Singh (Migration)

[2019] AATA 2719

Singh (Migration) [2019] AATA 2719 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabhsidak Singh

CASE NUMBER:  1705283

HOME AFFAIRS REFERENCE(S):           BCC2017/492261

MEMBER:Frank Russo

DATE:4 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2019 at 5:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – financial difficulties – tenancy issues – father’s health issues – TAFE enrolment cancelled due to unpaid fees – no concrete steps to obtain enrolment for three years – no clear study plan – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116(1)(b), 140, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 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).

2. The delegate cancelled the visa on the basis that the applicant did not meet the requirements of his Student visa as he was not enrolled in a registered course. 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. The applicant appeared before the Tribunal on 25 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s family friend, Mr Manbirpal Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant provided a copy of the delegate’s decision with his application for review.

8. On the morning of, or during the hearing the applicant provided the following documents, in addition to the information provided with his application for review:

   ·     A Driving Record, issued by Service NSW on 24 September 2018;

   ·     A criminal history check, issued by National Crime Check Pty Ltd on 17 September 2018;

   ·     A Tenant Trust Ledger Report, issued by Jupiter Realty on 27 April 2016;

   ·     Diagnostic results relating to his father, dated August 2014;

   ·     A letter of offer from Australis Institute of Technology and Education for the Certificate III in Commercial Cookery, dated 23 May 2016.

9. In addition the Tribunal has a copy of the Department’s file, which includes a copy of the applicant’s letter dated 9 March 2017 in response to the Notice of intention to consider cancelling his Student visa, which includes the following documents:

   ·Notice of Conciliation and Hearing issued by the NSW Civil & Administrative Tribunal (NCAT), dated 11 April 2016;

   ·Notice of termination of tenancy due to non-payment, issued by Jupiter Realty on 8 April 2016;

   ·Letter from Red Energy, dated 1 March 2017, giving the applicant notice that his payment arrangement has been cancelled, as well as copies of electricity account bills due in June 2016.

10. At the hearing the applicant gave evidence that he arrived in Australia on 25 September 2014 and initially undertook a course in English. He gave details of how he was initially enrolled in the incorrect level of English course as he had not submitted an IELTS certificate relating to prior study of English. He gave evidence that he eventually enrolled in the correct course and completed the course.

11. After successfully completing the English course he commenced studies at TAFE towards the Certificate IV in Information Technology, however he found it very difficult and didn’t complete the course because he couldn’t understand the classes. Following this he was enrolled in the Diploma of Information Technology.

12. The applicant stated that after enrolling in the Diploma of Information Technology he encountered financial difficulties arising from the following:

    ·A residential tenancy debt. The applicant explained that he entered a lease for a house which was shared by several people. One of the tenants caused damage to the property and the landlord brought an action for recovery of costs. The applicant had paid the entire amount of the bond. Following the departure of the other tenants, the applicant had an action brought against him for payment of unpaid rent and the repairs. The applicant ended up settling this matter with the landlord by paying $2,790 for the cost of a handyman and $1,800 for outstanding rent. He said that he was expecting to get the bond back, but it was not returned to him. The other tenants continue to owe him money in relation to these debts.

    ·In addition the applicant was responsible for paying the electricity account for the household and was in debt for $1,800. He said that Red Energy told him that he had to repay this in instalments otherwise his credit history would be damaged.

    ·He was unable to rely on funds from his parents as his father had become very ill with liver damage. The applicant said that prior to coming to Australia he had to expend funds to have his father treated for a condition of his liver. He stated that what funds he had in India got used up for the treatment.

13. The applicant stated that as a result of these financial difficulties he was unable to pay his TAFE fees. At this point he started feeling very lonely in Australia and couldn’t concentrate on his studies. He stated that his mother and sister also experienced difficulties as his father was not taking care of them. The evidence with respect to the residential tenancy and electricity account debts is consistent with information which the applicant told the Department in his letter of 9 March 2017 and is supported by the documents which he has provided the Department and Tribunal.

14. The applicant told the Tribunal that he approached TAFE about the outstanding fees and asked for an extension to pay them, but TAFE told him that it was too late and cancelled his enrolment.

15. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. 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 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 and advised that he may be granted time to comment on or respond to the information if needed.

16. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that it was an accurate reflection of his enrolment history. The applicant asked whether he could submit a document in response to his PRISMS record. The Tribunal confirmed that he could submit any relevant documents. The applicant stated that he had a document relating to the English course which he was meant to study when he was first enrolled, and which would explain why he did not complete one of his English courses. He indicated that instead of being enrolled in ‘EFS3’ he was mistakenly enrolled in ‘EFS1’. The Tribunal confirmed with the applicant that his study of English is not in question. The issue in question is whether he was not enrolled from 20 May 2016 to 14 March 2017.

17. The applicant provided the telephone details of his family friend, Mr Manbirpal Singh, who gave evidence by telephone. The evidence that this witness gave relates considerations towards the exercise of the discretion to cancel the visa and therefore this evidence is dealt with in that part of this decision.

