Singh (Migration)

[2018] AATA 5649

Singh (Migration) [2018] AATA 5649 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovepreet Singh

CASE NUMBER:  1826348

HOME AFFAIRS REFERENCE(S):           BCC2018/2327129

MEMBER:Ann Duffield

DATE:4 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 04 December 2018 at 12:52pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – enrolment lapsed after illness – poor attendance record – applicant unaware of enrolment had been cancellation – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 116, 189
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 September 2018 made by a delegate of the Minister for Home Affairs 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 was in breach of condition 8202 of his student visa which required that he be enrolled in a registered course. The delegate found that the applicant had not been enrolled in a registered course of study since 2 November 2017.  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 4 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.

   BACKGROUND

5. The applicant is a citizen of India born on 10 July 1995 (23 years old). He was first granted a subclass 573 visa on 5 August 2015. The purpose for which the visa was granted ended on 2 November 2017 which is the date the applicant’s enrolment in a course ceased. He did not subsequently re-enrol in a further course.

6. The applicant travelled offshore for a short period of time and re-entered Australia on 5 March 2018. Since re-entering Australia he has not maintained an enrolment in any other course. The applicant’s COE Bachelor of Business course was cancelled because of “non-commencement of studies”. A subsequent course he enrolled in on 20 June 2018 was cancelled due to non-payment of fees.

7. The applicant claims he tried to re-enrol in a diploma course at Martin College after he failed his first course but they refused. He claims he started searching for another provider and came across Spencer College. He claims he started his course at Spencer College however he was unable to continue his studies because of ongoing health issues, in particular, his kidney stones.

8. The applicant has provided a COE for an English course at Holmes College beginning 1 October 2018 and ending 2 November 2018.  He also provided a subsequent COE for a Bachelor of Business Degree at Holmes Institute with a course start date of 12 November 2018 and an end date of 31 July 2021. He has paid $250 deposit on this course.

9. The applicant claims he went to India in January 2018 for surgery on his kidney stones and appendicitis. He returned in March 2018 but was still recovering. He claims he was still going to college and attending classes and was never informed that his enrolment had been cancelled. He claims he had no knowledge that he was in breach of his visa conditions until he received the NOICC.

10. The department wrote to the applicant on 15 August 2018 informing him of their intention to cancel his visa. The applicant responded on 21 August 2018

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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?

12. 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).

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

14. The Tribunal found the applicant’s evidence during the scheduled hearing to be evasive, lacking in relevant detail and unpersuasive. The Tribunal does not accept the applicant’s claims for the following reasons.

15. At the hearing the applicant provided the Tribunal with a letter dated 28 November 2018 allegedly from his GP stating that the applicant “was sick early this year after had an operation for appendicitis and was unfit to continue his usual occupation.”

16. The Tribunal asked the applicant if this doctor had treated him in January and he said that he had. Asked if there was any contemporaneous evidence of that consultation with his doctor earlier in the year he said that there was not. The Tribunal said that it would not put a great deal of weight on a letter written by a doctor, who may or may not have treated him earlier in the year, more than 10 months after the fact.

17. The Tribunal asked the applicant why he returned to Australia from India if he was still unwell and put to him that it may have been better for him to fully recover before returning to Australia. He said that he was well at the time and had intended to resume his studies. Asked why he didn’t enrol in a course the applicant said that he was in pain and depressed and had spoken to the college about that.

18. The Tribunal put to the applicant the delegate’s finding that he had not been registered in a course since November 2017 and asked for his comments. The Tribunal put to the applicant that if it found that he had not been registered the Tribunal would come to the view that grounds for cancellation did indeed exist. The applicant said that he did not know that he wasn’t enrolled because he continued to go to class and pay the fees. The Tribunal put to the applicant that one of the reasons that his enrolment was cancelled was because he had failed to pay the fee and failed to attend the course. The Tribunal put to the applicant that it found it difficult to understand how he could have formed and held a belief that he was registered in a course when he did not attend and did not pay the fee. The applicant told the Tribunal that he was in contact with the college during that time (unspecified) and was still going to class.

19. The Tribunal asked the applicant if he had any evidence that he was enrolled in the course, or that he had paid the fees or that he had been attending classes. The applicant said that he did not and had only spoken to the college on the phone. He said that they didn’t tell him that his enrolment had been cancelled. The Tribunal put to the applicant that it was forming a view that his oral evidence was not truthful and that if it formed a view that his evidence was not truthful it would be a reason why the decision would be affirmed. The applicant said that he had continued to go to class but had no evidence.

