Singh (Migration)

[2018] AATA 5462

Singh (Migration) [2018] AATA 5462 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh

CASE NUMBER:  1620594

HOME AFFAIRS REFERENCE(S):           BCC2016/2116876

MEMBER:David McCulloch

DATE:22 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 22 November 2018 at 8:32am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – member of family unit – no longer in a relationship with primary visa holder – consideration of discretion – circumstances of the relationship breakdown – intention to study – evidence of course progress – poor attendance – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(a) on the grounds that the visa had been granted on the basis that the applicant was a member of Ms Kulwinder Singh/Kaur’s (the primary visa holder) family unit and that she was no longer a member of the family unit and therefore the circumstance which permitted the grant of the visa no longer exists.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 19 November 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

6. 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

7. 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.116(1)(a). 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?

8. A visa may be cancelled under s.116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

9. In the submission by the applicant’s migration agent to the Department there is reference to marital difficulties from the time the applicant arrived in Australia in July 2015. The submission indicates that on 17 May 2016 the applicant was thrown out of the marital home by the primary visa holder. That submission indicates that the applicant is aware that the ground of cancellation exists and he accepts that he has not been living with the primary visa holder since May 2016.

10. In the Tribunal hearing the applicant confirmed that he is no longer in a relationship with the primary visa holder.

11. Given that evidence, the Tribunal is not satisfied that the applicant is, for the purpose of r.1.12 of the Migration Regulations 1994 (the Regulations), the spouse or the de facto partner of the primary visa holder on the basis that the relationship between them is not continuing and they do not live together (see definitions of ‘spouse’ and ‘de facto partner’ in ss.5F and 5BC of the Act).

12. Accordingly, the applicant no longer meets the secondary criteria for the grant of the visa as being a member of the same family unit as the primary visa holder. Therefore, the Tribunal is satisfied that the decision to grant the visa to the applicant was based wholly or partly on the applicant being a member of the same family unit as the primary visa holder, that that particular fact or circumstance is no longer the case, and the ground for cancellation in s.116(1)(a) is made out.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(a) 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

14. 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). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 of the Act (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

15. The Tribunal notes that the visa subject to cancellation expired on 14 June 2017.

16. A submission was made by the applicant’s migration agent to the Department dated 16 November 2016. A similar submission was made to the Tribunal. The submissions refer to significant marital problems between the applicant and the primary visa holder both before and after the applicant left the marital home in Australia. Also provided is a statement by the applicant and related documents including police records from India and communications between the applicant and the primary visa holder. It is claimed that while living together the primary visa holder attacked the applicant with a knife. It is apparent from the submissions that the primary visa holder obtained an Apprehended Violence Order against the applicant. The primary visa holder’s family in India have complained to police in India about the applicant and his family. This is in relation to an allegation that the applicant’s family is demanding a dowry from the family of the primary visa holder. It is claimed that police in India investigated the matter but found no evidence against the applicant and his family. A complaint of assault against the applicant has been made to police by the primary visa holder. The applicant moved to Sydney from the Gold Coast and was questioned by Blacktown police in relation to this allegation. It is claimed that police did not find any evidence to charge the applicant.

17. It is submitted that the circumstances of separation were created by the primary visa holder so that she could live with or marry another man. None of the circumstances relating to separation were created by the applicant. The applicant is the victim. He is not aggressive and has cooperated with authorities. He does not have any criminal record in Australia or India and has always followed immigration rules.

18. The submissions additionally indicate that the applicant is enrolled in a course and would complete it in 2019. Submissions indicate that he has the intention to complete a cookery course and return to India and work in a hotel. The applicant has obtained a Confirmation of Enrolment in relation to his cookery course. The applicant has applied for a Student visa. This application was made through a migration agent. However, despite following up the progress of this application he has had no response from the migration agent.

19. The applicant will face hardship if his visa is immediately cancelled. The applicant appeals to the Department that he should be given a chance to continue his study in Australia on compassionate grounds. The applicant promises that after completing his course he will return to India and join a hotel in India.

20. The applicant provided to the Department a Confirmation of Enrolment in an Advanced Diploma of Hospitality Management commencing on 10 April 2017 and due to end on 7 April 2019. The applicant also provided a Confirmation of Enrolment in a General English course commencing on 21 November 2016 and ending on 5 March 2017.

21. The applicant provided a supporting statement from a director of a hotel and restaurant in India indicating that they will employ the applicant as a manager after the completion of his studies in Australia.

22. The Tribunal considered relevant discretionary factors.

23. The Tribunal considered the circumstances in which the ground for cancellation arose. Under Australian family law, relationship breakdowns are considered in a neutral manner without fault being apportioned. In that context, the Tribunal does not consider that it is appropriate or relevant to enquire into the circumstances of the relationship breakdown. The Tribunal does treat a breach based on an altered dependency relationship in a different category to breaches where the applicant is more clearly responsible, such as a failure to be enrolled in a registered course or a failure to be a genuine student.

24. The Tribunal considers that the applicant’s progress in his English and hospitality courses is significantly relevant to the exercise of its discretion. To that end, the Tribunal wrote to the applicant asking him to provide evidence of course progress, including transcripts and certificates of attainment in relation to the General English course that he commenced on 21 November 2016 and the Advanced Diploma of Hospitality Management that he commenced on 10 April 2017 and is currently studying.

25. In response, the applicant provided evidence of his enrolment in these courses but none of the information requested as to progress.

