Singh (Migration)

[2018] AATA 793

Singh (Migration) [2018] AATA 793 (22 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mandeep Singh

CASE NUMBER:  1615977

DIBP REFERENCE(S):  BCC2016/2438677

MEMBER:Antoinette Younes

DATE:22 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 March 2018 at 4:41pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Period of non-enrolment – Mother’s illness – Family financial hardship – Inability to pay course fees

LEGISLATION
Migration Act 1958, ss 116, 359AA
Migration Regulations 1994, Schedule 8 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 September 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 attached to his visa. 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 15 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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. In accordance with s.359AA, the Tribunal advised the applicant that information available in the Provider Registration and International Student Management System (PRISMS) indicates that as of the date of the delegate’s decision record, the applicant had not been enrolled in a registered course of study since June 2015. The Tribunal indicated that the information is relevant because it indicates that the applicant has breached condition 8202. In response, the applicant pointed out aspects of PRISMS’ records which he considered to be incorrect, such as the cancellations of a number of the CoEs and the completion of the Certificate IV in Business. He stated that he has not completed any such course. He confirmed that during his time in Australia, he has not completed any courses. He agreed that since June 2015 until his current enrolment in the Diploma of Leadership and Management course, he was not enrolled in a registered course. He provided explanations as discussed below.

10. On the evidence before the Tribunal, although the applicant is currently enrolled in courses, from June 2015 until his current enrolment, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2). As the applicant has not complied with the visa condition, the ground for cancellation in s.116(1)(b) arises. It follows that the visa may be cancelled.

    Consideration of the discretion to cancel the visa

11. 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.

12. 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).

    The purpose of the applicant’s travel to and stay in Australia - whether the applicant has a compelling need to travel to or remain in Australia

13. The applicant gave evidence that he came to Australia in March 2014 to undertake a Bachelor’s degree in Hospitality and Management. He claimed that the purpose of his travels and stay in Australia was to study and he was granted the visa for that purpose. In submissions to the Tribunal, it was noted that the applicant is a genuine student who travelled to Australia aspiring to complete a bachelor’s degree which would benefit him significantly in India.

14. The Tribunal accepts that the applicant came to Australia to study.  The applicant has provided evidence and the Tribunal accepts that he is currently studying a Diploma of Leadership and Management course, that he has received Competent results in six subjects and that he is enrolled from 6 August 2018 to undertake an Advanced Diploma of Leadership and Management. The Tribunal has taken into consideration that the applicant has also received a Letter of Offer dated 28 February 2018 to undertake a Bachelor of Applied Finance and Accounting.  The Tribunal observes that his enrolments in the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management courses occurred subsequent to the cancellation of the visa.  Although the timing could suggest a number of things including positive steps taken by the applicant, the fact is for a substantial period of time, he was not enrolled in a registered course, contrary to a condition of his visa.

15. On the evidence, the Tribunal is not satisfied that the applicant has a need to remain in Australia, or that his initial purpose to travel to Australia means that the visa should not be cancelled.

    The extent of compliance with visa conditions - whether the applicant has otherwise complied with visa conditions now and on previous occasions

16. In submissions to the Tribunal, it was noted that the applicant has complied with all other conditions which demonstrates substantial compliance.  It was submitted that the applicant has maintained his private health insurance at all times, obeyed Australian laws and complied with the limited work provisions. The Tribunal has considered those submissions but is of the view that complying with visa conditions and the law are legitimate expectations that warrant some consideration but on balance, substantial compliance does not overcome non-compliance with a visa condition.  The applicant’s visa was cancelled on the basis of non-compliance with condition 8202 which the Tribunal considers to be significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members - whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

17. The applicant has provided submissions relevant to both hardship and the circumstances that led to the breach.  In a Statutory Declaration of 22 February 2018, the applicant indicated that :

    a.He came to Australia on 19 March 2014 to undertake studies in hospitality and management and within six months he changed to a Diploma of Business. He went to Perth and lived with a man from his hometown. The man advised him that as the applicant’s mother was ill, the applicant should change to a less expensive course so the applicant ceased enrolment. The applicant gave the man money sent by the applicant’s parents so that he could help him but the man took the money and left Australia within a month.

    b.He stopped studying due to hardship faced by the family as a result of his mother’s illness (medical evidence provided). He had no job, no money or food. He ate once every three days and he became homeless. Although he worked in a restaurant, he was not paid for that work.  He moved to Sydney but he had no money to pay rent or eat.

    c.The year 2015 was a very difficult year for him. A woman called Sherryn (supporting statement provided) saw him sleeping in his car and assisted him. His mother has recovered and she is now in good health.

    d.He is currently enrolled in courses and he has always wanted to pursue a career in business. He will develop skills to assist him in gaining a managerial or leadership role. If granted the visa, he would be thankful and he would promise to comply with the conditions.

