SINGH (Migration)

[2019] AATA 1780

SINGH (Migration) [2019] AATA 1780 (19 March 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Malkeet SINGH

CASE NUMBER:  1716179

HOME AFFAIRS REFERENCE(S):           BCC2017/2084207

MEMBER:Brendan Darcy

DATE: 19 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

Statement made on 19 March 2019 at 4:15pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –whether the applicant has breached condition 8202– enrolled in a registered course  –valid COE provided – applicant genuinely tried to mitigate his non-compliance– genuine student –decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 July 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 had breached a condition imposed on his student visa and the grounds for cancellation outweighed the grounds for not cancelling. 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 8 March 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. It is noted the applicant provided a copy of the delegate’s notification to cancel his student visa but he did not provide the delegate’s decision record. 

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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).

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

10. The delegate’s notification of the decision to cancel submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 16 December 2014 and that he was not enrolled in a registered course of study for the period 19 November 2026 and 22 June 2017.

11. At the scheduled hearing, the applicant was provided a copy of the Provider Registration and International Students Management System (PRISMS) pertaining to his own enrolment history under the Act’s adverse information provisions. It was explained to him the information indicates to the Tribunal when he was enrolled and in what coursework, whether enrolments were cancelled or coursework was completed as an indicating of academic progress. The Tribunal explained that the information would make reason or part of the reason to affirm the decision to cancel his visa indicating that he was in breach of condition 8202, the extent of his non-compliance and the purpose for which the applicant travelled to Australia, in the context of the applicant having difficulties recalling with any accuracy about his past enrolments. It was further explained that he did not have to respond immediately. The applicant was provided with short adjournment to familiarise himself with the information.

12. As discussed with the applicant, PRISMS indicated that the applicant had been enrolled at the time of the visa’s grant in a Certificate IV in Frontline Management and a Diploma of Management and a Bachelor of Business (Executive Administration) at Academies Australasia Polytechnic (AAPoly).  It further mentioned that he had only completed the abovementioned certificate and diploma but he did not commence the Bachelor’s degree whose enrolment ended on 2 June 2015.

13. As further discussed with the applicant, it also indicated the applicant later enrolled in a General English coursework, Certificates III and IV in Commercial Cookery and a Bachelor of Tourism and Hospitality Management at PAX Institute. While the applicant completed the English language coursework, the vocational course work was not finished and the Bachelor degree was cancelled on 18 November 2016 without being commenced. 

14. The applicant did not re-enrol in any further coursework (Certificates III and IV in Commercial Cookery and a Diploma of Hospitality) until 23 June 2017 and there is no indication the applicant had re-enrolled in any further degree level coursework.

15. The notification of cancellation indicates the applicant was further contacted by a departmental official by issuing the Notice of Intention to Consider Cancellation (NOICC) on 7 July 2017, and to respond within five working days.

16. As part of the applicant’s response to the NOICC, he submitted Confirmation of Enrolments (CoEs) reading the vocational coursework referred to in paragraph 14. The NOICC did not argue the applicant was non-compliant with condition 8202.

17. The Department proceeded to cancel this student visa on 19 July 2016.

18. At the hearing, the applicant did not disagree with the applicant’s non-compliance existing in the first place.

19. On the evidence before it, the Tribunal accepts that the applicant had not been enrolled in any coursework between 19 November 2016 and 22 June 2017.

20. However, the delegate erred in finding that that he applicant had been enrolled in a registered course of study commensurate with condition 8202 between those dates as the applicant had not further re-enrolled in a Bachelor or other degree level coursework from 19 November 2016 at all.

21. Therefore the Tribunal finds that the applicant was not enrolled in a registered course study between 19 November 2016 and the date cancellation on 19 July 2017 – more than six months

22. Accordingly, the applicant has not complied with condition 8202(2) and had breached s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

23. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

24. At the beginning of the hearing, it was explained by the Tribunal the consideration of the discretion to the applicant and that he was able to provide any information which he considered was relevant to whether the visa should be cancelled or not.

    The purpose of the visa holder’s travel and stay in Australia

25. The applicant has some academic achievements since he has arrived in Australia, namely he completed an English language coursework, a Certificate of Frontline Management, a Diploma of Management diploma. The Tribunal places some weight on this in his favour.

