Singh (Migration)

[2019] AATA 622

Singh (Migration) [2019] AATA 622 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karandeep Singh

CASE NUMBER:  1714508

HOME AFFAIRS REFERENCE(S):           BCC2017/1480113

MEMBER:Brendan Darcy

DATE:26 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2019 at 4:58pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend Tribunal hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – limited academic attainment – explanation for non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
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 30 June 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 condition 8202 as he was not enrolled in a registered course for full-time study. 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 was invited to appear to a scheduled hearing for 26 February 2019 via an email account pertaining to the applicant’s authorised recipient and representative. Two reminder SMS messages were sent to the applicant’s mobile phone about the scheduled hearings on 19 and 25 February 2019 (which failed to deliver).  

4. The Tribunal did not receive any response to the invitation to attend the scheduled hearing. Neither did the Tribunal receive any submissions by the applicant or on the applicant’s behalf to consider a postponement, including a medical certificate; nor any other submission whatsoever, right up to and including the beginning of the scheduled hearing.

5. As noted above, the applicant was represented in relation to the review by his registered migration agent. However there has been no documents, no submissions, no written responses to any hearing invitation and no requests for postponements forwarded to the Tribunal to consider, either from the applicant or from anyone on his behalf, right up to the time of making his decision.

6. The Tribunal notes that the applicant departed Australia on 5 November 2018, according to movement records, but was still required to invite the applicant to present evidence and present arguments. It was open to the applicant and his representative to request for a withdrawal of this review application or a hearing via teleconference. However no such requests were forwarded to the Tribunal.

7. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to proceed with its decision-making on this review application without taking any further action to enable the applicant to appear before it.

8. 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

9. 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?

10. 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).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. 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).

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

15. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 4 November 2014 and was due to expire on 23 March 2018.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was not enrolled in a registered course of study from 12 October 2016 to 19 June 2017.

16. On 29 May 2017, the Department contacted the applicant to obtain his personal email address and on the same date the Department forwarded a Notice of Intention to Consider Cancellation (NOICC), inviting the applicant to respond in writing.

17. On 9 June 2017, the applicant requested an extension to the response which was granted.

18. On 19 June 2017, the applicant’s representative submitted a written response, in which the applicant did not dispute there were grounds for the cancellation of this visa under review.

19. Attached to the NOICC included copies of Confirmations of Enrolment (CoEs) which indicate he was enrolled in a package of coursework which included a Bachelor of Business at Acknowledge Education Pty Ltd (Acknowledge) from 19 June 2017.

20. On behalf of the Minister, the delegate proceeded to cancel the applicant’s student visa on 30 June 2017. 

21. The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal on 6 July 2017 with the decision record attached.

22. There are no further submissions about the grounds for cancellation received by the Tribunal and the applicant did not attend the hearing to elaborate on this matter.

23. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 12 October 2016 and 19 June 2017.

24. As the applicant has failed to comply with the visa condition 8202, the ground for cancellation in s.116(1)(b) exists.

    Consideration of the discretion to cancel the visa

25. Having found that the applicant had breached with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

26. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

27. In response to the Department’s NOICC, the applicant submitted the following supporting documentation

    ·A copy of hand written exempt letter;

    ·A copy of a Form 956 appointing a migration agent as his representative in this matter;

    ·A Copy of an enrolment letter from Acknowledge dated 19 June 2017;

    ·Copies of CoEs dated 19 June 2017 indicating the applicant was enrolled in a package of coursework with Acknowledge;

    ·A copy of record of results in a Diploma of business from Australian Technical and Management College (ATMC);

    ·Copies of medical information in relation to the applicant;

    ·A copy of his passport; and

    ·A written submission by the applicant’s representative.

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

28. According to the decision record, the delegate found that the applicant’s original stated intention at the time of his visa application does not constitute a reason not to cancel his visa.

29. The applicant’s representative submitted evidence that he has completed a Diploma of Business in 2015. The submission further mentioned that he applicant unexpectedly suffered some health issues in July 2015 and then cancelled his enrolment in December 2015 following surgery and convalescences and argued that the Department should take into consider that the applicant had enrolled in a Certificate III and IV in Commercial Cookery, a Diploma of Hospitality Management and a Bachelor of Business after the issuing of the NOICC.  The representative also stated that the applicant’s previous academic record is excellent and a qualification is necessary for his profession; however there is no evidence to support this academic record to be worthy of the exaltation ‘excellent’. Nor is any specific profession towards which the applicant has been working identified in this response. In the context of the applicant’s very limited academic achievements and his non-appearance at a scheduled hearing, the Tribunal places very little weight in the applicant’s very limited academic attainment since arriving in Australia in favour of the and it places no weight on the applicant’s late enrolments after the issuing of the NOICC in favour of the visa not being cancelled.

30. With regard to the applicant’s NOICC response, there are limited written reasons elaborating on the purpose of the applicant’s seeking to have his visa reinstated. He states that the applicant’s father is a businessman whose great expectations of the applicant included completing his studies and gaining an Australian qualification prior to returning to India to pursue a business opportunity. No type of business opportunity is mentioned.  The applicant did not attend the hearing to elaborate on these very vague academic and business goals or even his father’s expectations. Had he been genuinely motivated to study in Australia for a qualification, it would be reasonable to expect the applicant to participate meaningfully in this review application. In the context of the applicant’s non-appearance, the Tribunal finds that the applicant has failed to convincingly demonstrate any specific academic or career goals. It accordingly places no weight on this factor in favour the visa not being cancelled.

31. Overall, based on the available evidence, the Tribunal finds there is applicant is not a genuine full-time student committed  and it places no weight towards his visa not remaining cancelled as the applicant’s purpose of travelling to and remaining in Australia was not study. 

