Singh (Migration)

Singh (Migration) [2023] AATA 2567 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jaskarandeep Singh
CASE NUMBER:  2211476
HOME AFFAIRS REFERENCE(S):          BCC2021/2274668
MEMBER:Christine Kannis
DATE:24 July 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 24 July 2023 at 8:24am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in enrolment – family illness – unsatisfactory course progress – non-payment of course fees – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams video on 11 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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
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 (Cth) (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?
On 13 August 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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 full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
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.
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 3 September 2019 until 18 January 2022.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 3 September 2019 until 18 January 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.
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
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.
On 12 January 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 3 September 2019 and had therefore failed to comply with condition 8202(2)(a) of his visa.
Response to NOICC
On 19 January 2022, the applicant responded to the NOICC and provided the following information:
·He started studying his Bachelors course at GCA (Group College of Australia) on 28 August 2017 and he attended the first semester and was doing well. He was attending lectures regularly, making his assignments and preparing for classes.
·At that time his father’s health is not good but still he was still doing his semester and mostly (80%) completed his studies.
·In last semester GCA staff didn’t let him enrol. He wrote an email to Mr Felix of GCA on 29 July 2019 and requested that he had six subjects left to complete his study but Mr Felix did not take his call and it started from there.
·GCA did not support him and did not enrol him in a further semester so he enrolled at Polytechnic College.
·He knew he skipped his studies in middle that was due to his father and GCA did not support him during that period. He had never intended to leave his studies. He had to change college because GCA was not supportive, so he changed his college to Bachelor of Business.
·Since he received an email from the Department about the intention to cancel his visa he got into a worse situation. He has anxiety and deep depression. Even though he got the email he is still studying and trying to complete his education and go back to India. His sole purpose was to complete his education in Australia and leave for good.
·He will lose his future career if his visa is cancelled. He worked hard to get to here and wants to complete what he started. The Graduate Diploma of Management is his future and he would like to complete his studies. He and his parents have a dream to see him having a good career which can only happen if he continues his studies.
·If his visa is not cancelled he will complete his studies on time. He has realized that he wasted some time during his period in Australia, but he is still focused and determined to complete what he has started.
·He has already paid his semester fees.
·He is a good student and would like to continue and complete his education in Australia. It was his father’s dream and his parents want him to complete his education. He is motivated and the new college is helpful regarding his situation and are helping him along the way.
At the time of responding to the NOICC, the applicant provided a CoE for a Graduate Diploma of Management (Learning) created on 18 January 2022.
Evidence at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from her PRISMS enrolment record, he was enrolled in the following courses of study:
a.He was enrolled in a Bachelor of Business Information Systems course which was cancelled on 7 March 2016 due to student left provider-transferred course to another provider.
b.He was enrolled in a Diploma of Leadership and Management course which he finished on 10 March 2017.
c.He was enrolled in a General English (Beginner to Advanced) course which he finished on 24 July 2017.
d.He was enrolled in a Bachelor of Accounting course which was cancelled on 1 September 2017 due to Change to student enrolment.
e.He was enrolled in a Bachelor of Business course which was cancelled on 9 October 2017 due to Change to course in same sector, gap created at either start or end of course OR the study period of the new CoE is shorter than the original.
f.He was enrolled in a Bachelor of Business course which was cancelled.
g.He was enrolled in a Bachelor of Business (Accounting) course which was cancelled on 3 September 2019 due to non-payment of fees.
h.He was enrolled in a Graduate Diploma of Management (Learning), that CoE being created on 18 January 2022 and was subsequently cancelled.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 3 September 2019 until 18 January 2022, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. The applicant told the Tribunal that his enrolment in the Bachelor of Business Information Systems course in 2016 was not cancelled and said that he left the course. The applicant made no other comment on his PRISMS record.
The Tribunal asked the applicant to clarify the information he provided in his response to the NOICC that GCA staff would not let him enrol in the last semester. In response, he initially referred to his migration agent making mistakes in changing his enrolments to different courses. The applicant then said that in July 2019 he was not allowed to enrol because of a disagreement with Professor Felix, the Dean of the college. He said Professor Felix told him that his attendance was poor and didn’t give him any reason for making that statement. The applicant said he disagreed and told Professor Felix that his attendance was only poor on one subject. The applicant said Professor Felix was offended and told him that he was the Dean of the college and he was not going to let him study at the college. The applicant said he pleaded with Professor Felix to remain at the college because otherwise his life would be ruined. The applicant said Professor Felix responded by saying that he didn’t care what happened to the applicant.
The applicant told the Tribunal that he attempted to discuss his enrolment with Professor Felix in person however he refused to see him and instead emailed him.
