Singh (Migration)

[2018] AATA 4867

Singh (Migration) [2018] AATA 4867 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurmail Singh

CASE NUMBER:  1732720

DIBP REFERENCE(S):  BCC2017/3701019

MEMBER:Tigiilagi Eteuati

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 September 2018 at 3:44 pm (QLD time)

DATE OF WRITTEN RECORD:                2 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant's class TU visa. 

Statement made on 02 October 2018 at 4:35pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – breach of condition –period of no enrolment – poor academic performance – hardship – family disappointment – decision under review affirmed 

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

APPLICATION FOR REVIEW

1. This is an application for review of decision dated 14 December 2017 made by a delegate of the Minister for Immigration to cancel the applicant's subclass 573 visa under section 116 of the Migration Act 1958 (the Act).

2. At the hearing on 12 September 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

   ORAL DECISION OF MEMBER ETEUATI  

3. The delegate cancelled the applicant’s visa on the basis that the applicant breached the condition of his visa to be enrolled in a registered course.  The issue in the present case is whether that ground of cancellation is made out, and if so, whether the visa should be cancelled.  The applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   CONSIDERATION OF CLAIMS OF EVIDENCE

4. 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. If the applicant has breached that condition, under section 116 of the Act, the visa may be cancelled.

   Did the applicant comply with condition 8202?

5. Condition 8202 as it applies in this case requires that students remain enrolled in registered courses.  The Minister's delegate found that the applicant had not been enrolled in a registered course since his enrolment in a Bachelor of Business was cancelled on 31 March 2017.  The applicant has admitted that this is the case and the Tribunal finds that the applicant has not been enrolled in a registered course since 31 March 2017.  On the evidence before the Tribunal, the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202.

   Consideration of the discretion to cancel the visa.

6. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.  There are no matters specified in the Act and Regulations that are required to be considered in relation to the exercise of the discretion.  However, the Tribunal has had regard to the matters raised by the applicant as to why the visa should not be cancelled and to all the material before the Tribunal.  The Tribunal has also had regard to Departmental policy guidelines contained in the Department's Procedures Advice Manual.

7. When the applicant applied for the subclass 573 visa and when he was granted that visa, he was enrolled in a Certificate IV in Business, to be followed by a Diploma of Management and then a Bachelor of Business.

8. The applicant said that he commenced the Certificate IV in Business at Holmes College in August 2015, and that course was to be conducted out of Holmes College campus in Cairns.  However, at the time, the applicant was living in Tully, where the applicant said he had moved for work, as he had a friend in Tully.  The applicant said that he travelled from Tully to Cairns on a number of occasions to attend classes in his course.  However, the applicant said that he didn't attend a number of classes and also missed the exams in his Certificate IV in Business.  He therefore failed that course.

9. He said that he approached Holmes College and his enrolment in the Diploma of Management was changed to a Diploma in Leadership and Management.  He said that he commenced that course in 2016, but again, due to a failure to attend classes and a failure to sit exams, he failed that course also.  The applicant's enrolment in the Bachelor of Business, which was due to begin in the beginning of 2017, was cancelled on 31 March 2017 as the applicant did not attend that course.  The Tribunal asked the applicant numerous times why he stopped studying and why he failed to be enrolled in a course from March 2017.

10. The applicant repeatedly said that it was his fault and gave no other reason apart from at one point saying that he was stressed and depressed at the time.  In addition, the applicant has failed to be enrolled in any course since March 2017 till today, even though there was no condition on his bridging visa after cancellation which prevented him from studying.  The Tribunal indicated to the applicant that his reasons given during the hearing for ceasing to study were very different from the reasons that he gave in response to the notice of intention consider to cancellation of his visa, which was sent to him on 20 November 2017.

11. In his reply to that notice on 23 November 2017, the applicant indicated that he discontinued his studies because his sister had been diagnosed with cancer in 2016.  He indicated in that letter that he dropped everything and went to live in Melbourne to support this sister.  At the hearing, the applicant said that he spent some time in Melbourne in 2015 before he began his Certificate IV in Business.  He said that after that he only visited Melbourne on three occasions and only for a few days at a time. 

