SINGH (Migration)

[2019] AATA 1900

SINGH (Migration) [2019] AATA 1900 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURBAKSH SINGH

CASE NUMBER:  1701345

HOME AFFAIRS REFERENCE(S):           BCC2017/116394

MEMBER:Wendy Banfield

DATE:25 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 March 2019 at 11:05pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-enrolment period of 8 months – vicissitudes of life – able to work during non-enrolment period – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 24 January 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 was not enrolled in a course of study from 3 May 2016 to 16 January 2017. Therefore the applicant was in breach of the conditions attached to his student 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.

   Background

3. The applicant is a citizen of India and is currently 24 years old. He was granted a Subclass 573 visa on 15 December 2014 and arrived in Australia on 21 December. The applicant commenced studying in Australia but did not maintain enrolment. After he was notified by the Department that his visa may be cancelled, the applicant re-enrolled in an Advanced Diploma of Leadership and Management and a Bachelor of Business.  

4. The applicant appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. 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

6. 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?

7. 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).

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

9. The applicant did not dispute that he was not enrolled to study for a period of 8 months, from 3 May 2016 until 16 January 2017. Although the applicant re-enrolled to study in January 2017, this occurred after a lengthy period of non-enrolment. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Section 376 Certificate

10. During the course the hearing, the Tribunal advised the applicant of the existence of a s.376 Certificate in relation to documents in the Departmental file. The Tribunal is satisfied that the Certificate is valid because it relates to information received by the Department and concerns Tribunal’s discretion to disclose information. The applicant was advised he would be given the opportunity to comment on the information that was to be put to him. The Tribunal then outlined to the applicant that the information received by the Department was that he and another person living at the same address were working full-time for a cleaning company and are not genuine students.

11. The applicant decided to respond to the information and advised he believed in honesty. He stated he had been working but had been studying as well. He said he came from a farming family who had been providing financial support but had suffered crop losses. According to the applicant there was a period of time where he had been working just to survive but reiterated his claim that he had also been studying. The Tribunal asked the applicant whether he was working during the period when he was not enrolled and not studying. He said he was not working “properly” because he had started drinking but when he needed money he would work due to his habit.

12. The Tribunal finds the information covered by the s.376 Certificate and the applicant’s response to it weighs against him because it indicates the applicant was working while claiming he was unable to study.

    Consideration of the discretion to cancel the visa

13. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

    ·     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

14. The applicant advised he came to Australia to study and hopes to be a business advisor on his return to India. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

15. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. He said wanted to finish his studies here and have a better future but stated he did not have anything further to say. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

16. There is evidence before the Tribunal that the applicant has not complied with other visa conditions, namely working during the period he claimed to be unable to study and the Tribunal has taken this into account. In addition, failure to maintain enrolment and engage in a course of study for 8 months is a fundamental breach of a student visa which also weighs against the applicant in this case.

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

17. The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant said that when he decided to recommence his study his visa had still been valid. He claimed that if he returned to India without completing any study in Australia it would be difficult for him because international qualifications are important to employers in his home country. The Tribunal found the applicant’s submissions to be vague and generalised and is not satisfied the applicant has provided sufficient evidence of hardship should his visa be cancelled.

18. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     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

19. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for an 8 month period. The applicant’s reasons were that he was in a relationship with a fellow student who he hoped to marry but she left him leading to depression. A letter from a medical practitioner dated 17 January 2017 was submitted to the Department in this regards. He claimed he had also been in a car accident and had deferred his studies for a period of time as a result. The applicant said during the relevant period he began spending time with friends and drinking day and night. He agreed he was aware it was a requirement that he maintain enrolment and study. According to the applicant he had sought re-enrolment just prior to receiving the Department’s Notice of Intention to Consider Cancellation letter (NOICC) and was issued a COE the day after. He said he did not consider seeking treatment for depression at the relevant time but had done so later.

20. The Tribunal accepts the applicant experienced personal problems however, the applicant’s response to these matters were within his control. The issues faced by the applicant are part of the vicissitudes of life that most people encounter at some point. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa and failing to study over a long period of time.  

21. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled to study, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

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

22. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

24. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years.

25. The applicant said his family would be affected by a decision to cancel his visa, including his parents and three sisters. However, he did not elaborate and the Tribunal does not consider the intended consequences of the legislation are sufficient reason for the applicant’s visa not to be cancelled.

    ·     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

26. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

27. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

28. The applicant submitted he had been studying and should be able to continue, however, the Tribunal is not satisfied the applicant’s ongoing intention in Australia is his education. He submitted an offer of enrolment but it was out of date. He claimed he would be beginning a Bachelor degree in May 2019 and has a new COE but the Tribunal considers the applicant has had ample opportunity to complete his studies at the higher education level which was the purpose of the visa grant.

    Conclusion

29. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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.

    Wendy Banfield
    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.