Singh (Migration)

[2019] AATA 1013

Singh (Migration) [2019] AATA 1013 (27 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh

CASE NUMBER:  1709721

HOME AFFAIRS REFERENCE(S):           BCC2017/791271

MEMBER:Stephen Witts

DATE:27 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 27 March 2019 at 12:43pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – enrolled in courses below the required level – medical condition – did not seek deferral or leave of absence – study record – lack of English ability – poor advice from agent – consideration of discretion – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 May 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i)on the basis that the applicant was not a genuine student. 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 27 March 2019 to give evidence and present arguments.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(fa) - not a genuine student

6. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

8. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

9. According to the delegate’s decision record dated 3 May 2017, provided to the Tribunal by the applicant, the applicant was granted a Student (TU573) Higher Education Sector visa on 21 May 2014 to study a course package leading up to a Bachelor of Engineering degree. This course commenced on 26 May 2014 and was scheduled to complete on 30 June 2018.

10. According to the delegate the applicant’s Provider Registration and International Student Management System records indicate that the applicant has not maintained the study plan as outlined in his initial student visa application.

11. According to the delegate, in response to the Notice of Intention to Consider Cancellation, the applicant stated that he came to Australia to study a Bachelor of Engineering degree but before commencing this degree he needed to successfully complete an English course. The delegate contended that the applicant then dropped down to vocational level courses and was not able to study at the required level in accordance with his visa requirements. The delegate noted that the applicant had not been enrolled in a bachelor’s degree or master’s degree since 12 August 2016 and had not been enrolled in the course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

12. The delegate further contended that the applicant provided a letter from a GP dated 25 January 2016 which provided a diagnosis of separation syndrome and stated that the applicant would be unfit to study from 6 January 2016 until 1 February 2016. The delegate noted that the GP also mentioned that there was some difficulty in assessing the applicant’s condition due to cultural differences. The delegate noted that there was no medication or treatment plan in evidence in this particular letter. The delegate stated that considering the visa holders claims that he could not maintain his enrolment, he could have approached his education provider to discuss if he could apply for deferral of studies or leave of absence of his studies. The delegate noted that the applicant has not provided any evidence that this has occurred.

13. The delegate therefore contended that based on the evidence before it, it was satisfied that it had considered all the relevant additional factors and having considered all the relevant additional factors it was satisfied that there was little weight to make a decision to not cancel the visa holder’s visa.

14. On 27 March 2017 the delegate provided to the applicant a Notification of Intention to Consider Cancellation of his Student (Temporary) (Class TU) Higher Education Sector (subclass 573)visa under section s 116 (General Power) of the Migration Act 1958.

15. On 30 March 2017 the applicant wrote to the Department of Immigration and Border Protection outlining his point of view about the various cancellations of his courses that he has experienced here in Australia. The applicant explained that his Bachelor of Engineering enrolment was cancelled because he could not complete his English ELICOS course to the required standard. He stated that this happened despite his desire to upgrade his academic qualifications in mechanical engineering. He stated that he was too upset to tell his parents. He then explained that his Certificate III, Certificate IV, and his Diploma of Automotive were also cancelled and that he then successfully completed his Certificate III in Aged Care but was not able to pursue his nursing qualification. He also stated that he also attempted a Diploma of Commerce but stated that that was cancelled due to unsatisfactory course progress. He stated that he then realised the importance of the completed degree to a complete education. He stated that his failure to not complete his business courses earlier should not be judged as a lack of interest to be a genuine student.

16. Adopting the procedure under s.359AA of the Act the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISM’s record. The Tribunal asked the applicant if he wished for some additional time to consider this record prior to having a discussion with the Tribunal.

17. The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record.

18. According to the applicant’s PRISM’s record he has had the following enrolments since his arrival here in 2014:

    a)English Language Program finished in June 2014

    b)Bachelor of Engineering cancelled in 2014

    c)Certificate III in Light Vehicle Mechanical Technology cancelled in 2014

    d)Certificate III in Aged Care finished in 2014

    e)Diploma of Nursing cancelled in 2015

    f)Diploma of Commerce cancelled in 2015

    g)Certificate IV in Automotive Mechanical Diagnosis cancelled in 2015

    h)Diploma of Business cancelled in 2015

    i)Diploma of Business Management cancelled in 2016

    j)Bachelor of Business cancelled in 2016

    k)Diploma of Business cancelled in 2016

    l)Diploma of Automotive Technology cancelled in 2016

    m)Bachelor of Professional Accounting cancelled in 2018

19. The Tribunal discussed the applicant’s study record with him. The applicant acknowledged that he originally came here to study under a higher education sector visa and that he had an obligation to study a bachelor level course here in Australia. He stated that subsequent to arriving in Australia he realised that his English was not sufficient and undertook an English language course upon his arrival here prior to his enrolment in a Bachelor of Engineering. The applicant stated that he struggled with his English to the point that he was not able to proceed with his bachelor level enrolment and then took advice from an agent who suggested he enrol in a package of courses that would allow him to progress to higher level education. However, the applicant stated that for various reasons he was unable to proceed with a number of course enrolments over a significant period of time due to his lack of English ability and his difficulty with some of the course material. He acknowledged that his last successfully completed course, and his only completed course other than his English language course, was a Certificate III in Aged Care which he completed on 12 December 2014. The applicant acknowledged that he had not undertaken any study successfully since that date.