26. The Tribunal also notices that the applicant provided CoEs indicating that he enrolled in a Certificate III and IV with PAX Institute and that he gained a letter of offer from AAPoly for a Diploma of Hospitality leading to a Bachelor degree in Tourism and Hospitality Management. The dates of the CoEs (23 June 2017) and the letter of offer (21 June 2017) both predated the valid issuing of the NOICC on 7 July 2017.  In the applicant’s NOICC response, he implored the delegate to consider that the timing of these enrolments indicated the applicant’s true intentions to study in Australia. The Tribunal places some weight on this enrolment prior to the NOICC’s issuing on 7 July 2017. This indicated to the Tribunal that the applicant genuinely tried to mitigate his non-compliance and that he was motivated to complete further coursework.

27. In the applicant’s response to the NOICC, he submitted to the Department it was the applicant’s intention to be returning to India upon completion of his studies to start a restaurant business. During the scheduled hearing, the applicant reiterated this. However, when the Tribunal enquired if a Bachelor’s degree was necessary in fulfilling this ambition, the applicant became visibly upset and added that he stayed in Australia because his parents want him to complete a degree but he wanted to do a vocational education and then re-enrol in a Bachelor’s degree. The Tribunal finds this response consistent with his written claims but the applicant’s emphasis on completing a Bachelor degree based on his parents’ wishes indicated to the Tribunal that he lacked personal motivation.

28. The Tribunal has further considered the relatively young age of the applicant. At the time of visa’s grant, the applicant was nineteen (19) years of age. At the time of the hearing, he was twenty three (23) years of age. It is not uncommon for young men and women who travel to Australia for study purposes to be unsure of their academic and career goals, to change direction in this regard and/or to enjoy the relative freedoms Australia offers while being without parental supervision for the first time in their lives at the expense of their studies. When the Tribunal raised this factor with the applicant, he simply stated he had made mistakes.

29. In assessing whether the review applicants travelled for the purposes of full time study as holders of student visas are required, the Tribunal cannot dismiss the force of parental and societal expectations and should be wary of over-emphasising personal or individualistic motivations to complete coursework. In the context of the applicant having re-enrolled into a coursework prior to the issuing of the NOICC and his partial academic progress to date, the Tribunal finds there is insufficient reasons to determine that the applicant did not came to Australia to complete a Bachelor or other higher degree study for which he was granted the Subclass 573 visa. The Tribunal accordingly finds that the applicant is a genuine student who is motivated and capable of completing a Bachelor’s degree. The Tribunal accordingly places considerable weight on this finding in favour of the visa being reinstated.

    Extent of any breach of a visa condition (if relevant)

30. There is no evidence before the Tribunal that the applicant has breached any other conditions imposed on his student visa other than condition 8202. The Tribunal places some weight on this factor in the applicant’s favour.

31. The Tribunal also notes that the applicant was non-compliant with condition 8202 for more than six months. The Tribunal relevantly assesses this to be notable but not a considerable amount of time. In the context of the applicant’s evidence that he acquired a letter of offer for a Bachelor’s degree prior to the issuance of the NOICC to mitigate his non-compliance with condition 8202, the Tribunal places some but not a notable or considerable amount of weight in favour of the visa remaining cancelled. 

    Degree of hardship that may be caused

32. The applicant has consistently stated that he and his family have already spent a lot of money on his studies and his appeal over the last four years with very little to demonstrate for that effort, namely a Diploma of Management but no Bachelor degree. He further stated in the hearing that while his parents have been financially supportive and continue to care for him, he was distressed by the level of disappointment it would cause them, especially his mother who has a number of health issues. Since the applicant’s response to the NOICC, he has provided medical information that his mother has hypertension and heart disease. The Tribunal has some but not a considerable sympathy for the applicant in this regard and places some weight on these emotional hardships in favour of the visa not remaining cancelled.

33. The applicant further argued that he has not disclosed to his parents that he has been a long term meaningful romantic relationship with his girlfriend, an Australian citizen, and he fears that if he returns that he will not only be separated from her, causing emotional distress, but that he will forced into an arranged marriage.  The Tribunal is aware of the strong cultural and societal pressures on Indian men and women to enter into arrange marriages, even when they are opposed to them and are in favour of ‘love marriages’.  The Tribunal accepts the applicant’s testimony to be credible in this regard. It remains within his remit to avoid this hardship, for instances, by relocating with India which is a vast and populace country, although estrangement with his family will entail some other hardships. The Tribunal accordingly assesses the degree of emotional hardship will be substantial but not significant or severe, if the visa were to remain cancelled.  