18. The applicant confirmed that he was not enrolled in a registered course from 20 May 2016 to the date of the delegate’s decision on 14 March 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

19. 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’

    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

20. The applicant told the Tribunal that the purpose for his travel and stay in Australia were to study, to finish his degree so he could provide a better life for his mother and sister. He gave evidence that his father suffers from alcoholism and in addition to the resulting health problems, he does not assist the family, but rather is an additional financial stress to his family.

21. When asked by the Tribunal whether he still intends to study now, the applicant stated that he would like to study Business Management as he has a good head for that area and is ‘very smart in that regard.’ When asked whether he has plans for study at a particular institution he stated that he ‘can study anywhere where I get permission in Australia.’

22. When asked whether he has worked since arriving in Australia, the applicant initially said that he worked at a 7-11 convenience store. When asked whether he is working there now, he stated that he is not as there was an underpayment dispute. He indicated that he left that role in about November 2016. When asked where he has worked since then he replied that he didn’t work or study for about six months after this. The Tribunal questioned the applicant as to how he is supporting himself now, to which he stated that he borrowed money from friends and is still required to pay them back. After further questioning about how he supports himself in Australia the applicant stated that after this he obtained another job in a 7-11 and is currently working at Woolworths on a casual basis.

23. The Tribunal asked the applicant whether he had communicated with TAFE about re-enrolling in his studies. He told the Tribunal that TAFE told him that he could study there again, but he would need to restart his studies and he would have to pay for them again. The applicant said that the amount which he had to pay was a lot and he could not afford to pay it.

24. When asked why he had not enrolled in a course of study since May 2016, the applicant stated this was because he was still spending money on treatment for his father, in addition to paying the costs of the breach of the tenancy agreement as well as rent. He hoped to recommence his studies, but feared that if he did so, half of his studies would be wasted if his visa remains cancelled. He stated that he had to borrow money from a friend even to bring the application for the current review.

25. The Tribunal put to the applicant that there was nothing to prevent him from re-enrolling in the TAFE course other than the financial difficulties which he was facing. He confirmed that this was the case. The Tribunal also put to the applicant the statements he made on 9 March 2017 in his response to the Department’s notice of intention to cancel his visa. The Tribunal notes the following paragraphs in particular:

    Once I started working again in around October 2016 I started saving money again and recently I contacted TAFE again so that I can continue with my studies. I was told by TAFE that they are willing to enrol me again if I pay their fees which was overdue.

    Now I am in contact with TAFE to get myself enrolled in Diploma in Information Technology and they have sent me the form for enrolment. I am in the process of completing the form and applying for the course again and hoping to finish this course as it is very important for me to progress in life.

26. In response the applicant said he did speak to TAFE, but he also indicated that he did not try to get a confirmation of enrolment. The applicant then stated that he tried to get a confirmation of enrolment from another college, but he did not go through with enrolment as their fees were too high. At this point in the hearing the applicant gave the Tribunal a copy of the letter of offer from Australis Institute of Technology and Education for the Certificate III in Commercial Cookery, dated 23 May 2016.

27. The Tribunal accepts that the initial purpose of the applicant’s travel and stay in Australia may have been to study Information Technology at TAFE, however the Tribunal places weight on the fact that the applicant has remained un-enrolled since 20 May 2016, a period of close to three years. The applicant did not provide any evidence that he was unable to enrol at TAFE during this period because of visa restrictions. Rather, the only impediment to re-enrolling has been the financial cost of studying. The Tribunal notes in particular the statements which the applicant made to the Department in his letter of 9 March 2017, which suggest that he was in contact with TAFE and his re-enrolment was imminent. No concrete steps towards re-enrolling in this course appear to have been taken since then, despite a further two years elapsing, leading the Tribunal to find that those statements were made for the purpose of avoiding cancellation of the applicant’s Student visa, rather than because of a strong desire to undertake this particular study.

28. The Tribunal also notes the applicant’s statement at hearing that he is now interested in studying Business Management, although he has not taken any steps to locate a particular institution where he can study such a course. This, together with the letter of offer from Australis Institute of Technology and Education in Commercial Cookery, dated 23 May 2016, suggest the applicant has considered various course options for the purpose of obtaining enrolment, with no firm commitment towards a particular course of study.

29. The Tribunal also finds the applicant’s evidence with respect to his employment and how he supports himself to be somewhat evasive, which impacts on the weight which the Tribunal can give to his evidence.

30. Overall, the Tribunal finds that the initial purpose for the applicant’s travel to and stay in Australia was for the purpose of study. The applicant commenced his studies on arrival in Australia, indicating an intention to study. However, the Tribunal does not accept that this equates to a compelling need to remain in Australia in light of the almost three years that the applicant has not been enrolled to study following cancellation of his enrolment by TAFE. The applicant was unable to advance a sufficient reason for this delay, other than the financial cost of study. The applicant’s lack of a current study plan, other than his recently stated interest in studying Business Management, also detracts from there being a compelling reason for him to travel to or remain in Australia. Accordingly, the Tribunal gives this weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

31. There is no evidence that the applicant has not complied with other visa conditions and this was noted in the delegate’s decision. When the applicant was asked about this at hearing he cited his national criminal history check and Driving Record, which he provided the Tribunal immediately before the hearing commenced. He said that he has not breached any conditions placed on his visa. The Tribunal gives this some weight against cancelling the visa.