The Tribunal asked the applicant to clarify the information he provided in his response to the NOICC that he knew he skipped his studies in the middle due to his father and GCA not being supportive. He said that he skipped his studies around September 2019 until 2022 due to several reasons. He said when he was refused admission to GCA in September 2019, he went to Polytechnic College to enrol however they told him that he had to complete his Bachelor of Business course at GCA. He said his wife went to Canada and he was experiencing marital difficulties. He said his father had heart problems and lockdowns occurred. The applicant said that due to these matters, he became depressed.
The Tribunal asked the applicant whether he sought a deferment for compassionate reasons from GCA. In response he said his migration agent had obtained the wrong CoE and therefore he did not seek a deferment.
The Tribunal asked the applicant to clarify the information he provided in his response to the NOICC that he realised that he wasted some time during his period in Australia. In response, he said he did not know that the COVID-19 pandemic would happen. The Tribunal pointed out that his CoE was cancelled 6 months prior to the onset of the pandemic, for non-payment of fees. In response, he said that he did not have any issue with payment of fees at any time however he did not see the point of paying fees after his enrolment was cancelled. The Tribunal explained that prior to cancellation of his CoE, he would have received written notification that unless his fees were paid, his enrolment would be cancelled. In response, the applicant said he did receive emails warning him of cancellation if he did not pay his fees but his migration agent told him to ignore the emails because they were due to a malfunction or a mix-up of names.
The Tribunal noted that the applicant was not enrolled in any course after 3 September 2019 until 2 years 5 months later when he was sent the NOICC and asked him the reason he did not enrol earlier. He said he was depressed and had been working with his uncle in his transport business since mid-2019. He also referred to having a back injury and attending a chiropractor however the timing of the injury and treatment were not clear. Evidence provided after the hearing indicates this injury and treatment occurred in 2018. .
The Tribunal put to the applicant that from 3 September 2019, he would have known that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response, the applicant said he had no idea that he was not complying with the conditions of his visa and he didn’t think about it. He said in late 2021 his health improved and someone asked him what he was doing about his student visa because he wasn’t studying. He said this person told him about online classes. He said he decided to wait until the New Year to enrol in a course but he received the NOICC a couple of weeks later. He said he made a mistake in not enrolling earlier.
The Tribunal asked the applicant about the statement in his response to the NOICC that the Graduate Diploma of Management is his future. In response, he said he wants to complete his studies as soon as possible and go home. He said he wants to use the qualification to expand his family’s farming business including exporting. He said Australians are good at farming.
The applicant told the Tribunal that he came to Australia to undertake higher study and have more exposure to the world and see how it works. He referred to Australia’s mining industry and in particular coal mining. He also referred to gaining international business experience. The applicant said he has a compelling need to remain in Australia because he wants to finish his study so he can help himself and his family.
In response to the Tribunal asking the applicant about the hardship that may be caused by cancellation of his visa, he said he has wasted 8 years in Australia and if he returns home he won’t be able to show his face to his family. He also said that divorce might be caused because his wife’s Indian family would not want her to be married to him. He said she is currently in working in Canada where her family live. He said he and his wife have been discussing starting a family in their video and phone communication.
Evidence provided after the hearing
Following the hearing the applicant provided the following documents:
·Emails dated 23 August 2018 from the applicant to John Angels and copied to Felix Stravens in which he said he was a student in his BAS 11A class and scored more than 20% in his quiz and mid-terms. He said he was expecting a distinction in his final exam and he attempted all the questions and is sure they were right. He said he thinks there has been a mistake in checking or calculating his final exam marks and requested re-checking. In a second email the applicant requested John Angels to show him his quiz because he wanted the marking checked in front of the head of his department.
·Email dated 23 August 2018 from Felix Stravens to the applicant advising that all grade/mark reviews must be done with the lecturer concerned. He said the Program Directors have complete trust and respect for all lecturers and in keeping with policy, should there be a need to re-look at grades following the meeting, the lecturer will advise the Program Directors.
·Email dated 27 August 2018 from the applicant to Felix Stravens coped to John Angels asking about the policy and the procedure to recheck the exam because he wants to see his exam and quiz marking.
·Email dated 27 August 2018 from Felix Stravens to the applicant copied to John Angels and Wayne Smithson advising him of Grievance, Official Complaints and Evaluation process (stated to be 7.1,7.2 and 7.3).
