SINGH (Migration)

[2018] AATA 5216

SINGH (Migration) [2018] AATA 5216 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUKHVIR SINGH

CASE NUMBER:  1707141

DIBP REFERENCE(S):  BCC2017/256896

MEMBER:Stephen Conwell

DATE:7 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 December 2018 at 11:58am

CATCHWORDS
MIGRATION – cancellation – Subclass 573 Higher Education Sector visa – not a genuine student – not successfully completed a course of study since 2015 – unsatisfactory academic progress – family’s financial issues – no compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 119, 140
Migration Regulations 1994, Schedule 2, r 2.43(1C) and (1D)

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 2017 made by a delegate of the Minister for Immigration and Border Protection (‘the Department’) to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The applicant lodged the Department delegate’s decision with the Tribunal at the time of his application.

2. The delegate cancelled the visa under s.1161)(fa)(i) of the Act on the basis that the applicant was found not to be a genuine student. 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 6 December 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.1161)(fa)(i) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

7. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

8. According to the delegate’s decision the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 22 May 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 February 2017, the applicant was advised that information before the Department delegate indicated he is not, or is likely not, to be a genuine student.

9. The decision record states that on 14 February 2017 the applicant’s representative (at the time) wrote to the delegate in response to the Department's NOICC in which he did not dispute the grounds for cancellation. The decision record states that the grounds for cancellation were under s.116(1)(fa)(i) because it appeared that the applicant's primary purpose for holding a student visa was not for the purpose of study and he was not, or likely not to be, a genuine student.

10. The delegate noted the applicant had initially applied to study in Australia for a Certificate IV in Accounting leading to a Diploma and Bachelor of Accounting (from 7 July 2014 - 30 June 2017). Based upon information from the Provider Registration and International Student Management System (PRISMS), the delegate found that the applicant:

    ·     successfully completed the Certificate IV and Diploma of Accounting courses as planned;

    ·     commenced the Bachelor degree of Accounting at La Trobe University on 6 July 2015. However, he failed three out of four subjects in semester 2, 2015;

    ·     had failed all his subjects in semester 2, 2016.

11. The applicant responded to the NOICC letter and his evidence and submissions are discussed below. However, after considering the evidence, the Department delegate noted that the applicant:

    ·     had not successfully completed a course of study since 30 June 2015;

    ·     whilst enrolled in his bachelor studies at La Trobe University, demonstrated unsatisfactory course progress, failing all units of the course;

    ·     was not enrolled to study for the duration of Semester 1, 2016. In semester 2, 2016 he failed all his subjects;

    ·     was issued an Unsatisfactory Academic Progress Outcome Letter on 3 February 2017 by his education provider and subsequently excluded from remaining enrolled in the course.  He did not appeal this decision within the specified timeframe.

    ·     obtained new enrolment in the Bachelor of Business course at the Australian School of Management, only after receiving the NOICC on 14 February 2017.

    ·     failed to demonstrate academic progress to the extent that would reasonably be expected of a genuine student over a significant period of time.

    ·     had not travelled outside Australia since arriving on 11 June 2014.

12. The delegate observes that Student visas are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. The visa carries an expectation that the student would give priority to their ongoing enrolment and participation in a CRICOS registered course of study and this was the “principal basis for the grant of his Student visa and that it was expected of any genuine student.”

13. The delegate then note that the applicant’s lack of academic progress over a substantial period of time while choosing to remain in Australia on a Student visa was an indication he was not a genuine student.

14. When discussed at hearing, the applicant, amongst other things, provided the following in his oral evidence:

    ·     he did not dispute that there were grounds for cancellation of his visa but claimed there are compelling and compassionate circumstances which gave rise to the circumstances of the cancellation.

    ·     he agreed that he had not been enrolled in semester 1, 2016 as he was unable to pay the course fees.

    ·     he is the eldest son and has a younger brother who is at home in India with his parents. His father worked as a plasterer in Saudi Arabia for a time and he was able to fund the applicant’s studies in Australia. However the applicant’s father had to return to their home country of India when his company closed down.

    ·     Whilst back in India the applicant’s father experienced heart problems and underwent surgery.  This led to financial constraints upon the family; in particular, the applicant’s study fees in Australia could not be met. This was the reason for the applicant not being enrolled in study in semester 1, 2016.

