SINGH (Migration)

[2019] AATA 1485

SINGH (Migration) [2019] AATA 1485 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr PARMINDER SINGH
Mrs BANDANA CAMBOW
Ms GREESHA RUPRA

CASE NUMBER:  1705345

HOME AFFAIRS REFERENCE(S):           BCC2017/132798

MEMBER:Brendan Darcy

DATE:31 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU (Subclass 572) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 31 January 2019 at 10:30am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 visa – not enrolled in a registered course – not enrolled in a registered course for a long period – no credible evidence regarding agent’s non-compliance – credibility issues – not demonstrated any hardships in general – applicant not a genuine student – no jurisdiction regarding other applicants – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140, 348
Migration Regulations 1994 (Cth), Schedule 8 condition 8202, r.2.43(1)(Ia)

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 first named applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa of the first named applicant, Mr Parminder Singh, on the basis he had not complied with condition 8202(2) of Schedule 8 to the Migration Regulations 1994 and that the delegate was not satisfied the grounds not to cancel the visa outweighed the grounds for cancelling. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act.

4. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants: the second named applicant, Mrs Bandana Cambow, and the third named applicant, Ms Greesha Rupra, who is a minor.

5. The first named applicant appeared before the Tribunal on 30 November 2018 to give evidence and present arguments. The other applicants did not attend the scheduled hearing and the Tribunal did not receive oral evidence from a third party.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

7. At the end of the hearing, no further documents were specifically sought by the Tribunal; however it provided the applicants and their representative until 7 December 2018 to submit any further documents or written arguments.  On 7 December 2018, on behalf of the applicants, their representative submitted a further legal submission dated 6 December 2018; two (2) character statements from third parties;  an extract from VicRoads; letters of educational attainment; a one-page screenshot showing a text message exchange; and a further statement from the first named applicant.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the first named applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether first named applicant (or 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.

12. The first named applicant (or the applicant) first arrived in Australia on 23 October 2009 holding a Class TU Subclass 572 student visa for vocational education. The applicant was later granted a further Subclass 572 student visa on 27 April 2011. The applicant then held a third visa – a Subclass 573 visa - granted to him on 30 July 2014. The applicant submitted a number of documents indicating that he completed English language course work, a Certificate IV in Business Administration, a Diploma of Management and an Advanced Diploma of Management while he held these student visas and provided a statement that he did not complete a Diploma of Automotive Management and these latter two enrolments occurred in June 2016.

13. On 3 October 2015 he held a Class TU Subclass 573 student visa for Higher Education which was granted to him and the other applicants on 17 September 2015. These visas were set to expire on 15 March 2017.

14. According to the delegate’s decision submitted to the Tribunal, the Provider Registration and International Students Management System (PRISMS) records indicate the applicant was not enrolled in a registered course of study from 2 June 2016.

15. The applicant was validly issued with a Notice of Intention to Consider Cancellation (NOICC) by the Department of Immigration (now Home Affairs) on 2 March 2017. The NOICC invited the applicant to respond in writing within 5 working days.

16. No response to the NOICC was received.

17. The Department proceeded to cancel the applicant’s student visa on 14 March 2017.

18. The applicants applied to the Tribunal to have the delegate’s cancellation decision reviewed by the Tribunal on 20 March 2017.

19. During the scheduled hearing with the Tribunal, the applicant did not dispute that the grounds for the cancellation existed, although he advances there had been circumstances beyond his control.

20. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study from 2016.

21. The Tribunal notes that the applicant was the holder of previous Class TU student visas between 29 September 2009 and 15 March 2013 and held a bridging visa between 15 March 2013 and 10 April 2013.

22. 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).

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

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

24. 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).

25. The Tribunal again notes that the applicant did not provide any written response to the issued NOICC and that it has relied on the written, documentary and oral evidence submitted to the Tribunal, including evidence submitted during the scheduled hearing.