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

32. In regards to the hardship that may be caused by the visa cancellation, the applicant stated that he has already experienced hardship since his visa was cancelled. He gave evidence of the hardship to himself and his family, including:

    ·His father continues to be a heavy drinker despite suffering liver failure. He is a violent man who threatens violence against the applicant, his mother and sister. The applicant indicated that he has video evidence of his father’s violence, if the Tribunal wished to see it. The Tribunal indicated that it accepted the evidence of his father’s violence and did not need to see the videos.

    ·The applicant’s grandmother is very unwell and in her last stages. He has been unable to return to India as a result of a condition of his Bridging visa.

    ·His mother and sister had high hopes for him, in particular that he will assist his sister. If his visa is cancelled he will not be able to go on to achieve the things he hopes for. He has not been able to support his mother and sister as he has up to this point not studied or worked properly.

    ·His financial position is the same as the day he arrived in Australia. What funds he had, he has paid towards student fees and his father’s treatment. He has nothing left saved.

    ·He stated that if he is sent back to India his mother could have a heart attack. He stated that he is his mother’s only hope.

33. Evidence was given by telephone by Manbirpal Singh, a family friend of the applicant. Mr Singh gave evidence that there are lots of issues in the applicant’s family. He stated the applicant’s father drinks every day and beats his wife, daughter and the applicant’s grandmother. This is why the applicant is depressed. When asked by the Tribunal whether he was aware of the circumstances surrounding the time when the applicant ceased studying, Mr Singh stated that the applicant’s father would hurl abuse at him and abuse him for only being able to work 20 hours while on his visa. The applicant would spend a lot of time on the phone and would not eat.

34. The Tribunal accepts that the applicant faces difficult family circumstances. The Tribunal also accepts that the applicant and his family may undergo hardship if his visa is cancelled. I give this consideration some weight against cancelling the visa.

    Circumstances in which ground of cancellation arose.

35. The Tribunal accepts that the applicant faced difficult circumstances at the time that his enrolment was cancelled by TAFE. The applicant supplied evidence of a hearing before NCAT, as well as rent records and correspondence with Red Energy which indicate he had a significant debt in relation to his electricity account. These are all dated at dates consistent with TAFE’s cancellation of the applicant’s enrolment in May 2016 and help establish that the applicant experienced financial stress at that time. The applicant provided evidence at the hearing that this financial situation was the result of damage caused by one of the people he had been sharing with and was beyond his control.

1. The applicant also supplied documentary evidence of tests his father underwent in 2014, and the Tribunal accepts the applicant’s evidence of the financial support he gave to his father to undergo this treatment. The Tribunal also accepts the evidence provided with respect to the applicant’s father’s condition being very serious, which is supported by the letter the applicant provided to the Department from Navpreet Hospital, dated 7 March 2017, which states that his father was undergoing treatment for liver disease.

2. The Tribunal gives this some weight against cancelling the visa, but not sufficient weight to outweigh the period in time where the applicant was not enrolled at TAFE (almost ten months by the time the delegate made his decision, and over 34 months at the time of the Tribunal’s decision).

   Past and present behaviour of the visa holder towards the department

3. There is no evidence that the applicant has been uncooperative with the Department or the Tribunal. The Tribunal gives this some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

4. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   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

5. If the applicant’s Student visa is cancelled he would potentially face becoming an unlawful non-citizen and liable for detention and removal under the Act. However, the Tribunal also notes that the applicant could apply for a Bridging visa in order to remain within the community to finalise his affairs before departing Australia.

6. If the visa is cancelled the applicant would be excluded from making applications for certain types of visa in Australia in accordance with s.48 of the Act. The Tribunal notes however that the sanctions imposed by s.48 are standard legal consequences for the cancellation of a visa. In light of the circumstances in this case, including the applicant’s lack of clear study plan, the Tribunal has considered the mandatory legal consequences of the visa cancellation and find that they do not provide weight against cancelling 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

7. Not applicable.

   Any other relevant matters.

8. The applicant did not raise any other relevant matters to be considered, other than stating that he wishes to fulfil his mother’s hopes and aspirations. He stated that if he is granted a visa he wants to study further. The Tribunal weighs this consideration neither in favour nor against cancelling the visa.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. In particular the Tribunal places weight on the purpose of the applicant’s travel and stay in Australia and whether he has a compelling need to remain in Australia. The applicant has not been enrolled to study in close to three years and did not advance a suitable reason for not being enrolled, other than the financial cost of studying. The applicant provided evidence that he had made enquiries about enrolling in another course completely unrelated to IT at another institution, but did not proceed with this due to the financial cost involved. The Tribunal finds that the applicant’s lack of clear study plan detracts from him having a compelling reason to remain in Australia. With respect to other considerations, the Tribunal has given some weight against cancelling the visa, and has weighed these circumstances up. However, the ‘some weight’ given for these circumstances is in this case outweighed by the weight placed on the visa holder’s purpose for staying in Australia.

   DECISION

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

    Frank Russo
    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.