.

28. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and he 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 15 March 2017).  

29. After then having considered all the accepted evidence, the Tribunal is satisfied it should exercise the discretion to cancel the applicant’s Student visa.

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

    DECISION

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

    Mr S Norman
    Member