Singh (Migration)

[2018] AATA 5214

Singh (Migration) [2018] AATA 5214 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nirmal Singh

CASE NUMBER:  1703463

HOME AFFAIRS REFERENCE(S):           BCC2017/337786

MEMBER:Stephen Witts

DATE:11 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 11 December 2018 at 10:35am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – cancellation – not maintained enrolment in registered course – no attempt to inform the department or to rectify situation – length and significance of breach – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116(1)(b), 359AA
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 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 24 February 2017 on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh the grounds for not cancelling the 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 5 December 2018 to give evidence and present arguments.

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. According to the delegate’s decision record the applicant was not enrolled in a registered course of study between 12 September 2016 and 24 February 2017.

9. Adopting the procedure of the act 359AA the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if he wished for some additional time to consider this record prior to having a discussion with the Tribunal.

10. The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record.

11. According to the applicant’s PRISMS record the applicant has been enrolled in the following courses here in Australia:

    a)English for Academic Purposes to (EAP2) cancelled in June 2014

    b)Certificate III in Commercial Cookery finished in July 2015

    c)University Diploma in Business cancelled in October 2014

    d)Bachelor of Business cancelled in July 2015

    e)Certificate IV in Commercial Cookery finished in February 2016

    f)Diploma of Hospitality finished on 11 September 2016

12. The Tribunal noted to the applicant that the delegate has contended that the applicant was not enrolled from 12 September 2016; the day after the applicant’s Diploma of Hospitality was finished on 11 September 2016 until the date of the delegate’s decision, 24 February 2017.

13. The applicant stated that he was not enrolled in any course of study from 12 September 2016 until 24 February 2017. The applicant further acknowledged that he has not done any study since 12 September 2016.

14. 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

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

16. 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’.

17. The Tribunal has considered any submissions provided to the Department and also the evidence taken at hearing and presented to the Tribunal. It is noted by the Tribunal that the applicant did not provide a specific written submission prior to the hearing to the Tribunal.

18. On 24 February 2017 the delegate provided a Notification of Cancellation of Student (Temporary) (class TU Higher Education Sector (subclass 573) visa under section s116 (general power) of the Migration act to the applicant.

19. On 13 February 2017 the applicant supplied the following statement to the delegate:

    “Here I am submitting my reply in reference to the letter received by the department on 13 February 2017, which depressed me more and made my present critical situation worst in which I cooked the decision not to take admission in bachelor in November intake.

    I came to Australia in August 2014 on a student Visa under subclass 573 to pursue business, diploma leading to bachelor in Brisbane University with full of enthusiasm, as a wanted to rise in my career. Before coming to Australia I arranged my living with my friends who were in Brisbane. I landed at the airport and for a awaited therefore more than four hours but nobody turned to pick me up. I was shattered and depressed. I have already paid them money for my stay so didn’t have money and neither can call my family. I stayed on the road for two days till a generous taxi driver gave me space to leave and food to eat. He helped me how I can take an Australian phone number. I did not trust any friends anymore but my one of my childhood friend who was in Melbourne contacted me via whatsapp. I told him the entire story what happened to me. He booked me a flight to Melbourne and offered a hand of help. I reached Melbourne; I was still in depressed state. Meanwhile, I applied cancellation as per discussion with my agent. At the time of taking admission, I was only concerned with my career and my interest as I was very much disturbed at that time so I took admission in college I took and got admitted in hospitality. I started enjoying the course and atmosphere of the college. I felt myself the proud son of parents who was studying in world’s most reputed country Australia. I attended the college regularly and tried hard to understand the subjects as it was not related to my previous studies. For my living expenses, I got a kitchen hand job in a restaurant. Slowly gradually I picked up the fast movements of a kitchen and became a cook and then chef. Furthermore, I was able to clear certificate III. this was my happiest day. I called to my parents and told about my victory. Parents were very happy about the completion of my certificate. Nevertheless, I completed my certificate IV in commercial cookery, diploma and advanced diploma as well. I decided to visit my home country to see my family, but I was unable to go because of my health issues aroused, as my back got injured while while working in the kitchen. It took longer period to recover from the pain as I have to stand for longer hours. I wanted to go for my higher education but could not arrange funds as demoniterisation happened in India. My parents were unable to arrange the funds as it is affected significant disruption throughout the economy, threatening economic output. Due to demoniterisation there were fights and strikes in the country. So, I could not take admission in November intake.

    While I read the letter I was just shocked at the moment. I am requesting the department kindly consider my innocence and allow me to study here so that I can shine my future and can fulfil my father’s dream. I am a good and hard-working student; I will surely continue with my studies and will get the COE from college by paying their fees. My intentions for my studies and my career can’t subject to be doubted as I continued my study in a very well manner but circumstances lead me to take this decision. I will appreciate your decision, which you will make after knowing my situation very well. All supporting documents I am attaching as a proof of my nice consideration. As I am a very good student and my academic record in India was also good. I want to pursue my studies without any further delay. If you’re give me a few weeks I’ll send my degree COE. Thanks.”

    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

20. The applicant stated that he is from northern India near Delhi and he arrived in Australia on 16 April 2014 after having being granted a Student 572 visa. He stated that “I came to study my bachelor course”.

21. The applicant stated that he finished high school in 2007 and then went on to successfully complete a Bachelor of Arts in 2012 and a Diploma of IT in 2013.

