Singh (Migration)

[2018] AATA 5507

Singh (Migration) [2018] AATA 5507 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

CASE NUMBER:  1824632

HOME AFFAIRS REFERENCE(S):           BCC2018/1619650

MEMBER:Ann Duffield

DATE:21 November 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 21 November 2018 at 1:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – parents stopped paying tuition fees – did not explore options to continue study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 14 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.1161)(b) on the basis that the applicant has not complied with condition 8202(2)(a) of his visa. This condition requires the applicant to be enrolled in a fulltime registered course. 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 21 November 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 provided the Tribunal with a copy of the delegate’s decision along with his application for review.

6.    The applicant arrived in Australia on a student visa in July 2013. He was granted subsequent student visas and has been on a bridging visa in relation to this application since August 2018.

7.    The applicant was notified on 6 August 2018 that the delegate was considering cancelling his visa because he had not been enrolled in a relevant course since 7 November 2017. In response to the NOICC the applicant enrolled in a course on 13 August 2018. The delegate found, as the applicant had not been enrolled in a relevant course for over 9 months that he was in breach of 8202.

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)(b). 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?

s.116(1)(b) - non-compliance with conditions

9. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 was attached to the applicant’s visa. This condition requires that the applicant be enrolled in a full time registered course. The enrolment requirement in condition 8202 is, in the view of the Tribunal, a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment.

1. The applicant told the Tribunal that he had not been enrolled in a relevant course since January 2018 and 5 November 2018. He said that his parents had stopped paying his fees because he was involved with a woman from Pakistan and they did not approve of her. Asked if they were paying his fees in relation to his new course the applicant said that they were because he had managed over the past several months to change their mind.

2. Asked if he was aware of the consequences of failing to maintain his enrolment the applicant said that he knew his visa would eventually be cancelled for not paying his fees. He said that he had not received notification from his college that they were considering cancelling his visa but he deduced that without an enrolment his visa would be cancelled.

3. The Tribunal asked the applicant if he had approached the college or the department in relation to his inability to pay fees and to see whether there were any options available to him continue to study. The applicant said that he did not approach anybody. Asked if his parents knew that his visa had been cancelled he said that they were aware of his circumstances. Asked if either his parents or his girlfriend wanted to assist him in his review the applicant said that he didn’t want to get his girlfriend involved in his visa matters.

4. The Tribunal put to the applicant that it appeared that grounds for cancellation exists and asked for his comments. The applicant told the Tribunal that he was aware that grounds existed.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   CONSIDERATION OF DISCRETION

6. 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’.

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

8. The applicant has a girlfriend in Australia but she is not a citizen or permanent resident and the applicant told the Tribunal that she was considering options of migrating to Canada. He works as an Uber driver part time and the Tribunal does not consider that Uber would be placed in any position of hardship should the applicant be required to quit his employment and leave Australia.

9. Asked if he could complete his studies in India, the applicant told the Tribunal that whilst he believed it might be difficult he had not made any inquiries. The Tribunal put to him that it seemed difficult to believe that the qualifications he had received in Australia would not assist him in some way to continue his studies. The applicant repeated that he had not made any inquiries.

10. The applicant claims that he wishes to complete his studies in Australia and his current course is only for one year. The Tribunal accepts that the applicant may want to complete his studies here but at the time when he knew that his visa would be cancelled he made no attempt to approach the department or the college to ascertain whether he could somehow continue his studies given his circumstances. This does not indicate to the Tribunal that he placed his studies in a particularly high order of priority.

11. The applicant also claimed that he was suffering during this period and he was confused and possibly depressed. He provided no evidence to support these claims. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia.

12. There is no evidence before the Tribunal to suggest that applicant has otherwise been in breach of any other visa conditions.

13. The Tribunal has considered the degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant if his visa is cancelled. The applicant told the Tribunal that his girlfriend is currently studying under a scholarship which provides her with a living allowance and study fees. It seems to the Tribunal that if the applicant were required to depart Australia his girlfriend may be in a more difficult financial position without his income, but would not, in the view of the Tribunal suffer such hardship such that it would warrant the grant of a visa.

14. The Tribunal has considered the circumstances in which the ground for cancellation arose. The applicant told the Tribunal that his enrolment was cancelled because his parents stopped paying his tuition fees because they did not approve of his relationship with his girlfriend. The applicant did not approach the college to let them know of his financial situation and explore options to allow him to continue his studies. Nor did he approach the department of Home Affairs to inform them of his change of circumstances. The Tribunal does not consider these matters to be outside the control of the applicant such that they would persuade the Tribunal to consider not cancelling his visa.

15. There is no evidence before the Tribunal that the applicant’s past and present behaviour towards the department has been anything other than cooperative.

16. The Tribunal has considered whether there would be consequential cancellations under s.140 and found that there are none.

17. The Tribunal has considered 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.

18. If the applicant does not depart Australia whilst his bridging visa is still valid he may well be liable for detention and removal from Australia. The applicant’s decisions in regard to maintaining a lawful status in any event is a matter for him and would not be the consequence of the Tribunal’s decision not to cancel his visa.

19. If the applicant’s visa is cancelled he may be prevented from applying for a further visa whilst in Australia and may also be adversely affected if he applies for a subsequent visa to return to Australia. The Tribunal does not consider these matters to be other than what is isntended by the Act and not specific to the applicant and gives them only some weight in the applicant’s favour.

20. The Tribunal does not consider that there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, which would be breached as a result of the cancellation. The applicant has no children and he has not provided any evidence to the Tribunal that his removal would be in breach of any international obligations.

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

    DECISION

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

    Ann Duffield
    Senior Member