26. The Tribunal asked the applicant in the hearing about his course progress in the Advanced Diploma of Hospitality Management. The applicant indicated that he had been attending all necessary classes up until three or four months ago. The applicant indicated that he had passed three of the four units comprising the course. The applicant confirmed that he had completed three quarters of the course requirements. The applicant indicated that he had not been attending the course for the last three or four months because he was suffering from depression and stress as a result of court cases lodged in India against his family, which he was having to deal with. The Tribunal asked the applicant if he sought a deferral of his course from the education provider on compassionate or medical grounds. The applicant indicated that he spoke to the education provider who said he needed to finish the course.

27. The applicant indicated in the hearing that he intends to return to the course in the following week because his divorce has now been finalised in India.

28. In advance of the hearing, the Tribunal wrote to Apex Institute of Education, the provider of the Advanced Diploma of Hospitality Management asking it to provide evidence of the applicant’s progress and attendance record in this course, including interim transcripts and attendance records.

29. In response, a Certificate of Attendance dated 16 October 2018 was provided indicating that the applicant’s attendance in the Advanced Diploma of Hospitality Management starting on 10 April 2017 and due to finish on 7 April 2019 was 7.13 percent. Also provided was an Interim Record of Results in this course pertaining to the applicant dated 16 October 2018 indicating that the applicant was deemed as Not Yet Competent in all 27 of 27 listed courses.

30. In the hearing, the Tribunal put to the applicant this information of attendance and course progress, pursuant to the procedural requirements of s.359AA of the Act. The Tribunal indicated that information was relevant because the applicant had extremely poor attendance in the course and had not been deemed competent in any of the 27 units, even though two thirds of the course had concluded. The Tribunal noted this information is relevant because it is inconsistent with the prior indication by the applicant of his desire to stay in Australia to enable him to complete his hospitality course. It did not appear that the applicant was putting any significant effort into this course based on almost complete lack of attendance and the passing of not one subject, notwithstanding 18 months of study. The applicant had also given inconsistent evidence in the Tribunal hearing that he had passed three quarters of the contents of the course and had fully attended classes up until three months or four ago. The latter, even taking account non-attendance for the prior three or four months, would result in an attendance record of much more than 7.13 percent if all classes prior to the applicant stopping attending were taken into account. The consequence of relying on this information could be for the Tribunal to consider as a discretionary matter significantly unfavourable to the applicant his lack of any meaningful progress in this course.

31. In response the applicant referred to fees not being paid. The Tribunal noted to the applicant that this fact would not explain the evidence regarding his attendance record and courses passed.  The applicant referred to not studying because he did not hold a Student visa. However, the applicant maintained that be had been studying the course up until three or four months ago, without holding a Student visa. The Tribunal noted that the applicant was enrolled in the course and did not need a Student visa to allow him to study. The applicant did not meaningfully address this point.

32. The Tribunal is not satisfied that the applicant has been credible or truthful in his claims of making any sort of meaningful progress in the Advanced Diploma of Hospitality Management. The Tribunal gives significant weight to the information provided by the education provider and accepts this information relating to the applicant’s lack of attendance and course progress.

33. The Tribunal is not satisfied that the applicant has had, or continues to have, a genuine desire to undertake this course given the minimal course attendance and not one of 27 units passed. The Tribunal is not satisfied that the applicant plans to recommence the course in the near future. The Tribunal is not satisfied with the truth of claims that court issues relating to his family in India are a cause of his failure to study for the last three or four months. The applicant’s credibility is significantly undermined by him clearly not providing truthful information to the Tribunal concerning progress in his current course.

34. The applicant indicated in the hearing that the key basis on which the visa should be reinstated is his desire to finish his Advanced Diploma of Hospitality Management and then study a Bachelor course. The Tribunal is not satisfied with the truth of these claims or his claims as to past progress and attendance in the Advanced Diploma of Hospitality Management. Such matters are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

35. The Tribunal acknowledges that a hardship to the applicant, if the visa remains cancelled, is his inability to apply for a range of migration visas onshore. The Tribunal acknowledges that if the visa remains cancelled the applicant could be an unlawful noncitizen. However, the applicant would be in a position to continue to be eligible to hold a Bridging visa to make his status lawful.

36. The applicant indicated in the hearing that he eventually intends to return to India and utilise his hospitality course. However, he indicates that he has some concerns in relation to his in-laws in India. Given the applicant’s intention to return to India, the Tribunal is not satisfied that the applicant fears such harm as would invoke non-refoulement obligations.

37. The applicant indicated that there are no children in Australia whose interests are impacted by the cancellation. There is no evidence that anyone attached to the applicant’s visa would be adversely affected by the cancellation.

38. The Tribunal considers that these are the key relevant factors in the exercise of its discretion.

39. In summary, the Tribunal treats as neutral in the exercise of its discretion the fact of a relationship breakup between the applicant and the primary visa holder. The Tribunal would have considered favourable to the applicant in the exercise of its discretion any meaningful progress in his Advanced Diploma of Hospitality Management. As it is, the applicant has not been truthful to the Tribunal in indicating his attendance or progress in this course. The Tribunal is not satisfied that the applicant has meaningfully undertaken this course. The Tribunal is not satisfied with the truth of claims that court issues relating to his family in India are a cause of his failure to study for the last three or four months. The Tribunal accepts some hardship to the applicant if the visa remains cancelled.

40. Weighing up relevant discretionary matters both favourable and unfavourable to the applicant, the Tribunal is of the view that it should exercise its discretion to cancel the visa.

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

    DECISION

42. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    David McCulloch
    Member