18. The applicant gave evidence that his mother’s illness led to family financial hardship which meant that he was unable to pay for course fees.  The Tribunal discussed with the applicant the medical and financial evidence he provided in support of those claims.  As raised with the applicant, the medical evidence does not provide a coherent picture of the nature or extent of his mother’s illness.  The financial evidence provided does not show a link between the family’s financial position at the relevant time and how that impacted the applicant’s ability to pay course fees.

19. In light of those concerns and on the evidence, although the Tribunal accepts that the applicant’s mother was ill, the Tribunal is not satisfied that this led to the claimed financial hardship. The Tribunal has considered the evidence of the witness and the statement from Ms Sherryn Reid who described how she saw the applicant sleeping in his car.  The Tribunal has given weight to the statement as well as the applicant’s claim that a former employer did not pay him.  The Tribunal has empathy for the applicant who is a young person.  The fact remains that when applying for the visa, the applicant had to demonstrate that there were sufficient funds to cover his tuition fees and other costs.  The Tribunal and for the stated reasons is not satisfied that the family’s financial position changed as claimed or for the claimed reasons. 

20. The applicant gave evidence that a person known to him since childhood took from him $4000-$5000 intended for course fees.  The Tribunal asked the applicant a number of questions about the circumstances and the applicant’s evidence concerned the Tribunal.  He stated that his parents sent the money via Western Union.  He stated that he took the money out in cash and gave it to the man.  He confirmed that he had no corroborative evidence, such as Western Union transfer documents. The witness gave inconsistent evidence about the name of the person alleged to have taken the money.  The Tribunal is not persuaded by the applicant’s explanation that the inconsistency was due to anxiety.  On the evidence and in light of those concerns, the Tribunal does not accept that a man took money from the applicant and consequently, the Tribunal does not give this claim any weight.  The Tribunal is satisfied on the evidence that the applicant has fabricated this claim.

21. In written submissions to the Tribunal, it was noted that cancellation of the visa would cause significant hardship to both the applicant and his family. His mother would feel a great degree of guilt and she would conclude that her ongoing medical expenses had caused the applicant to lose the opportunity to obtain qualifications from Australia which are highly regarded. It was submitted that the applicant was unable to continue with his studies due to circumstances beyond his control and he has invested time and money into his studies. It was acknowledged that the applicant has not maintained enrolment for a significant period of time but this was due to the financial hardship that the family had experienced due to the mother’s ongoing medical expenses. The financial hardship left the applicant homeless.  The Tribunal has carefully considered those submissions and gives some weight to the submissions relating to the mother’s feelings; it is natural that the family would be concerned and disappointed about the cancellation.  However, as discussed earlier, the Tribunal is not satisfied that the mother’s illness led to the claimed financial hardship, or that this was beyond the applicant’s control. 

22. In relation to the submissions that there would also be significant hardship caused by the applicant’s inability to complete his course, the Tribunal has given this some weight but is of the view that there is not a degree of hardship on this basis (or any other basis) to mean that the visa should not be cancelled.

23. The Tribunal is mindful that the applicant could become unlawful and may be subject to detention but these are intended consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

24. Looking at the circumstances individually and cumulatively, the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The Circumstances in which ground of cancellation arose - whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence.

25. The applicant has breached condition 8202.  As discussed earlier, the applicant raised a number of issues which he believed to be relevant to the breach.  The Tribunal has dealt with those claimed circumstances. 

26. The Tribunal has carefully considered the applicant’s circumstances and on the evidence, the Tribunal is not satisfied that there are circumstances that mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department - whether the applicant has been truthful and cooperative in their dealings with the department.

27. The applicant did not respond to the notice of intention to consider cancellation. In submissions, it was argued that the applicant has cooperated with the Department at all times. It was noted that the notice of intention was sent to a previous residential address and was not received by the applicant on time. The applicant is cooperating with both the Department and the Tribunal.

28. Although the Tribunal acknowledges that there is an obligation on a visa holder to keep the Department informed of their current details, given his subsequent conduct, the Tribunal has decided not to use this aspect in an adverse manner to the applicant.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140

29. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether there are mandatory legal consequences to a cancellation decision

30. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are intended consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

31. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. 

    Any other relevant matters raised by the applicant

32. There are no other matters requiring consideration by the Tribunal.

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

    DECISION

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

    Antoinette Younes

    
    Senior 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.