    The extent of compliance with visa conditions

32. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions.

33. The Tribunal assesses the period of time of non-compliance with condition 8202 was around nine months which is a considerable amount of time. There is no evidence he sought deferment or suspension of his studies, yet he was able to re-enrol in a registered course almost immediately after the issuing of the NOICC. The Tribunal gives this factor significant weight towards the visa being cancelled.

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

34. The written response to the NOICC stated that he applicant has a lot of responsibilities on his shoulders: his father’s expectations that he will take over the family’s duties on his return and that he will have to leave Australia without any qualification necessary to enhance skills and improve his chances with his profession. The profession is not identified. It also mentioned that some financial hardship will be incurred as the applicant may not be able to secure employment attracting the remuneration he might otherwise achieve with a qualification.

35. The Tribunal finds these assertions vague and unpersuasive. There is a lack of oral and written evidence to the Tribunal because the applicant did not attend the scheduled hearing or provide any submissions. There is no evidence the applicant could not pursue a degree, a qualification or a profession within India or that he had experienced any hardship since departing Australia. He has also departed Australia with at least one qualification: a Diploma of Business, indicating that he would not be returning without at least one qualification.

36. Nevertheless the Tribunal accepts that the applicant may suffer some financial hardship and other challenges in seeking any further studies, qualifications or work, if the visa remains cancelled. However it finds the applicant has not demonstrated any significant or even notable hardships at all. The Tribunal gives this factor little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

37. The applicant has claimed in his NOICC response that he suffered some medial problems in July 2015 and that he returned to India between July and October 2015 for surgery. When he returned he claimed he was still recovering and cancelled his enrolment. The delegate provided some weight to in his favour. However, the Tribunal places no weight on this factor as the applicant’s significant period of non-compliance with condition 8202 began in October 2016 and it does not accept such a routine surgery as a hernia operation would have caused the non-compliance, especially considering that the applicant admitting to working on a part time basis. While it is noted the applicant has attempted to claim that he was not in good health and had loss of concentration leading to his non-compliance, he has provided no specific medical or psychological evidence this regard; that is the submitted medical evidence only pertains to the second half of 2015 (expect for a $75 dollar consolation with a doctor in Australia dated 4 October 2016 which does not indicate any serious medical problems).

38. Indeed, the Tribunal finds that this medical explanation for his non-compliance is so weak that it invites the Tribunal to consider that it has been submitted as a contrivance in order to garner a favourable outcome in this review applicant. The Tribunal finds that the specific medica and psychological explanations lacking in credibility.

39. The applicant has also claimed that he was unable to undertake studies in January 2016 at Academies Australia Polytechnic due to the lack of support for international students, crowded classes and too much pressure for him to handle. The applicant claimed he cancelled his enrolment at this education provider and that he did not realise he should have consulted with a registered migration agent at the time. Furthermore, he was stressed and not in a healthy state of mind. This, he argued, lead to the breach of condition 8202.

40. The Tribunal does not accept these unsubstantiated and unfounded explanations. The applicant did not require a registered migration agent to know that he was not compliant with condition 8202 as he was informed when the visa was issued and that it was his responsibility to remain compliant as a temporary visa holder.  There is also no evidence that that the applicant’s claims about the state of education were so poor it prevented him from studying or being enrolled. For instance; there is no evidence that the applicant ever lodged a complaint against the education provider. It was also open to him to change education providers, as he already done so. Furthermore there is no psychological or medical evidence that he was not in a health state of mind.

41. Moreover, the applicant has not accounted for the long period of time he was not compliant with condition 8202. Neither has he provided credible reasons he was able to so promptly acquire enrolments after the issue of the NOICC, indicating he had the capacity to mitigate his non-compliance.

42. The applicant has neither presented nor advance any credible extenuating, exceptional or compelling circumstance in which the ground for cancellation arose, either to the Department or the Tribunal, at all. The applicant was provided with meaningful opportunities to do so, including at a schedule hearing at which he did not attend or provide any explanations for his non-appearance. For the reasons stated above, the Tribunal gives this lack of any credible explanation for his non-compliance significant weight towards the visa remaining cancelled.

    Past and present conduct of the visa holder towards the Department

    There is no evidence the applicant’s past and present conduct towards the Department or the Tribunal is factor towards this visa remaining cancelled.

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

43. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

44. The Tribunal notes that the applicant has departed Australia with a bridging visa with no permission to return.  It accepts that he may be barred from re-entering Australia for up to three years as he will subject to the operations of s.48 of the Act. Furthermore the applicant is not guaranteed that his offshore visa will be approved as he will be subjected to the Public Interest Criterion 4013. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

45. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

46. The applicant appears to have departed Australia for his country of nationality. He has presented no specific evidence in relation to this factor. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Other relevant considerations

47. There are no other relevant considerations other than the overall lack of responsiveness by the applicant to provide any explanations about the cancellation of this visa to the Tribunal. This is despite having several meaningful opportunities to do so, including a scheduled hearing. Had the applicant any genuine or urgent reasons not to have the visa cancelled, it would be reasonable to expect his participation in this review application and that his evidence and arguments would have extended further beyond the vague and limited information provided in his NOCIC response. The Tribunal places significant weight on this lack of attendance in favour of the visa remaining cancelled.

    Conclusion

48. Having found that the applicant has not complied with a condition of the visa to a significant extent, the Tribunal must consider whether to exercise its discretion to cancel the visa.

49. In this matter, the factors in favour of the visa remaining cancelled overwhelming outweigh those countervailing factors in favour of the visa not being cancelled.

1. Considering the evidence provided and on weighing the above factors and considering the accepted circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

2. The Tribunal affirms the decision 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.