·Receipt dated 29 October 2018 from Aries Clinic of Chinese Medicine & Acupuncture
·Medical Certificate certifying the applicant as unfit to continue with his usual occupation from 1 November 2018 to 5 November 2018
·Document titled JSingh back program dated 2 November 2018
·Email dated 3 November 2018 from the applicant to Felix Stravens in which he says he has paid fees but was showing as non-financial. He said he was unable to access moodle and could not apply for supplementaries. He said he was suffering from a severe back injury and was unable to attend the college to solve it with accounts. He said his agent had sent receipts to accounts but nothing happened. Documents evidencing the applicant’s medical condition and treatment were stated to be attached to the email.
·Invoices dated 3 November 2018 from Blacktown General Practice
·Document dated 12 July 2019 from the applicant to the GCA Admission team in which he said he had been refused re-enrolment by Mr Felix on the basis of poor academic performance. He referred to major back pain and treatment, his father having a heart attack and resulting depression from these issues. He said he was on a tight budget and could not return home to support his father. He said, “This has caused my mind not focusing on studies and resulted to poor academic performance”. He requested reconsideration of the decision not to allow him to re-enrol.
·Email dated 24 July 2019 from the applicant to Felix Stravens in which he said he only had 6 subjects left. He said he would give his word that if he failed any subject or missed any lecture, his name could be cancelled with no refund of fees. He said he wanted to complete his degree and that he will pay fees of all subjects at the same time.
·Email dated 28 July 2019 from the applicant to Felix Stravens in which he said he can give an agreement in writing and said he will attend all lectures and pass every subject with good marks.
·Email dated 28 July 2019 from Felix Stravens to the applicant advising that regretfully he is unable to assist him.

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
The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 2 years 5 months. 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.
The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said he wants to finish his study so he can help himself and his family. The Tribunal does not consider this constitutes a compelling need.
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
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 3 September 2019 until 18 January 2022. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for an extended period of 2 years 5 months weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him and to his family because he will not be able to undertake study to obtain an Australian qualification. The Tribunal accepts that the applicant fears his marriage may end if he does not obtain an Australian qualification. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant said his enrolment was cancelled because he had a disagreement with the Dean of GCA who refused to re-enrol him. There was no evidence before the Tribunal to substantiate this contention and there was no evidence to support the applicant’s claim that Felix Stravens said he didn’t care what happened to the applicant.
The emails dated in August 2018 show the applicant’s disagreement with exam marks and do not demonstrate a disagreement in 2019 which led to his non-compliance. The email dated 3 November 2018 indicates that he had a back injury and that he had an issue with payment of fees. The Tribunal accepts that the applicant suffered a back injury in 2018 however the email does not demonstrate a disagreement in 2019 which led to the applicant’s non-compliance.
The emails dated in July 2019 indicate that the applicant had not paid his fees. In one email he stated that his poor academic performance was due to his back pain, his father’s poor health and his resulting depression. There was no evidence to support the applicant’s claim that his father suffered a medical episode or that he suffered depression.
The applicant told the Tribunal that GCA were not supportive of him however he did not clarify what constituted this claimed lack of support. When the Tribunal pointed out that his enrolment had been cancelled because he did not pay his tuition fees, he conceded that he had received warning emails from GCA but claimed his migration agent told him to ignore them. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.
The Tribunal notes that the applicant was not enrolled in a course for 2 years 5 months which included the whole of 2020 and 2021. The applicant told the Tribunal that he was depressed due to not being admitted to GCA in 2019, marital problems, his father’s health and the COVID-19 pandemic. No evidence substantiating the applicant’s claimed depression was provided however he told the Tribunal that he worked with his uncle during that period. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder.
When the Tribunal put to the applicant that he would have been aware that he wasn’t complying with a condition of his visa during the 2 years 5 months he remained in Australia as the holder of a student visa and wasn’t studying, he said he had no idea and didn’t think about it. It is the responsibility of visa holders to notify the Department of changes in their circumstances that affect their visa and remain compliant with visa conditions.
The applicant’s evidence at the hearing regarding the reason for non-compliance with condition 8202 was essentially that the Dean, Professor Felix, was offended when the applicant disagreed with him about his attendance and then refused to allow him to enrol. The evidence shows that the applicant did not pay his fees and in a document dated 12 July 2019 he referred to his poor academic performance.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he did not pay his fees. He said his enrolment was cancelled because he had a disagreement with the Dean. He said his migration agent told him to ignore the warning emails about payment of fees. The applicant did not attempt to enrol in a course in 2020 or 2021. He referred to being depressed during that time however as noted, no medical evidence was provided to substantiate the claim. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. 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 and gives this some weight against cancellation.
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
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 and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
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 was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his 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.
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
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 must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2023] AATA 2567

24 July 2023

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