Singh (Migration)

[2019] AATA 1618

Singh (Migration) [2019] AATA 1618 (14 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramandeep Singh

CASE NUMBER:  1704097

HOME AFFAIRS REFERENCE(S):           BCC2016/4297485

MEMBER:Joseph Lindsay

DATE:14 January 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 14 January 2019 at 1:47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Master of Communications – ceased enrolment in Higher Education Sector course – did not complete any higher education courses in four and a half years – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140
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 27 February 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 failed to remain in a registered course of study and breached condition 8202(2)(a) of 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.

3. The applicant appeared before the Tribunal on 20 December 2018 to give evidence and present arguments. The applicant was not represented by a registered migration agent at the Tribunal hearing.

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. 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?

6. 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).

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

8. In the hearing, the applicant made admissions that he had not maintained his enrolment in a registered course of study and that he had breached condition 8202.

9. The applicant’s evidence is consistent with the information in the applicant’s Provider Registration and International Student Management System (PRISMS) record, which indicates that the applicant has not been enrolled in a registered course of study since 7 April 2016.

10. 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)(a).

    Consideration of the discretion to cancel the visa

11. 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 circumstances in which the ground for cancellation arose

12. In regard to his enrolment history, the applicant indicated that the last course he enrolled in was a Diploma of Agriculture, and before that he had enrolled in an English course and in a Master of Communications.

13. The Tribunal discussed the applicant’s PRISMS record with him. The Tribunal explained to the applicant that what he had said was consistent with his PRISMS record and that there was no information in the applicant’s PRISMS record that was adverse to him.

14. The applicant indicated he was aware that he had come to Australia on a 573 Higher Education Sector visa, but that he had not completed any Higher Education Sector courses since he arrived in Australia in 2014.

15. The applicant indicated that the reason why he ceased his enrolment in the Diploma of Agriculture on 7 April 2016 was that he received bad advice from his agent. The applicant indicated that his agent actually advised him that he could not do a higher education course. However, the applicant had no documentary evidence in relation to this advice from his agent.

16. The Tribunal put to the applicant that the visa holder is responsible for understanding and abiding by all the conditions of their visa. In response, the applicant indicated he agreed with the Tribunal that the visa holder is responsible for knowing and abiding by all the conditions of their visa.

17. The Tribunal put to the applicant that because he had first enrolled in a Master of Communications, a Higher Education Sector course, he reasonably knew that he had to do a Higher Education Sector course as part of his 573 visa. The applicant indicated that he agreed with the Tribunal. The Tribunal put to the applicant that he had then enrolled in a Diploma of Agriculture and that is not a Higher Education Sector course. The applicant indicated that he agreed with the Tribunal. The Tribunal put to the applicant that he had indicated that the whole reason he changed courses is that he got bad advice from his agent, to which the applicant indicated that he agreed with the Tribunal.

18. The Tribunal indicated to the applicant that the Tribunal may place low weight on his submission because, despite any advice from his agent, he reasonably knew that he had to do a Higher Education Sector course as part of his 573 visa and yet ceased his enrolment in the Higher Education Sector course and enrolled in a course that was not a Higher Education Sector course. The applicant indicated that he agreed with the Tribunal.

19. The Tribunal asked the applicant if he approached the Department with his concerns at the time he ceased his enrolment, and he indicated he did but that he had no documentary evidence about this.

20. In considering the above, the Tribunal finds that the applicant reasonably knew that he had to do a Higher Education Sector course as part of his 573 visa because he had first enrolled in a Master of Communications, a Higher Education Sector course. The Tribunal finds that the applicant reasonably knew that the Diploma of Agriculture was not a Higher Education Sector course. The Tribunal places low weight on the applicant’s submission that the reason why he ceased his enrolment was due to bad advice from his agent.

21. Accordingly, the Tribunal does not accept that the applicant’s circumstances in which the ground for cancellation occurred were beyond his control.

    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

22. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

23. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

24. In response to this issue at the hearing, the applicant indicated that if his visa was cancelled he would suffer some hardship, where he would find it hard to get a good job on his return to India.

25. The Tribunal accepts that the applicant may experience some hardship as he has described. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

26. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

27. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa. The Tribunal places low weight on this information in the applicant’s favour.

    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

28. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

29. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to India.

30. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

31. The Tribunal places low weight on this information in the applicant’s favour.

    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

32. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

33. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise.

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

    Conclusion

35. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 10 June 2014, now some four and a half years ago, the applicant has not completed any higher education courses.

36. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 7 April 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

37. The Tribunal finds that the circumstances that led the applicant to not complete any higher education courses, as detailed above, are not exceptional circumstances. 

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

    DECISION

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

    Joseph Lindsay
    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.