Singh (Migration)

[2018] AATA 5471

Singh (Migration) [2018] AATA 5471 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

CASE NUMBER:  1621136

HOME AFFAIRS REFERENCE(S):           BCC2016/3312975

MEMBER:Melissa McAdam

DATE:16 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2018 at 12:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – did not commence course – not enrolled in registered course – not genuine student – breached working conditions – family illness – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

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 7 December 2016 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 of the Migration Act 1958 (the Act).

2. The applicant was represented in relation to the review by his registered migration agent.

3. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not a genuine student.

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

5. The applicant held a Subclass TU573 Student visa, with expiry date 15 March 2018.

6. On 11 November 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her Student visa, inviting him to comment on a possible breach of s.116(1)(fa)(i) of the Act.

7. The NOICC stated that the Department’s records indicated that the education provider, University of Canberra College, cancelled the applicant’s UC English Language Course because of his failure to commence the course, resulting in the cancellation of his Diploma of Business and Bachelor of Business Administration courses. The NOICC stated that the applicant did not study in a registered course for one year, between 3 October 2015 and 3 October 2016.

8. On 24 November 2016 the applicant’s Agent wrote to the department stating that the applicant failed his study in Australia because he found it very hard.  He successfully completed the UC English Language Programme on 2 October 2015. He then wanted to change college but could not get admission anywhere because his CoE was cancelled. Finally the GCA college enrolled him and he is currently studying an Advanced Diploma of Leadership and Management, which commenced on 4 October 2016 and is due to finish on 15 September 2017. He is performing well in his study.

9. On 7 December 2016 the delegate cancelled the visa on the basis that the applicant was not a genuine student.

10. The applicant submitted a copy of the delegate’s decision to the Tribunal. The decision detailed the following:

    ·The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa  on 30 September 2014.

    ·When he applied for the visa his approved study plan was:

    oUC English Language Programs, 13 October 2014 to 19 December 2014, with the University of Canberra College.

    oDiploma of Business (Extended), 2 March 2015 to 19 January 2016, leading to a Bachelor of Business Administration, 15 February 2016 to 31 December 2017, both with the University of Canberra.

    ·The Department has access to the Provider Registration and International Students Management Systems (PRISMS) that is administered by the Department of Education.

    ·PRISMS indicates that the University of Canberra College implemented an intervention strategy for the applicant and created an extension Confirmation-of-Enrolment (CoE) for a new UC English Language Programs course, 23 February 2015 to 1 May 2015.

    ·The University of Canberra College approved a deferral of the course 23 April 2015, because of compassionate or compelling circumstances. On the same date, 23 April 2015, the University of Canberra College also approved a CoE for another UC English Language Programs course, 7 May 2015 to 17 June 2015.  This CoE was cancelled to change the course end date and a new CoE approved, 7 May 2015 to 2 October 2015.

    ·The University of Canberra College again implemented an intervention strategy and created an extension CoE for another UC English Language Programs course, 12 October 2015 to 18 December 2015. The University of Canberra College cancelled the course because the applicant failed to commence the course.

    ·Due to the applicant’s failure to complete the UC English Language Program his intended Diploma of Business and Bachelor of Business Administration courses were cancelled for 17 February 2015 and 8 October 2015.

    ·PRISMS also indicates that Group Colleges Australia Pty Ltd approved a package of courses on 19 September 2016, in Advanced Diploma of Leadership and Management 4 October 2016 to 15 September 2017, English for Academic Purposes - Beginner to Advanced (8- 52 Weeks) 16 October 2017 to 8 December 2017, and Bachelor of Business 15 January 2018 to 4December 2020.  PRISMS indicated the applicant was currently studying the Advanced Diploma of Leadership.

    ·The applicant failed to successfully complete the UC English Language Program.

    ·He did not study in a registered course of study for 12 months, from 3 October 2015 to 4 October 2016.

11. The applicant appeared before the Tribunal on 5 November 2018 to give evidence and present arguments. The following is a summary of the information he presented at the hearing.  

    a.He confirmed that he had not studied in Australia for the 12 month period. He last studied in January 2017.  He was enrolled in an Advanced Diploma of  Leadership and Management which he commenced in October 2016.

    b.He stopped studying in 2015 because his father was seriously sick and underwent heart surgery. The applicant could not think about studies. He wanted to help his father financially so he worked and did not study. He did not have family in Australia to guide him.

    c.In February 2016 he got a new education agent and received a new offer of enrolment in August. He moved to Sydney and tried for six months to obtain a new CoE. He started to study again. He wanted to do the last semester of his diploma but his visa was cancelled on 7 December 2017.  He doesn’t know what to do.