20. There is no evidence before the Tribunal to support the applicant’s claims that he had reason to believe that he was registered in a course, or that he attended classes during the relevant period. There is no evidence that the applicant was enrolled in a relevant course between November 2017 and September 2018 when the delegate made the decision to cancel the applicant’s visa.

21. 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

22. 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’

23. The Tribunal has considered the purpose of the applicant’s travel and stay in Australia, and considered whether the visa holder has a compelling need to travel to or remain in Australia.

24. The applicant claims that he enrolled in a course at Holmes College in October 2018 for one month and completed a general English course. He claims that he has subsequently enrolled in a bachelor degree at Holmes Institute. Asked if he had paid the relevant fees he said that he had made a partial payment.  Asked if he had any evidence to support his claim that he was actually attending college the applicant said that he did not.

25. The Tribunal put to the applicant that it was forming a view that he had no intention to complete the payment or attend the course but that his intention was merely to stay in Australia to work. The Tribunal put to the applicant that The applicant strongly denied this saying he was committed to continue his studies because his family were relying upon him. Asked if he had provided them with any financial support in the past several years he said that he had not but they had an expectation that he would provide for them in the future.

26. The Tribunal does not accept that the applicant will continue to pursue his studies in Australia or that he has an intention to continue the course in which he is presently enrolled. The Tribunal put to the applicant that he had a past history of enrolling in courses and not paying the fees or not attending courses. The Tribunal put to the applicant that it was forming a view that he would continue with his past behaviour and not continue with his studies. The applicant strongly denied this.

27. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia.

28. The Tribunal has considered the applicant’s compliance with his visa conditions. The Tribunal asked the applicant if he had informed the immigration department that he was unable to continue his studies because he was unwell and he said that he had not contacted the department. Asked if he was aware of his visa conditions the applicant claimed that he was aware of the conditions on his visa. He continued to claim, however, that he was unaware that his enrolment had been cancelled. The Tribunal finds this difficult to believe. The Tribunal does not accept that the college in question would permit the applicant to attend courses for which he had not paid and in which he was not enrolled. The Tribunal does not accept that the applicant had formed a genuine belief that he was still enrolled in a course, but was fully aware that he was in breach of one of his visa conditions. The Tribunal is not satisfied that the applicant complied with one of his visa conditions in the past or that he would do so in the future.

29. The Tribunal has considered whether the applicant or his family or anyone else would suffer hardship such that the Tribunal should consider not cancelling his visa. The applicant told the Tribunal that he has not dependents in Australia or India. He said that he does not provide financial support to his family and works part time as a taxi driver earning around $2000 a month. Asked if his employer would be placed in a difficult situation if he were required to leave the applicant said that he would not.

30. The applicant has provided a letter of offer of employment at a firm in India which depends upon him completing his course. The Tribunal put to the applicant that this letter presupposes he completed his course in January 2019 and that it was dated July 2017. The applicant told the Tribunal that this employer had agreed to extend the offer until he completed his course in 2020. Asked if he had any evidence to support that claim, such as another letter from this employer, the applicant said he did not.

31. The Tribunal does not consider that a degree of hardship would flow to the applicant or his family or anyone else such that it would consider not cancelling the applicant’s visa.

32. The Tribunal has no evidence before it that the cancellation of the applicant’s visa would result in any consequential cancellations or that such cancellation would result in the breach of any international obligations.

33. The Tribunal has considered the circumstances in which the cancellation arose and notes that the applicant claims that he was ill with kidney stones and appendicitis. The Tribunal accepts that the applicant had these conditions and that he underwent surgery in India as a result. The Tribunal does not accept the applicant’s unsubstantiated claims that continued pain post-surgery meant that he was unable to complete his studies.

34. Apart from the fact that claiming illness as a result of post-surgery complications as a reason for non-attendance contradicts the applicant’s claims that he did in fact attend class, the applicant has provided no evidence to support this claim, apart from a letter dated 28 November 2018 which the Tribunal, for the reasons stated above, does not accept.

35. The applicant has also claimed that the college kept promising that they would re-enrol him whilst he was allegedly attending classes during the year. Again, however, he has provided no evidence to support this claim which, in any case, the Tribunal has found to be implausible.

36. The Tribunal is not satisfied that the circumstances in which the cancellation arose were the result of matters beyond the applicant’s control.

37. The Tribunal has considered the legal consequences of the cancellation of the applicant’s visa, including that he will have limited options to apply for further visas in Australia and may, if he does not regularise his visa status, be liable for detention or deportation. Since these matters are the intended consequences of cancellation, the Tribunal does not consider that they weigh in favour or not cancelling the applicant’s visa.

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 Class TU visa.

    Ann Duffield
    Senior 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.