26. On the day of the hearing, the applicant’s representative provided a late submission noting they were only appointed as the applicant’s representative on the day before the hearing. Also submitted were IELTS test results with an overall band score of 7.0; a Confirmation of Enrolment (CoE) indicating the applicant had been enrolled on 15 February 2014 for an Advanced Diploma of Management at Della International College; a certificate of completion for a Diploma of Management dated 14 February 2011 from Ashmark Institute; and a letter of completion regarding a Certificate IV in Business Administration from Della International College dated 24 March 2013.

27. The Tribunal notes that the applicant provided some acknowledgment of receipts and correspondence between the applicant and his former migration agent (MARN: 0955937) variously dated 11 May 2013, 28 May 2014, 29 August 2014, 19 September 2014, 22 December 2014, 13 July 2015, 2 September 2015 and 17 September 2015. There is a tax receipt to the Department indicating the applicant paid a visa fee for a student visa on 22 December 2014. The representative also submitted publicly available reports that the same had been suspended by the Office of Migration Agents Registration Authority and was later re-registered to provide migration advice and assistance since 13 March 2018.

28. A valid CoE dated 29 November 2018 for the applicant to study an Advanced Diploma of Leadership and Management at AVETA (Australian Vocational Education & Training Academy) had also been submitted.  

29. The Tribunal also acknowledges that the applicants’ representative submitted three Tribunal decision records (1613486, 1614292 and 1702971) which it was argued were pertinent to the applicants’ circumstances.

30. As mentioned above, on 7 December 2018, on behalf of the applicants, their representative submitted a further legal submission dated 6 December 2018, which included two character statements from third parties; an extract from VicRoads; letters of educational attainment; a one-page copy of a screenshot showing a text message exchange; and a further statement from the first named applicant. The statement by the applicant states (unedited):

    “[…] it was unfortunate and completely un-intensional and happened due to misguiding for Mr Mohit nakra  (my former migration Agent) 

    IU am very keen to study Bachelor of Business, it will be very stressful and shameful for me if I will have to go back with any higher qualifications. This shameful situation can also lead to falling his marriage apart. I request the Respected member of tribunal to please give me on more chance to prove my words.

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

31. According to the decision record, there is no evidence to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study since the granting of the second visa. The applicant did not respond to the NOICC‘s invitation to elaborate on this factor.

32. The Tribunal accepts the applicant has successfully completed a Certificate III in Automotive, a Certificate IV in Business Management, a Diploma of Management and an Advanced Diploma of Business Management. It also accepts on face value that the applicant completed about half of his Advanced Diploma of Marketing in 2016, as claimed at the hearing and it places some favourable weight in favour of the applicant as a vocational student with the capacity for full time study.  

33. With regard to the applicant’s very late valid CoE dated 29 November 2018 for an Advanced Diploma of Leadership and Management at AVETA (Australian Vocational Education & Training Academy), the Tribunal finds that the CoE that was gained many months after the cancellation of his student visa and one day before the hearing had been submitted solely for the purposes of a favourable outcome of this review application. Accordingly it places no weight on this as indicating the applicant is a genuine student whose intention is to remain for the purposes of full time study.   

34. However, at the hearing, the applicant claimed he wanted to return to India to manage the family’s real estate and property development business after he finished his studies. He added that he wanted to complete a degree level qualification that would be relevant to building this business.  The Tribunal enquired into the reasons the applicant had undertaken automotive studies. The applicant claimed he did so out of a passion or an interest in cars but later wanted to focus on business development coursework. The Tribunal questioned whether the applicant needed a formal vocational qualification to run an existing real estate or property development business; to which the applicant responded that he was not sure but he was sure an advanced diploma was relevant and meaningful to his goals.