12. The Tribunal asked the applicant whether he or any of his family members would suffer any hardship if his visa was to remain cancelled. The applicant said that he had a brother and a sister living in Australia, and he said that he would suffer the most hardship if his visa remained cancelled because he would have to return to Punjab, and he indicated that things weren't good in the Punjab, indicating that there were drugs in Punjab. 

13. The Tribunal put to the applicant its concern that because the applicant had failed to complete any course in Australia, had failed his Certificate IV course and his Diploma course and had not commenced his Bachelor's course, that the applicant may not have the ability to successfully undertake education whilst in Australia.

14. The applicant replied that he was confident that if he applied himself properly as he had failed to do in the past, that he would be able to successfully complete courses in Australia.

15. The Tribunal raised its concern with the applicant that because the applicant had attended his Certificate IV and Diploma courses sporadically and failed to attend the examinations for either of those courses, that he had ceased to be enrolled altogether from March 2017, and had not sought to enrol in any course from that day to the present despite there being no condition on his bridging visa which prevented him from studying, that he may not have the will or desire to successfully undertake a course in Australia.

16. The applicant told the Tribunal that he did wish to study and that given a chance, he would do everything that he could to study. 

17. The Tribunal finds that the applicant does not have the ability to successfully undertake a higher education course in Australia.  The Tribunal considers that this finding is supported by the fact that the applicant has failed to complete any course in Australia, that he failed his Certificate IV and his Diploma course. 

18. The Tribunal also finds that the applicant does not have the will or desire to successfully undertake a course in Australia, that is evidenced by the fact that the applicant did not satisfactorily attend at Holmes for his Certificate IV and Diploma courses, did not attend his examinations, failed to be enrolled altogether from March 2017 and has failed to enroll in any course since that date.

19. The Tribunal is reluctant to find that the applicant's sister has cancer, as he has provided absolutely no evidence of this, despite the Department's decision clearly indicating that the applicant had failed to provide evidence of this claim.  However, for the purposes of these proceedings, the Tribunal is willing to accept that the applicant's sister does in fact have cancer. 

20. However, at the hearing, the applicant said that he only learned of his sister's condition in 2017.  In addition, the applicant had told the Tribunal today that he had only visited Melbourne on three or four occasions during his entire stay in Australia, and that after initially being there in 2015, he visited only three times and for short periods of time on each occasion. Therefore, while the Tribunal is willing to accept that the applicant's sister has been diagnosed with cancer at some point, the Tribunal does not accept that the applicant moved to Melbourne for any significant period of time to care for his sister.  The Tribunal does not accept that the applicant was unable to study because he had to care for his sister.  In fact, the applicant could have relocated to Melbourne to care for his sister but had decided to remain in Tully to work. 

21. The Tribunal is willing to accept that the applicant and his family may suffer some disappointment that his visa was cancelled before he was able to complete any courses in Australia. However, because the Tribunal has found that the applicant has neither the will nor the ability to successfully undertake a course, setting aside the decision to allow the applicant to apply for another visa in Australia will only delay the inevitable result of the applicant's returning to India without having completed any courses.  In any event, the Tribunal finds that the applicant's lack of will or ability to successfully undertake an education course in Australia greatly outweighs any hardship that he or his family members may face as a result of a cancellation of his visa.

22. The Tribunal notes that had the applicant's visa not been cancelled, it was due to expire on 30 September 2018, two weeks from now.  The Tribunal is also aware that because the applicant's visa was cancelled for breach of condition 8202, that he is likely to be subject to a bar in public interest criteria 4013, preventing him from successfully applying for a visa for a period of three years from the cancellation of his visa.  However, as mentioned previously, the Tribunal still finds that the applicant's lack of will and desire to successfully undertake an education course in Australia greatly outweighs any hardship considerations. 

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

    DECISION

24. The Tribunal affirms the decision to cancel the applicant's class TU visa. 

    Member

    Tigiilagi Eteuati