    d.He has been in Australia since 2014. He started studying in Canberra and failed.  He then obtained a new CoE for English language, which he passed.  He then had one month break before commencing his Diploma course but his father got sick.  So for one year he did not study.

    e.He supported himself in Australia by working . He worked 35 hours a week and was breaching his visa conditions by working more than 20 hours a week.

    f.He had nothing to say about his visa’s expiry date having already passed.

    g.He wants to complete his studies in Australia. He made a big mistake in the past by not studying. He enjoyed his study but his father got sick and all his circumstances changed.  

    h.His parents do not know his visa has been cancelled.  He doesn’t want to tell them because they are sensitive and will cry a lot. 

    i.His father is still financially supporting the applicant. The applicant also works 20 hours a week.

    j.His visa cancellation hurt him a lot because his circumstances were not good.  His whole career was based on coming to Australia to study.  He will return to India with nothing from Australia. He sought counselling from Canberra University and it did not help him much. 

    k.He studied at the Canberra University and passed an English course.  He was about to go on to a Diploma of Business.  Two weeks before that he received a call from his sister that his Dad was seriously ill and in hospital for heart bypass surgery.  He thinks this occurred in July 2015. The surgery went well but his father was not discharged until his hospital bill was paid. The applicant could not resume his studies because he had to work to earn money to pay his father’s hospital bills.  His father was discharged in December 2015.

    l.He has not mentioned his father’s illness or hospital discharge before because he didn’t get the opportunity.

    m.He stated he would provide documents about his father’s illness to the Tribunal within one week.

    Post-Hearing Written Submission

12. On 12 November 2018 the applicant’s Agent forwarded the following document copies to the Tribunal:

    i.The biodata pages of his Indian passport.

    ii.A Departmental Confirmation of Enrolment (CoE) for the applicant in the University of Canberra, dated 7 January 2015.

    iii.A UC College Certificate of Attainment  in ‘English for Academic Purposes’.  He commenced the course on 11 May 2015 and completed it on 2 October 2015.

    iv.A UC College Assessment Report for Session 4 of 2015 in ‘English for Academic purposes’ recording that the applicant’s ‘Final Percentage’ was 57.7%, below the ‘minimum score required’ of ‘60%’.

    v.A UC College Assessment Report for Session 3 of 2015 in ‘English for Academic purposes’ recording that the applicant’s ‘Final Percentage’ was 60.9%, above the ‘minimum score required’ of ‘60%’.

    vi.A letter of offer of enrolment at the Academy of Management and Science for a full-time course in Commercial Cookery and Diploma of Hospitality, commencing in April 2016.

    vii.The applicant’s Senior Secondary Examination Certificate from the Punjab School Education Board, dated 18 May 2013.

    viii.An undated letter from Dr Shashi Jindal, Chief Cardiovascular and Thoracic Surgeon, Ivy Hospital, Mohali in Punjab.  The writer confirms that Mr Shangara Singh was admitted to the hospital on 27 July 2015, underwent bypass surgery on 10 August 2015, and was discharged on 3 December 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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)(fa)(i). 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)(fa) - not a genuine student

14. A visa may be cancelled under s.116(1)(fa)(i) if the Minister 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.

15. 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]).

16. 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 decision-maker 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.

17. On the evidence before it, the Tribunal finds that the applicant has not completed any higher sector education course, and has completed only a one term education course, since his arrival in Australia in late 2014.

18. The Tribunal notes the lack of progress the applicant has made in his studies and the recurring cancellations of his enrolments. On the applicant’s own admission he failed to attend classes and gave up on his studies in October 2015. The Tribunal considers that if the applicant was a genuine student he would have attended class and made further progress in relation to his studies. The Tribunal finds that the applicant has not been a genuine student in Australia. The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(fa)(i) is made out.

19. As that ground does not require mandatory cancellation under s.116(3), the Tribunal will proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

20. 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’.

    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

21. The applicant’s stated purpose to travel to and stay in Australia, was to study.  The applicant has not been studying in Australia for a substantial period of time.

22. The applicant has not claimed he has a compelling need to remain in Australia.  Nor does the information and evidence before the Tribunal indicate any compelling need for the applicant to remain here. 

23. He stated he needed to remain in Australia so as not to let his parents or himself down.  While the Tribunal accepts this may be how the applicant feels, it does not equate to a compelling need to remain.

24. The Tribunal considers this matter does not support the setting aside of the visa cancellation.

    The extent of compliance with visa conditions

25. The applicant stated at hearing that he had breached his visa condition to not work more than 20 hours a week, by working 35 hours a week.