20. When questioned by the Tribunal as to why he had not been able to proceed with his many enrolments he stated that his English was not sufficient to allow him to proceed with other enrolments at that time and that he also suffered a separation syndrome, or anxiety, which made it difficult for him to study. When asked by the Tribunal why he did not proceed in particular with his Bachelor of Engineering enrolment, which was a requirement of his higher education sector visa he responded that he was unable to proceed with this qualification in particular because of his English language problems.

21. When asked by the Tribunal why the applicant then enrolled in the aged care sector with the intention of studying nursing after that the applicant stated that he took advice from his agent and others that he should be doing an achievable package of courses that would allow him to remain here as a student and then gradually acquire qualifications that would allow him to study at higher level. In particular he said that “I thought I would go back one step and my agents guided me”.

22. When asked by the Tribunal to outline his methodology of enrolments, in particular the many commerce, business, and accounting enrolments he had had without being able to bring any of these enrolments to a successful conclusion he stated that he could not recall his enrolment in a Bachelor of Professional Accounting and didn’t believe that he had actually enrolled in this course but that with the other courses he was attempting to move through a packaged form of enrolments to be able to succeed in achieving an enrolment in a higher education sector course.

23. When asked by the Tribunal why he had enrolments in automotive courses the applicant stated that that was an area he was considering to work in back in his home country but that he needed a Bachelor of Engineering specifically with a major in mechanical engineering to also be able to work in that field back in his home country.

24. The applicant stated that he first came to Australia with the intention of studying at high level and the wanted to improve his English skills. He stated that he completed high school in 2009 and then studied for and was successful in achieving a Bachelor of Civil Engineering in his home country between 2010 and 2014 prior to coming to Australia.

25. When asked by the Tribunal why after having successfully completed a Bachelor of Civil Engineering why he came to Australia to study a Bachelor of Engineering the applicant stated that he wished to achieve this qualification, with a major in mechanical engineering, so as to allow him to return home and work in the automotive field. When asked by the Tribunal why he needed another bachelor level engineering degree to work in automotive the applicant stated that education back in his home country is very competitive.

26. When asked by the Tribunal to provide any further evidence in regard to his many cancellations here of his courses in Australia since his arrival in 2014 and any reasons as to why he has not successfully studied here since December 2014 with only one certificate three qualification actually completed here the applicant said that he “took advice from my agents and everybody misguided me”. He also stated that “I was guided by others in regard to what a 573 course was and I could not meet my IELTS requirements”.

27. The Tribunal has considered the evidence presented by the applicant in regard to his study record here specifically his stated intentions to come here and study for an engineering qualification and then his explanation that he was poorly advised by his agent, and that he was having problems with his English, and that he was unwell for a period of time after his arrival here.

28. The Tribunal finds that the applicant’s explanation as to the poor advice he was receiving from his agents is not an adequate explanation for the significant amount of time the applicant has spent here, a period now of almost 5 years, having completed one low level course back in 2014, and for the many changes in his enrolment trajectory. The Tribunal also finds that the applicant’s period of illness here, particularly in 2016 which was the subject of some advice from his doctor at that time about his lack of ability to study, is not an adequate explanation for his study record here. The Tribunal finds that the applicant’s explanation regarding his problems with English is also not acceptable as the applicant had arrived here on a higher education sector visa with a responsibility to study a registered course and progress academically. It was open to the applicant to spend more time studying his English and ensuring he was in a position to successfully proceed with his original enrolment in a Bachelor of Engineering which was the requirement of his visa. As stated above the Tribunal also does not accept the applicant’s explanation regarding his lack of study success here attributing this to poor advice from his agent as it is the applicant’s responsibility to ensure that he abides by the condition of his visa and study a registered course. In regard to the applicant’s evidence about his separation syndrome and ill health the Tribunal does not accept that this is adequate evidence to explain his many cancelled enrolments and his inability to successfully complete most of those enrolments. The applicant could have informed the Department of the problems he was having with his study here and have ceased studying for a period of time and then reengage with his study program at a suitable time. Instead of which the applicant has now been here for several years without successfully studying and his last completed course was in December 2014.