35. As discussed, the applicant has been in Australia as a full time student for a considerable amount of time on multiple student visas. The applicant claimed that he undertook automotive qualifications out of personal interest that was not connected to his career goals in business development for his family’s businesses. While the Tribunal accepts the applicant’s family owns and operates real estate and property development businesses, the Tribunal found the applicant lacking in convincing detail that a further diploma-level or a degree-level qualification was compellingly required to advance his career or business goals. The Tribunal does not accept either an Advanced Diploma of Marketing or a Bachelor of Business is essential in such enterprises, although it, along with the applicant’s completed qualifications in business management, may be complementary.  Later in the hearing, the applicant stated there was an expectation on him to remain in Australia with his family when discussing the impact of consequential cancellation of the other applicant’s visas. This further undermined the Tribunal’s confidence that the applicant was genuinely interested in remaining in Australia on a temporary basis, as he had claimed.  The applicant also made a further claim that he had planned to complete a Bachelor of Business before returning to India once he finished an advanced diploma. Had this been the case, it was open to the applicant to do so having graduated from a diploma. Overall, the Tribunal does not accept the applicant’s weak explanations and, in the context of his overall visa history, finds him to be lacking in considerable credibility.

36. For completeness, the Tribunal does not place any weight on the applicant’s IELTS score in favour of the applicant in the context of this overall credibility finding.

37. Based on this adverse credibility finding and individual weightings, it is the Tribunal’s cumulative assessment that the applicant has used successive student visas, including this cancelled student visa under review, not to advance any specific personal, academic, career or business goals but to remain in Australia for some other purpose. The Tribunal accordingly does not accept the applicant is a genuine student whose purpose is to remain in Australia for the purposes of full time study.

38. Overall, the Tribunal gives these findings and considerations some weight in favour of the visa remaining cancelled.

    The extent of compliance with visa conditions

39. There is no evidence before either the Department or the Tribunal to indicate the applicant did not comply with other conditions of the visa. The applicant was not enrolled in a registered course for a long period of time, over a year. The Tribunal considers this significant to the question of whether his visa should be reinstated. The Tribunal gives these considerations limited or some weight towards the visa not being cancelled.

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

40. The delegate, as noted in their decision record, accepted that there may be some financial and other hardships as a result of the cancellation and placed some weight on this consideration in the applicant’s favour.

41. During the scheduled hearing, the applicant claimed he would be embarrassed on returning to India for not finishing his studies, including a Bachelor of Business, and due to the financial costs in tuition fees that have been expended, his travel will appear not worthwhile or as a waste of time. Later in the hearing, the applicant claimed that there was an expectation on him and his wife to remain here and he feared the disruptive impact on his daughter’s development if they were to be excluded from returning to Australia. In his post hearing statement, the applicant wrote that the shameful situation could lead to his marriage breaking down.

42. However the applicant will be returning to India to an existing business with a number of vocational qualifications, including ones pertaining to management. In this regard, he will not be returning without academic accomplishments.

43. The Tribunal notes that the applicant did not advance any psychological conditions beyond claimed feelings of stress and shame to consider.

44. The Tribunal accepts that the applicant may disappoint members of his family and may suffer some emotional hardship; and it accepts there may be pressure on his marriage and feelings of shame if the visa remains cancelled. However, there is no medical evidence of ongoing psychological problems and there is no reliable reason to accept the applicant will be disowned by any members of his family. Had the applicant genuinely valued gaining a Bachelor of Business, as claimed, or made undertakings to remain in Australia to the other applicants and family members, then it would be reasonable to have expected the first named applicant to have earlier enrolled in such studies or sought other migration options. However he did not. The Tribunal has already made an earlier finding that it finds the applicant is not genuinely interested in temporarily remaining in Australia for the purposes of full time study, either in vocational or degree level education.

45. The Tribunal finds on the overall evidence that he has not demonstrated any significant hardships in general and no financial hardships to the Tribunal. 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.

46. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as he was not enrolled in a registered course. The applicant did not respond to the NOICC in this regard. As the delegate noted the applicant failed to maintain his enrolment it placed no weight on this consideration in favour of the applicant.

