Singh (Migration)

[2018] AATA 1549

Singh (Migration) [2018] AATA 1549 (13 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh

CASE NUMBER:  1618084

DIBP REFERENCE(S):  BCC2016/3021134

MEMBER:Mr S Norman

DATE:13 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 April 2018 at 2:10pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Failure in course units – Family illness – Attempt to change courses – Working in Australia – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 October 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 had 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. The applicant appeared before the Tribunal on 12 April 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis he was not enrolled in a registered course. At hearing, the Tribunal put to the applicant that subject to his comments, the following information may be the reason, or part of the reason, for affirming the decision under review. The Tribunal also advised the applicant he may seek an extension of time within which to provide evidence and submissions about the following information. No request for an extension was made.

8. That being said, the information was that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 12 February 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 October 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 31 December 2015. Therefore, it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.

9. By emailed response of 20 October 2016 (to the Department’s NOICC letter), the applicant said he was not “happy with the course” that he had initially chosen; he suffered “successive failures in couple of units”; he sought to change his course and met with the student coordinator at the Meadowbank TAFE; he was unable to change his course; his younger brother travelled to Australia in June 2015 and he was suffering from typhoid and jaundice which took almost 2 months for him to recover.

10. At hearing, the applicant said he had not successfully completed any course since arriving in Australia (in February 2014[1]). He also said he ceased all studies around November 2015, and he had ceased being enrolled in a registered course of study since 31 December 2015.

    [1] PRISMS records indicate the applicant had ‘finished’ inter alia a Diploma of Accounting on 30 December 2015; and a Certificate IV in Accounting on 30 June 2015 (Tribunal file – folio 34).

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. 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 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 Department’s Procedures Advice Manual (PAM3).

13. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant said he travelled to Australia to commence a Certificate IV in Accounting, then a Diploma in Accounting at (Meadowbank) TAFE, and then a Bachelor of Accounting at the University of Western Sydney. When asked at hearing, the applicant said that since arriving in Australia he had not successfully completed any course (though as noted above, the applicant had ‘finished’ some courses). For the purposes of this decision, the Tribunal will accept the applicant’s initial intention in travelling to and residing in Australia was for the purposes of study.

14. Regarding the applicant’s compliance with any conditions to which the grant of his visa was subject, the applicant was not enrolled in registered course of study since 31 December 2015. At hearing, the applicant confirmed he had not been enrolled in a registered course of study since that time. The Tribunal believes the breach to be significant.

15. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, in his response to the Department’s NOICC letter, he did not make specific claims that he or his family would suffer hardship if his visa was cancelled. At the hearing, the applicant said he still wished to study in Australia. The Tribunal proposes to accept that if the applicant’s visa is cancelled, he may suffer some limited hardship.

16. Further if the applicant’s visa is cancelled he would become an unlawful noncitizen and liable to be detained under s.189 and removed under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied he would be subject to indefinite detention. Further, I note he could apply for a Bridging visa and be allowed to remain in the community in order to finalise his affairs prior to departing.

17. If the applicant’s visa is cancelled, he would be subject to s.48 of the Act, which means he would have limited options to apply for further visas in Australia. He would also be subject to Public Interest Criterion 4013, meaning he could not be granted a temporary visa for three years from the date of cancellation.

18. Regarding the circumstances in which the ground for cancellation arose, the applicant had referred to his ‘successive failures’; that he had claimed to have repeatedly asked about changing his course from Accounting to Business studies; that the student co-ordinator had not allowed him to change courses; and also to the health of his younger brother. When discussed at hearing, the applicant said he was not given a letter of release from Meadowbank TAFE. He said he contacted the Student Co-ordinator at Meadowbank TAFE on more than one occasion and he also contacted an education agent. However, no release letter was forthcoming.

19. As stated at hearing, the applicant was advised when granted the Student visa that he must retain enrolment in a registered course while holding the Student visa (with no more than a two month gap). At hearing, he also conceded he did not contact the Department to discuss his circumstances, prior to being issued with the NOICC letter dated 14 October 2016. In the circumstances, the Tribunal is satisfied the applicant is responsible for the breach of the visa condition.

20. Furthermore, the Tribunal notes the applicant said he married in Australia in February 2016, and that his wife (also from the Punjab in India) was in Australia on a Student visa (which she had obtained independent of the applicant). The Tribunal notes that the applicant ($500 to $600 per week), earns more money than his wife ($300-$400 per week), and that he had not studied since November 2015 (and the Tribunal accepts this is correct). That being said, it is possible that if the applicant’s visa is cancelled, he and his wife may be separated for some time, should the applicant have to return to India and his wife remain in Australia.

21. Next, the applicant had referred to the illness of his younger brother (also in Australia on a Student visa which is independent of the applicant). That brother had recovered from his illness around two months after he arrived in Australia (in mid-2015). The applicant did not say he (the applicant) was (ie) stressed or unwell due to his brother’s illness (though same is possible). However, he did not lodge any corroborating medical evidence to this effect, and neither did any stress he may have suffered prevent the applicant from working consistently while in Australia (based on his evidence at hearing). The Tribunal is therefore not satisfied the brother’s illness prevented the applicant from continuing to study in Australia.

22. Regarding the applicant’s past and present behaviour towards the Department, based on the evidence before me I am not satisfied the applicant has been uncooperative with either the Department or the Tribunal. Regarding whether there are persons in Australia whose visas would or may be cancelled if the applicant’s visa is cancelled, there is no evidence before me that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled.

23. Regarding whether Australia’s international obligations would or may be breached if the applicant’s visa is cancelled, there is no information before me that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. At hearing, the applicant had confirmed he could return to his home in the Punjab in India.

24. Based on all the evidence and findings herein, the Tribunal is satisfied it should exercise its discretion to cancel the visa in this case.

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

    DECISION

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

    Mr S Norman

    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.