Singh (Migration)

[2018] AATA 4955

Singh (Migration) [2018] AATA 4955 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpinder Singh

CASE NUMBER:  1621498

HOME AFFAIRS REFERENCE(S):           BCC2016/3456733

MEMBER:Joseph Lindsay

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2018 at 3:39pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – support from family – PRISMS record – change COEs multiple times – partner’s pregnancy and health – care of partner and children – no attempt to contact Department or education provider – 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 13 December 2016 made by a delegate of the Minister for Immigration 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 breached a condition of his visa, namely condition 8202, because he was not enrolled in a 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 10 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Ms Avasou Vaega, and the applicant’s sister-in-law, Ms Atua Mika. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, although the applicant spoke English most of the time and occasionally had the assistance of the interpreter when required.

4. 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

5. The applicant informed the Tribunal that he had applied for a partner visa (801 visa) with his current partner. The Tribunal indicated to the applicant that while the Tribunal acknowledged that the applicant had applied for a partner visa, the hearing was in relation to his student visa and whether or not it should be cancelled.

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. In accordance with s.359AA of the Act, the Tribunal gave the applicant a copy of his Provider Registration and International Student Management System (PRISMS) record in regard to his student enrolments. The applicant indicated he knew what the record was but had not seen a copy of the record prior to the hearing.

10. The Tribunal indicated to the applicant that the information in the PRISMS record would be the reason or part of the reason for affirming the decision under review. The Tribunal indicated to the applicant the information in the PRISMS record indicated that the grounds for cancellation may exist, and the consequences of that are that the information may lead the Tribunal to affirm the decision under review. The Tribunal invited the applicant to comment on or respond to the information. The Tribunal indicated to the applicant he could seek time to comment on the information. The Tribunal asked the applicant whether he wanted the Tribunal to adjourn and allow him time to comment on the information or whether he wanted to continue on in the hearing. The applicant indicated he did want an adjournment of 10 minutes, and he was granted an adjournment of 10 minutes to consider the PRISMS record before the hearing then continued.

11. The Tribunal put to the applicant that an issue to be considered was whether there were grounds for cancellation. The Tribunal went through the PRISMS record with the applicant. The Tribunal indicated to the applicant that the grounds for cancellation appeared to be made out. In response, the applicant indicated that he agreed he had not been enrolled in a registered course since 5 February 2016, that condition 8202 was breached and that the grounds for cancellation were made out.

12. On the evidence before the Tribunal, the Tribunal finds that the applicant was not enrolled in a registered course of study and, accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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.’

14. The Tribunal notes from the decision record that the applicant did not respond to the notice from the Department. The applicant indicated that he did not receive the notice from the Department. 

    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

15. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that his purpose in coming to Australia was to study.

16. There is no information before the Tribunal that indicates that the applicant’s purpose in travelling to and staying in Australia was not to study. The applicant did not indicate to the Tribunal that he had a compelling need to travel to or remain in Australia.

17. The Tribunal places low weight on this information in the applicant’s favour.

    The extent of compliance with visa conditions

18. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he did not wish to say anything. The Tribunal notes that the applicant had already indicated that he had breached a condition of his visa (8202). The Tribunal places low weight on this information in the applicant’s favour.

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

19. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that his family sent him to Australia for studies and that if he went back to India without completing his studies there would be problems, and that he wanted the chance to complete his studies. The applicant indicated if he went back to India, he might be homeless. The applicant further explained that his family had helped him in order to support him in his studies, but that they may not support him any further if he returned to India without completing his studies.

20. The Tribunal accepts there may be some hardship to the applicant and his family members if his student visa is cancelled. However, there is no indication that the applicant could not continue his studies in India if he chose to do so.

21. The Tribunal places low weight on this information in the applicant’s favour.

    Circumstances in which ground of cancellation arose; if cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence; the guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

22. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that his enrolment ceased in February 2016 because his lawyer misadvised him.

23. The Tribunal indicated to the applicant that his PRISMS record showed he himself had changed his confirmation of enrolment (COE) multiple times.

24. The applicant indicated that while he was staying with his partner, Ms Avasou Vaega, in 2016, he found out that she was pregnant and so he had to stay with her and look after her. The applicant indicated that in March 2016 his partner got pregnant, she got very sick and he had to stay in the hospital while she was pregnant.

25. The Tribunal asked the applicant whether he was telling the Tribunal that the reason why he stopped studying was that his partner got pregnant, and then she fell ill and then he had to look after her, to which he indicated that was correct.

26. The Tribunal notes that since the hearing the applicant has provided some medical information about his partner. The medical notes range from 2016 to 2018. The Tribunal notes that the earliest medical note’s date is 28 April 2016 – a date that is well after the date that the applicant ceased to be enrolled in a registered course of study. Based on the information before the Tribunal, the Tribunal finds that the medical information in the form of ‘progress notes’ about the applicant’s partner does not support the applicant’s submission that his partner’s medical situation was such that required him to support her to the extent that caused him to cease his enrolment in a registered course on 5 February 2016. The Tribunal accepts that the applicant appears to have had a child with his partner in 2016. However, the Tribunal does not accept that this factor alone sufficiently justifies the applicant’s decision to allow his course enrolment to cease. The applicant appears to have taken no further steps to attempt to continue his course enrolment, including making contact with the course provider or Department in an endeavour to seek assistance. The Tribunal also finds that the applicant only gave vague information about his submission that his lawyer’s poor advice led to him ceasing his enrolment. Accordingly, the Tribunal does not accept the applicant’s submissions in this respect.