47. The applicant has maintained in this review that he did not respond because his then agent had failed to respond, despite being instructed to by the applicant. The applicant struggled to outline the exact sequence of events during the hearing.

48. A stronger outline of the applicant’s involvement is provided in the representative’s legal submission. It states that when he lodged a student visa in 2013, the visa was refused due to being unable to demonstrate access to sufficient funds from an acceptable source. The applicant applied to have the refusal decision reviewed by the Tribunal. While the applicant was successful in this appeal and was granted the visa on 30 July 2014, it was argued that the agent had failed to submit the required financial documents to the Department.

49. After completion of the course the applicant returned to the same agent to apply for another visa; the applicant had enrolled in an Advanced Diploma of Marketing at Della International College. The applicant claimed that he realised the course was not the right pathway for him and he was looking for another course to help him gain leadership qualities. In early 2016, the applicant sought advice from the same agent to change courses and the agent undertook to complete the change as part of their paid service. (At the hearing, the applicant claimed he paid the agent as much as 1600 Australian dollars.)

1. The applicant claimed that he was unaware that the agent had not changed the enrolment. As the agent had told the applicant he had a valid visa and there was nothing to worry about, the applicant stopped attending Della International because he was under the false impression that arrangements for the course changeover had taken place with another education provider. When the applicant contacted his agent on several occasions, the applicant claimed the agent told the applicant ‘to wait’.

2. Essentially the applicant has claimed that the cancellation of enrolment due to non-attendance or non-commencement and the breach of condition 8202 were unintentional as he placed too much trust in his then engaged agent.

3. Had the applicant been unsatisfied with the same agent’s service with regard to providing evidence about his financial capacity, it would be reasonable to expect the applicant to use a different agent following that experience. However the applicant continued to pay for the advice and assistance of the same agent he claims was responsible for his non-enrolment.

4. The Tribunal enquired into the reasons the applicant has not submitted any specific email exchanges with his agent about this poor service. The applicant provided a screenshot showing a text exchange with the agent, along with other emails. Having carefully examined this evidence, the text exchanges and emails do not indicate to the Tribunal any misunderstandings or disputes occurring between the applicant and agent about his enrolment leading to the cancellation of his visa or any demands about which specific education provider and course he had been enrolled in. While it accepts that the applicant’s then registered migration agent had been suspended and then later re-registered, there is no evidence before the Tribunal that the applicant complained to the agent about his enrolment or took a conscientious interest in any new enrolment details as part of a paid service (for which evidence of payment had been submitted) in this instance. Furthermore the applicant acknowledged that there were no complaints against the agent or exchanges of texts or emails about the alleged poor service. There is insufficient evidence before the Tribunal for it to simply rely on the former agent’s suspension of his practice to accept the applicant’s specific claims about unintentionally breaching the condition 8202.  

5. In the context of the Tribunal’s other credibility concerns about the reliability of the applicant’s claims, there is no credible evidence before it that the applicant’s agent was solely, primarily, significantly or partially responsible for the applicant’s non-compliance with condition 8202 on 2 June 2016, leading to the grounds for this visa under review to be cancelled by the Department. The applicant has not advanced any further arguments about the financial capacity to pay tuition fees, a relationship breakdown, severe or significant psychological conditions or any other reason.   Based on the overall evidence before it, the Tribunal does not accept that there is any credible or reliable evidence that the applicant endured any extenuating circumstances that were beyond his control that led to the grounds of this visa under review being cancelled.

   Past and present conduct of the visa holder towards the Department

6. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this a little weight in the applicant’s favour.