34. Overall, the Tribunal gives the degree of emotional hardship resulting from the visa being cancelled some notable weight in favour of the visa not remaining cancelled.

    Circumstances in which ground of cancellation arose

35. In the his NOICC response, the applicant has lamely and unconvincingly argued that he was non-compliant with condition 8202 due to his mother’s health which lead to her being admitted into hospital in October 2016. It was further argued that this lead to emotional and psychological stress. The applicant added in the hearing that the hospitalisation and drug costs let to the applicant not having enough money to afford tuition fees. He submitted to the Department and the Tribunal a number of documents to illustrate his mother’s ill health from heart disease and hypertension. However the applicant failed to submit any information that his mother was hospitalised for treatable diseases. Furthermore he provided no medical or psychological reports about his own mental health which would have incapacitated him from his studies. The Tribunal also found the arguments about not being unable to afford tuition fees unconvincingly as his mother was not generating as a homemaker while his father continued to earn a farm income and support the tuition fees of his brother in Canada.

36. In short, the Tribunal does not accept the applicant‘s claimed extenuating, exceptional or compelling circumstances to be credible or reliable reasons for explaining his non-compliance the condition 8202, leading to the cancellation of this visa. The Tribunal places no weight on this factor.

    Past and present conduct of the visa holder towards the department

37. There is no information before the Tribunal to indicate any concerns in the applicant’s behaviour towards the Department. The Tribunal gives this factor little weight in favour of the visa not being cancelled.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

38. This factor is not relevant.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

39. Whilst the visa remaining cancelled will mean the applicant has no substantive visa to remain in Australia and he may be barred from re-entering Australia for up to three years.  This is an intended consequence of the cancellation regime. The applicant said that while his migration agent said to wait for the outcome of this review, the mandatory legal consequences will lead him to be separated from his girlfriend whom he has developed a meaningful relationship over the last two years.  The Tribunal gives this factor little weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

40. The applicant does not have any dependents attached to his cancelled student visa. This factor is not relevant.

    whether any international obligations would be breached as a result of the cancellation

41. The applicant stated in the hearing that he feared returning to India as because he cannot face his parents after spending four years in achieving so little. He also stated that he feared his parents would force him into an arranged marriage. He said his mother would be adamant about an arranged marriage in his case as his brother now living in Canada entered into a love marriage while outside of India. The Tribunal has some sympathy with the applicant in this regard. However, as the applicant has not applied for a protection visa to date and will not be barred from doing so under s.48, the Tribunal places only some weight on this factor in favour of the visa not being cancelled.

    Any other relevant matters raised by the visa holder.

42. The Tribunal has also taken into account that the applicant has matured since he was non-compliant with condition 8202 and the cancellation of his visa, indicating he has the capacity to complete a Bachelor’s degree and remain compliant with any new student visa to be granted. The Tribunal places some weight on this favour in his favour.  

    Conclusions

43. The fact remains that the applicant was not compliant with condition 8202 and he has not provided any compelling and reliable reasons for his non-compliance. These are serious matters in considering that the visa should not be reinstated. Nevertheless, the Tribunal has places significant and generous weight on the applicant being a genuine student who travelled to Australia for the purposes to complete a degree level qualification as expected of a holder of a Subclass 573 student visa and who has matured since his non-compliance. It has also taken into account that the applicant will face a notable degree of emotional hardship if the visa remains cancelled.  

44. The Tribunal accordingly finds there are more factors, cumulatively considered, in favour of having his visa reinstated than in favour of the visa remaining cancelled.  The correct and preferable decision given the circumstances of this case is that the visa should not be cancelled.

45. The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia and that he wishes to pursue vocational education and training. Due to changes in the Migration Regulations, neither Subclass 572 nor Subclass 573 visas are available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.

46. The applicant should be aware that the Tribunal only reached this decision marginally in his favour.

47. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

48. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

    Brendan Darcy
    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.