26. The Tribunal considers this factor weighs against setting aside of the visa cancellation.

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

27. The applicant has presented information that the cancellation will cause him psychological or emotional hardship, in that he will feel he has let his parents and himself down. The Tribunal accepts this would be distressing for the applicant but its significance is substantially outweighed by the applicant’s lack of efforts to study and comply with his visa conditions in Australia.

    The circumstances in which ground of cancellation arose

28. The applicant provided evidence at hearing that he did not continue his studies in Australia because his father became ill in July 2015 and had heart surgery in October 2015, remaining in hospital until December 2015.

29. The applicant also stated that he felt compelled to give up his studies so he could work to earn money to pay for his father’s discharge from hospital. The Tribunal has located information which indicates that it is not an uncommon practice in some Indian hospitals for a patient to be kept at hospital, against their will, pending the payment of the hospital bill, with some force being used to stop the discharge of the patient.[1]  The Tribunal therefore gives the benefit of the doubt to the applicant that this happened to his father.  However the Tribunal notes the applicant was able to work 20 hours a week on his Student visa  and so was able to continue studying while working to help his father.  The Tribunal notes further the applicant’s evidence that his father has continued to support the applicant’s studies financially while the applicant has been in Australia. This does not indicate that the applicant’s father required money from the applicant.

    [1] See e.g.: The Economic Times, 2017, “Hospitals Can't Hold Patients Hostage For Unpaid Bills: Delhi High Court”, 26 April, Indian Express, 2016, “Mumbai: Confined in hospital for 50 days for not paying bill, patient finally discharged”, 28 December. Chatham House Research Paper, 2017, ‘Hospital Detentions for Non-payment of Fees: A Denial of Rights and Dignity’, December.

30. The Tribunal also notes that the only studies the applicant has managed to complete in Australia were during the period he stated he was too affected by his father’s illness to continue studying. This is contradictory to the applicant’s claim that news of his father’s illness in 2015 caused him to stop studying.

31. The Tribunal further notes that the applicant made no mention of his father’s illness being the cause for his non-compliance, in his response to the Department’s NOICC.  The applicant stated at hearing this was because he did not have an opportunity to respond to the Department.  However the applicant’s Agent made a written submission to the Department on the applicant’s behalf and also provided documents to the Department obtained from the applicant, to argue that the visa should not be cancelled.  In these circumstances the Tribunal does not accept that the applicant did not have the opportunity to tell the Department about this father’s illness being the cause for his non-compliance.

32. While the Tribunal accepts that his father’s illness would be very distressing to the applicant there is little to indicate that it prevented him from continuing his studies after October 2015, a time well after his father’s successful surgery.

33. The applicant’s Agent initially submitted to the Department that the applicant stopped studying because he found his course too hard. While this may have been so it does not explain why the applicant was not able to arrange a more suitable course of studies with an education provider.

34. The Tribunal considers that the circumstances in which the ground of cancellation arose, do not support the revocation of the cancellation.

    The past and present behaviour of the visa holder towards the department and Tribunal

35. There is no indication that the applicant has been uncooperative or involved in any bad behaviour in his dealings with the Department or the Tribunal.

    Whether there would be consequential cancellations under s.140

36. There is no indication in any of the information before the Tribunal that the cancellation of the applicant’s visa causes any consequential cancellations.  The Tribunal therefore finds this factor is not a relevant consideration.

    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

37. If the applicant remains in Australia without a valid visa he may become liable to detention. However this not an actual consequence of the cancellation but  a potential consequence dependent upon the applicant’s future actions.  If the applicant obtains a further visa or departs Australia before his bridging visa expires he is not subject to mandatory immigration detention.

38. If the applicant departs Australia while on a Bridging visa or unlawful, he will be subject to Public Interest Criterion 4014 which provides for a 3 year period from the date of departure in which the applicant may not be granted a visa without the Minister’s approval. However this possibility has been brought about by the applicant’s own action in failing to fulfil his visa codition. The seriousness of the applicant’s breach outweighs the concerns about the difficulties the applicant may have in returning to Australia within a three year period.

    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

1. There is no information before the Tribunal that any international obligations would be breached as a result of the cancellation of the applicant’s visa.  The Tribunal gives this factor no weight in the applicant’s favour.

   Any other relevant matters.

2. The Tribunal considers no other relevant matter arises as to why the applicant’s visa should not be cancelled.

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

   DECISION

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

   Melissa McAdam
   Member

   
   

   ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.