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

7. 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

8. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart. There is a risk that he becomes unlawful and that he may be detained or involuntarily removed. The Tribunal accepts that the applicant may be barred from re-entering Australia while holding a valid visa for three years.   The Tribunal accepts the applicant may be adversely affected in this regard. This is not atypical or unusual when visas are cancelled. Accordingly the Tribunal only gives this a little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

9. Although the applicant’s wife did not attend the hearing, the Tribunal finds it credible that the other applicants would be adversely affected arising by the mandatory legal consequences arising from this visa not being reinstated. The applicant has argued that the impact on his family will include not being able to find work as diplomas do not generally hold a value as formal qualifications in India. He fears his family will disown him if he returns to India without such a qualification, such as an Advanced Diploma of Marketing or a bachelor degree. The Tribunal does not accept this, as per the abovementioned findings, regarding hardship. During the hearing, the applicant stated that the expectations on him were for his wife to remain here with her family and that they do not want to be excluded for three years.

10. The Tribunal accepts there will be some hardship on the other applicants if the visa remains cancelled. Their migration options are considerably narrow and are likely to be excluded from Australia. It is also accepted that in returning to their country of nationality, the other applicants’ experience, such as schooling, may be disruptive and challenging, requiring some adjustments. The Tribunal accepts this consequential cancellation under s.140 of the Act arising from the first named applicant’s non-compliance. However, the applicant failed to demonstrate that the level of emotional and financial hardship on the second and third named applicants, whereby their visas will remain cancelled, will amount to severe or significant or even onerous hardship.  Accordingly the Tribunal finds this is relevant and it gives this factor some, but not a considerable amount, of favourable weight towards not cancelling the visa.

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

11. During the scheduled hearing, the applicant said there were no international obligations that would be breached as a result of this cancellation. The Tribunal has considered Australia’s obligations arising from the Convention on the Rights of the Child, the Refugees Convention and other international protocols to which Australia is a signatory. However there is no evidence before the Tribunal that this consideration, including the impact on the other applicants, is relevant and it gives this factor no weight.

    Other relevant considerations

12. The applicant submitted two (2) third party statements attesting to his good character and that he is law abiding, as well as a VicRoads summary of road offences. The Tribunal finds there is no evidence that the applicant is not a person of good character who has not upheld the conditions on his previous visas. There is no evidence of any criminal offences or any serious traffic violations against his name. The Tribunal gives this some weight towards the visa not being cancelled.

13. The applicant’s representative pressed upon the Tribunal that the applicant was provided with migration advice and assistance from a migration agent whose registration had been suspended in between August 2016 and March 2018 and whose registration is not current. The representative submitted a copy of a Tribunal decision dated 27 March 2017 (1614292). The representative argued that the case was relevant as the Tribunal made a finding that there was an unintended breach of the applicant’s visa condition, as claimed at this hearing. In that case, the Tribunal was satisfied that the applicant, following a relationship breakdown, had genuinely tried to make alternative payment plans to avoid breaching or avoid significantly breaching condition 8202. In this matter, the Tribunal does not accept the applicant’s claims and finds there is no substantive relevance of the supplied decision to this application for review. Neither does the Tribunal accept the other submitted Tribunal decisions were strongly relevant to the facts of this application for review.  

    Conclusion

14. Having found that the first named 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.

15. This decision has been difficult to reach because of the accepted adverse consequential impact of s.140 on the second and third named applicants.

16. However, the Tribunal has made a number of adverse credibility findings that the applicant is not a genuine student who will uphold the conditions on his student visa if reinstated; and that he will not face any significant or severe hardships if the visa remains cancelled; and that the claimed grounds for the applicant’s significant non-compliance and breach of condition 8202 leading to the cancellation of his visa had not been reliable. Even when taking into consideration the compelling grounds in favour of the other applicants, the grounds for the visa to remain cancelled significantly outweigh any other factors in the applicant’s favour.

17. Considering the circumstances as a whole, the Tribunal concludes that the first named applicant’s visa should be cancelled.

    DECISION

18. The Tribunal affirms the decision to cancel the first named applicant’s Class TU (Subclass 572) visa. The Tribunal has no jurisdiction with respect to the other applicants.

    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.