27. The Tribunal places low weight on this information in the applicant’s favour.

    Past and present behaviour of the visa holder towards the Department

28. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he did not wish to say anything.

29. The Tribunal has no information to suggest that the applicant has not cooperated with the Department either in the past or present.

30. The Tribunal places low weight on this information in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

31. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependant’s attached to his student visa.

32. The Tribunal notes that the applicant’s partner is a citizen of New Zealand. The Tribunal has no information to suggest that cancellation of the applicant’s student visa would have any adverse impact on any other person’s visa.

33. The Tribunal places low weight on this information in the applicant’s favour.

    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

34. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

35. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully. At present, the applicant is on a Bridging Visa E for the purposes of the review. However, once the decision is affirmed, that Bridging Visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to India. The Tribunal notes however that the applicant has applied for a partner visa.

36. The Tribunal accepts that the applicant will receive a three year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

37. The Tribunal places low weight on this information in the applicant’s favour.

    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

38. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated there would not be a breach of any international obligations if his student visa was cancelled.

39. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

40. The Tribunal asked the applicant whether there were any other relevant matters that the applicant wished to raise as to why his student visa should not be cancelled.

41. In response, the applicant indicated that his family and children need him. The applicant explained that he had two children with his partner, and that he needed to stay with his partner and help her with the children. The applicant indicated he also wanted to complete his study as well. The applicant explained that he wanted to complete his studies so that he could get a better paying job to pay for the expenses of raising his family. The applicant indicated he wanted to complete a Bachelor of Business because he wanted to get into marketing in Australia. The applicant indicated that he saw a better future in Australia and wanted to stay in Australia with his partner and children. The applicant indicated he got bad advice from his lawyer.

42. The Tribunal explained that the applicant was granted a student visa to allow him to come to Australia to study. The Tribunal explained that it acknowledged what the applicant was saying, that he had his partner and children now, and that the applicant wanted to complete his studies because that would help him help his family in Australia. However, the Tribunal put to the applicant that those reasons are not the reasons why a person gets a student visa.

43. In response, the applicant indicated that his family in India would want him to complete his studies, and that he did not know what their response would be if he did not complete his studies.

44. The Tribunal put to the applicant that the Tribunal may give low weight to the reasons he provided (i.e. looking after his family in Australia and working in Australia, as well as his Indian family’s wishes that he complete his studies). In response the applicant indicated he had nothing else to say.  

45. The Tribunal then took evidence from the applicant’s partner, Ms Vaega, who indicated she was responsible for her partner not completing his studies. Ms Vaega indicated to the Tribunal that the applicant would finish his studies if given a second chance.

46. The Tribunal then took evidence from the applicant’s partner’s sister, Ms Atua Mika, who indicated that the applicant has helped her sister a lot and had been a good influence on her. Ms Mika indicated that she herself had seven children and that the applicant also helped her with her children. Ms Mika indicated that the applicant was a good father and a good partner to his sister. Ms Mika indicated that if the applicant was given a second chance, he would finish his studies. 

47. In consideration of the above information, the Tribunal accepts that the applicant wishes to stay with his partner and children in Australia. The Tribunal accepts the information from Ms Vaega and Ms Mika that the applicant is good to his partner and his children and Ms Mika’s children. The Tribunal places some weight on this information.

48. However, the Tribunal does not accept that the applicant has a genuine intention of resuming his studies to complete a Bachelor of Business degree. The applicant appears to have taken no further steps to attempt to continue his course enrolment, including making contact with the course provider or Department in an endeavour to seek assistance. The Tribunal also finds that the applicant only gave vague information about his submission that his lawyer’s poor advice led to him ceasing his enrolment. Accordingly, the Tribunal does not accept the applicant’s submissions in this respect.

49. The Tribunal notes that the applicant provided documentary information to the Tribunal, including:

    a.a Confirmation of Enrolment for General English (from 26 September 2015 to 21 October 2015);  

    b.a letter from Holmesglen dated 2 October 2014 about the applicant’s enrolment;

    c.a certificate of participation for the Certificate III in Spoken and Written English dated 23 January 2015;

    d.statement of results from Holmesglen dated 13 July 2015;

    e. a letter from Stott’s College dated 1 September 2015 about the applicant’s enrolment;

    f. his certificate of marriage dated 8 January 2017;

    g. his official certificate of marriage dated 8 January 2017;

    h.a letter form SASHS dated 15 February 2017. 

50. The Tribunal finds that none of the documentary information listed above has any relevance to why the applicant ceased to be enrolled in a registered course of study on 5 February 2016.

51. Accordingly, the Tribunal places low weight on this information in the applicant’s favour.

    Conclusion

52. The Tribunal finds that since the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 10 October 2014, now over four years ago, the applicant has not completed any higher education courses.

53. The Tribunal finds that since 5 February 2016 the applicant has not been enrolled in a registered course of study and, accordingly, the applicant has not complied with condition 8202(2).

54. The Tribunal is not satisfied that the applicant’s circumstances warrant the Tribunal exercising its discretion to not cancel the applicant’s student visa.

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

    DECISION

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

    Joseph Lindsay
    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.