Singh (Migration)

[2018] AATA 5014

Singh (Migration) [2018] AATA 5014 (28 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jagdeep Singh

CASE NUMBER:  1700265

HOME AFFAIRS REFERENCE(S):           BCC2016/3187538

MEMBER:Stephen Conwell

DATE:28 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2018 at 3:06pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – enrolment in registered course of study – substantial gap in study – continued working in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 condition 8202

CASES
Liu v MIMMIA [2003] FCA 1170

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis the applicant breached Condition 8202(2) – enrolment. 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. A copy of the Decision Record was submitted by the applicant to the Tribunal for the purposes of the review.

4. The applicant appeared before the Tribunal on 22 October 2018 to give evidence and present arguments.

5. 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

6. 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?

7. 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).

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

9. On 4 November 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with Condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, Condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of Condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

10. According to the Decision Record, information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 25 November 2015.

11. At hearing, the applicant’s stated in oral evidence that:

    ·       He came to Australia for the purpose of study.

    ·       He enrolled in a Diploma of Information Technology (IT) leading to a bachelor degree in the same subject.

    ·       His parents were funding his studies but encountered financial difficulties and were unable to pay his school fees.

    ·       He was looking to transfer to a cheaper course in the Vocational Education and Training (VET) Sector when his Student visa was cancelled.

    ·       He agreed that he had not been enrolled for a period of 13 months from 25 November 2015.

12. Having regard to the information in his PRISMS record (as noted in the delegate’s decision), and to the applicant’s admission in his oral evidence, the Tribunal finds that the applicant ceased to be enrolled in a registered course from 25 November 2015.

13. The Tribunal finds that the applicant breached Condition 8202(2)(a) of his visa.

14. 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

15. 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 Procedures Advice Manual (PAM3) of the Department of Immigration and Border Protection (Department).

16. On 6 December 2016 the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with Condition 8202(2)(a) of his visa. 

17. The applicant did not respond to the NOICC.

18. In his oral evidence the applicant told the Tribunal that:

    ·       His parents were funding his studies and living expenses in Australia, which he supplemented through part-time work.

    ·       He was having difficulties with his diploma studies and need more time to overcome this in order to proceed to his bachelor course.

    ·       When his parents were unable to continue to fund his studies, he was unable to make up the shortfall through his own part-time work. He was unable to continue with his studies because of a lack of funding.

    ·       He was looking to transfer to a cheaper VET course when his visa was cancelled.

    ·       He agreed that he was not enrolled in a registered course from 25 November 2015.

    ·       He did not receive the NOICC because it had been sent to his previous address, [address deleted]. He had moved from his Laverton abode to accommodation in Noble Park in mid-December 2016.

    ·       He acknowledged that he had been negligent in not advising the Department of his change of address.

    ·       He worked part-time at Pickles Auctions in Sunshine.  He abided by his visa conditions with respect to his work. When he wasn’t working he simply stayed home.

    ·       He was homesick for a period of time during his non-enrolment.

    ·       He did not seek medical advice or counselling or other form of treatment for his mental state at the time

19. The Tribunal observed that the NOICC sent on 6 December 2016 and the subsequent Notification of Cancellation sent on 23 December 2016, were both sent by registered mail to the Laverton address As well as being sent via email to the same email address. The applicant claims that he first became aware of the cancellation only when he discovered the emailed Cancellation letter of 23 December 2016 in the ‘spam’ folder of his personal computer on that same day.

20. The Tribunal put to the applicant that it is the responsibility of student visa holders to advise the Department and their education providers of their residential address and of any changes to their residential addresses within seven days after the change. The applicant accepted that it had been negligent of him not to have done so.

21. The Tribunal also reminded the applicant that it is the responsibility of student visa holders to ensure that they have access to pre-existing funding to support themselves for the duration of their study in Australia and he would therefore have provided a financial guarantee to the Department before his visa was granted. The financial guarantee would have included the costs of his study, accommodation, travel and overseas student health cover for the duration of his studies.

22. The Tribunal notes the applicant obtained a Higher Education Student visa to travel to and study in Australia. Therefore the applicant’s purpose for remaining in Australia, was to study at a level commensurate with his Higher Education Student visa. The Tribunal put to him that, given he was only able to work 20 hours per week, it is unlikely that he could continue to pay the total tuition fees of his Bachelor of IT, unless his parents resumed their funding of his studies.

23. If the applicant’s visa is cancelled, he may suffer some financial hardship. He stated that his family have spent a lot of money for his studies overseas which would be waste in the event of his visa cancellation. He would also become an unlawful non-citizen and liable for detention under s.189 and removal under s.198 of the Act.

24. However there is no evidence the applicant would be subject to indefinite detention in Australia if his visa is cancelled. If the applicant’s visa is cancelled he would also be subject to s.48 of the Act, which means he would have limited options for applying for further visas in Australia.  He would also be subject to PIC 4013, which means he may not be granted a temporary visa for three years from the date of the cancellation.

25. The circumstances giving rise to the cancellation of the visa were that the applicant had not maintained enrolment in a registered course of study for some 13 months at the time of the Department decision.

26. There is no evidence before the Tribunal that the applicant has been un-cooperative with the Department or the Tribunal. Based on the evidence before it the Tribunal is satisfied that Australia’s international protection obligations would not be breached if the applicant’s visa is cancelled.

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

    DECISION

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

    Stephen Conwell
    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.