22. The applicant stated that he has his parents, a brother and a sister, and his grandparents back home in his home country.

23. The applicant stated that he lives with a friend from his part of India and rents with him in Queens Rd Melbourne.

24. He stated that he has not worked since September 2016 and is relying on his family to provide money to him to fund his stay here in Australia.

25. The applicant stated that he has not returned home to his home country since his arrival here in April 2014 and has not travelled anywhere else outside Australia.

26. When asked by the Tribunal to outline whether he had a compelling need to remain in Australia, and to study here, the applicant stated that he did have a compelling need to remain in Australia because “I can’t find job back in India and I need one more chance to get a degree”.

27. When asked by the Tribunal why he could not return to his home country and continue his study for a bachelor level degree the applicant stated that “I can do that. Study is more good here. Study options are better. Here I can do more things. It’s hard to find business and hospitality courses back in India.”

28. When asked by the Tribunal to elaborate on this the applicant stated “it’s very hard to study back in India because you can’t find part-time jobs back home” and “it’s hard to find part-time jobs in a related field to your study” and “it’s hard to enrol courses in India”.

29. The Tribunal finds that the applicant has not put forward a compelling need to remain in Australia on student visas to study for his bachelor level business degree. The applicant acknowledged that he could actually have returned home, and could still return home, back to his home country and to his family and do whatever study he needed to do to proceed with his job and career future. The applicant also acknowledged that there were business courses back home in India but it was just that he believed the business courses were better here. The applicant did not elaborate as to why a study outcome in business here would actually be of compelling need to him for his future. It is also noted by the Tribunal that the applicant’s parents are apparently paying for his living costs here in Australia over more than a two-year period and the applicant has not been studying, and in his evidence, is not working either. On that basis, his parents would also be able to fund any study requirements should he have such requirements back in his home country.

    The extent of compliance with visa conditions

30. The applicant acknowledged that he had been in breach of his student visa conditions here in Australia but there is no evidence to indicate the applicant has breached other conditions.

31. The applicant also acknowledged that he did not contact the Department or make any effort to inform the department that he was not enrolled and did not study during a significant part of his student visa period.

32. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

33. The Tribunal had a discussion with the applicant regarding the degree of hardship that may be caused to the applicant.

34. The applicant responded by saying “I’m waiting for my last chance to study. My parents are paying my rent and bills. They want me to get a degree here.”

35. When invited by the Tribunal to put any other evidence in regard to the degree of hardship that may be caused, particularly in light of the applicant’s submission to the delegate on 13 February 2017, the applicant referred to difficult economic circumstances in India during the period of “demonetisation” which made it difficult at the time for his parents to fund his study here. The applicant did not put any other evidence to the Tribunal in regard to this and the Tribunal does not lend great weight to this as evidence of a degree of hardship as the applicant has now been here in Australia for a further two years relying on his parent’s financial assistance, which has been forthcoming.

36. The applicant provided a medical certificate to the delegate (delegates file folio 10) dated 10 October 2016 where it is stated that the applicant had presented to a chiropractic clinic with back pain. The applicant did not provide any other specific evidence at hearing as to the effect of this particular injury at this particular time on his study. The Tribunal does not lend weight to this as evidence that the applicant was unable to study at this time.

37. The applicant also stated in his statement to the delegate (delegates file folio 9) that he became depressed for a period of time. The applicant did not provide any other evidence at the hearing to this effect and the Tribunal does not lend weight to this as evidence  that the applicant was unable to study at this time.

38. The Tribunal recognises that the applicant did have a problem here in Australia with his study caused by a family financial problem for a period of time. The Tribunal recognises that this may have caused the applicant some difficulties at this time. However, the Tribunal finds that these considerations do not outweigh the applicant’s poor study record here in Australia and the significant breach of not being enrolled during this period in favour of not cancelling the applicant’s visa.

    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

39. The applicant acknowledged that his visa was cancelled due to his lack of enrolment to study during that stated period of time. However the applicant argued that he was unable to study at this time because of temporary financial hardship.

40. Given the circumstances as a whole, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the considerable period of time in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant in not cancelling the visa.

    Past and present behaviour of the visa holder towards the department

41. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach. It is also noted that the applicant did not make any attempt to contact the department or inform the Department of his visa status prior to the visa cancellation.

    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

42. It is unlikely that the visa applicant will be detained but rather provided with a time-limited period in which you can leave the country or apply for review of the decision

    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

43. There is nothing before the Tribunal to indicate any international obligations to consider.

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

44. No such considerations are relevant in this case.

    Any other relevant matters.

45. The applicant gave no indication when asked to explain and detailed the Tribunal any other concerns he may have as to his general welfare should the visa be cancelled. The Tribunal appreciates an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from studying at high level or gaining employment back in his home country in India particularly given his statements that his family are able to support him financially in his study, and the applicant did not give any other evidence to indicate a detrimental effect if the visa was cancelled. The population of India is significant and there are many people in full-time employment without a specific education from Australia.

46. The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions of his visa, in his evidence he stated that he made no attempt to inform the department or to rectify the situation and the Tribunal places significant weight on the length of the breach. The fact that the applicant was having problems paying his enrolment fee at a particular point of time does not adequately explain his study history here in Australia. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanation.

47. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach is significant in the context of a student study period and the fact that he would be well aware of the expectations placed on him. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

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

    DECISION

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

    Stephen Witts
    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.