    ·     he did not dispute the delegate’s findings that –

    o   he failed three quarters of his subjects in semester 2, 2015;

    o   he was not enrolled in study in semester 1, 2016;

    o   he failed all of his study units in semester 2, 2016.

    ·     he claimed to have been anxious and depressed due to his father’s ill-health however he did not contact either his education provider or the Department with regard to his studies or his visa status.

    ·     he has worked as a delivery man since late 2015 on weekends, on an “as needed basis”. He was paid in cash. He hasn’t worked since his visa was cancelled.

15. Therefore, and as conceded at hearing, the applicant had failed to complete any course of study in Australia since 30 June 2015. He was also not enrolled for semester 1, 2016 due to non-payment of fees.

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.1161)(fa)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

17. 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’.

    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

18. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  The purpose of the Higher Education visa is to enable the visa holder to undertake study at the higher education level.  The applicant confirmed at hearing that the purpose of his travel to and stay in Australia was to study;

19. At hearing the applicant confirmed that his intention in travelling to and residing in Australia was for the purposes of study. However, he agreed that he had failed to complete any course of study in Australia since 30 June 2015. He was also not enrolled for semester 1, 2016 due to non-payment of fees.

20. Based on all the findings herein, the Tribunal is not satisfied the applicant’s present purpose for residing in Australia is to study.

    The extent of compliance with visa conditions

21. The Tribunal has considered the extent of compliance with visa conditions. The Tribunal believes the failure to maintain enrolment in an appropriate course of study for six months is substantial. The Tribunal finds that the applicant has also breached condition 8516 of his visa.  The Tribunal considers the breach to be significant given that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study at the level for which his visa was granted. Although the applicant could not confirm that he had been working within the constraints of his visa conditions, there is no evidence that the applicant has breached any other visa conditions. Tribunal therefore considers this factor to weigh in favour of visa cancellation.

    Circumstances in which ground of cancellation arose

22. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

23. In his response to the NOICC letter the applicant said that his father worked as a plasterer in Saudi Arabia for a time and he was able to fund the applicant’s studies in Australia. However the applicant’s father had to return to their home country of India possibly because he had lost his job or because his company closed down. Whilst back in India the applicant’s father experienced heart problems and underwent surgery.  This led to financial constraints upon the family; in particular, the applicant’s study fees in Australia could not be met. This was the reason for the applicant not being enrolled in study in semester 1, 2016.

24. The applicant also submitted evidence to the Department of his stress and anxiety during 2016 in the form of a medical letter dated 17 February 2017 from Dr Ansari of St. Albans Complete Healthcare[1].  The letter states that the applicant was suffering severe anxiety stress disorder due to financial problems arising from his father losing his job overseas. This had been compounded with bouts of homesickness and insomnia.  The Tribunal accepts that the applicant would have experienced stress and anxiety arising from financial difficulties through his father losing his job, however he admits that he made no effort to discuss his financial circumstances either with his education provider or with the Department.

    [1] DIBP – folio 17.

25. The applicant’s non-enrolment in the study for which his visa was granted for semester 1, 2016, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

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

26. The Tribunal has considered the degree of hardship that may be caused.  The applicant said he would feel shame and disappointment in returning to India without any qualification and he would find it difficult to justify the four years he has spent in Australia.  He said his parents would be disappointed in him as they have invested a substantial sum of money in his overseas education.

27. The Tribunal acknowledges that the applicant’s parents would suffer a financial cost as well as disappointment at his lack of success, should his visa be cancelled. The Tribunal finds this weighs in favour of the applicant.

    Past and present conduct of the visa holder towards the department

28. The Tribunal has considered the past and present conduct of the visa holder towards the department.  Nothing adverse is known about the applicant’s past and present conduct towards the Department and he responded promptly on being issued with a NOICC .  The Tribunal this gives some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

29. The Tribunal is not aware of there being are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    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

30. The Tribunal is mindful that the delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act, if he does not voluntarily depart Australia.  Further, the applicant will have limited options to apply for further visas in Australia.  The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight.

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

31. There is nothing to suggest, and the applicant does not claim, that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

32. Before closing the hearing the Tribunal asked the applicant if there is anything else he wished to be considered and he said he has nothing further to add.

33. The Tribunal finds that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations. The Tribunal finds that there is nothing adverse known about the applicant’s past and present conduct towards the Department; it is prepared to accept that some hardship and financial loss may be caused by the cancellation.  

34. The Tribunal recognises that the cancellation of the visa is a significant matter.  However on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    Member