29. The Tribunal has considered the evidence provided by the applicant including the applicant’s stated health issue, his assertion of poor advice from his agents and also from some educational institutes and other parties but finds that the applicant has not provided adequate evidence that causes the Tribunal to give weight to this in favour against cancelling the applicant’s visa.

30. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

31. 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’.

32. The Tribunal has considered any submissions provided to the Department, and to the Tribunal, and also the evidence taken at the hearing.

    ·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

33. The applicant stated that he came to Australia because he wanted to study at higher education level. As above the applicant stated that he had a Bachelor of Civil Engineering gained back in his home country but wanted further higher education here in Australia.

34. The applicant stated that he has parents and his sister back in his home country and has his partner here who he has been with since 2017 who is a permanent resident.

35. He stated that he was currently working as a truck driver earning approximately $500AUD per week.

36. The Tribunal invited the applicant to provide any evidence he wished in regard to whether he has a compelling need to remain in Australia on student visas. The applicant responded that “I came here to fulfil my dream. I came here to learn English and I can speak English well now. This will help me, complete my studies. It’s been a long time that I’ve been here if I go back I will spoil my future.”

37. The Tribunal has considered the evidence provided by the applicant and the applicant’s statements above and finds that the applicant has not provided any evidence that he has a compelling need to remain in Australia on student visas. In particular, the Tribunal notes that the applicant already has a high level qualification gained back in his home country, a Bachelor of Civil Engineering, and has now been here for several years without being able to make a success of his further enrolments here in Australia. The applicant has not demonstrated that he has a compelling need to remain here on student visas.

    ·the extent of compliance with visa conditions

38. The Tribunal has found that the applicant was in breach of his student visa conditions and that his visa should be cancelled.

39. The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period.

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

40. When asked by the Tribunal to provide any evidence as to a degree of hardship that may be caused should the applicant not to be able to remain here on Australia on student visas the applicant responded: “I feel hardship if I go back I will not be eligible for jobs back there. Also I have responsibility for my parents back there. It’s been five years which is a big gap for me so I need to complete my study and make a better future.”

41. The Tribunal has considered the evidence provided by the applicant, in particular the applicant’s statements above and does not accept the applicant’s argument that he would not be eligible for jobs back in his home country as the applicant already has completed his high school level education and successfully completed a Bachelor of Civil Engineering. The Tribunal does not accept that the applicant not being able to remain here in Australia on student visas would cause any hardship to the applicant.

1. It is noted by the Tribunal that the applicant has a partner here in Australia who is a permanent resident but finds that the applicant’s partner could return back to the applicant’s home country with him and that they could make a life together under those circumstances.

2. The Tribunal finds that the applicant would not suffer a degree of hardship of a financial, psychological or emotional nature by not being able to remain in Australia on student visas.

   ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

3. The Tribunal has considered the evidence of the applicant and does not find that there are any circumstances, including a relationship breakdown or a family violence matter that would lead the Tribunal to have the view that the visa cancellation was not the applicant’s responsibility.

4. The Tribunal therefore finds that there are no grounds for cancellation beyond the visa holder’s control.

   ·past and present behaviour of the visa holder towards the department

5. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in his dealings. However, this is expected of all visa holders.

   ·whether there would be consequential cancellations under s.140

6. There is no evidence of consequential cancellations under s 140.

   ·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

7. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three year exclusion period unless relevant Public Interest Criterion is met.

8. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

   ·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

9. There is nothing before the Tribunal to indicate any international obligations to consider.

   ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

10. No such considerations are relevant in this case.

    ·any other relevant matters

11. The Tribunal has given consideration to the applicant’s evidence in regard to any reasons why the applicant’s student visa should not have been cancelled. In particular the Tribunal has considered the applicant’s evidence regarding his difficulties here in Australia maintaining his enrolments and the stated reasons why he was having these difficulties. However, the Tribunal does not find that this is an adequate set of circumstances that presents as a compelling need for the applicant to remain here in Australia on student visas.

12. The Tribunal also appreciates that an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment back in his home country. It is noted by the Tribunal that the applicant already has a significant tertiary qualification in an area that is of significant demand back in his home country, that is, his civil engineering degree. The economy of India and its rapid industrial development would ensure a significant demand for civil engineering graduates. The Tribunal also finds that the applicant could proceed with some further study back in his home country should he wish to.

13. The Tribunal has considered the applicant’s statements and evidence given at the hearing however finds that the applicant was in breach of his visa conditions, and that the evidence provided by the applicant was not adequate enough to demonstrate that the applicant had a compelling need to remain in Australia on student visas or would suffer any particular hardship by having to return to his home country. The Tribunal concludes that the visa should be cancelled as the applicant is not, or not likely to be, a genuine student.

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

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Witts
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.