SINGH (Migration)

[2018] AATA 629

SINGH (Migration) [2018] AATA 629 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUNMEET SINGH

CASE NUMBER:  1617150

DIBP REFERENCE(S):  BCC2016/2942700

MEMBER:Antoinette Younes

DATE:6 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2018 at 1:31pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion – Significant period of time spent not enrolled – Insufficient reasons to explain lack of enrolment – Degree of hardship does not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 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. 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 1 March 2018 to give evidence and present arguments.

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 the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review.  Specifically, the Tribunal noted 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 4 November 2015.  The applicant agreed with this information and he provided explanations as discussed in relevant parts of the Decision.

10. The applicant provided evidence, namely Confirmation of Enrolments (CoE) showing that since January 2017, he has been enrolled in a Diploma of Business, an Advanced Diploma of Business and a Bachelor of Business degree, to be completed in October 2020. He provided evidence that for the Diploma of Business course, he has completed five units and is waiting to complete another three.

11. The Tribunal accepts the evidence that since January 2017, the applicant has been enrolled and continues to be enrolled. However, the Tribunal finds that since 4 November 2015 until January 2017, the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202(2).

12. As the applicant has failed to comply 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

13. 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.

14. 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

15. The applicant has claimed that the purpose of his travels and stay in Australia was to study and he was granted the visa for that purpose.

16. The Tribunal accepts that the applicant came to Australia to study, however on the evidence, the Tribunal is not satisfied that the applicant has a need to remain in Australia, or that his purpose to travel to Australia means that the visa should not be cancelled.

17. The Tribunal has given regard and some weight to the applicant’s current CoEs but given the fact that he was not enrolled for a substantial period of time in a registered course, the Tribunal is not satisfied that the enrolments mean 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

18. Although there appears to be evidence of non-compliance with other visa conditions, 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

19. In response to the notice of intention to consider cancellation, the applicant responded by essentially referring to an accident relating to his father in India. He provided photographs and medical notes in relation to this incident.

20. In the course of the hearing, he gave evidence that his father was involved in a car accident in October 2015 which unsettled the family. He discussed that he is the only son and it would be shameful to return to India without a degree. He explained to the Tribunal that when he came to Australia, there were English difficulties and he also faced problems with employment. He gave an example of a former employer who paid him very little money for his work. He pleaded with the Tribunal to exercise its discretion favourably.

21. The Tribunal has sympathy towards the applicant who came across as being a pleasant young person.  The Tribunal takes the opportunity to acknowledge that it is natural that the applicant’s father’s incident would have had some impact on the applicant. The Tribunal has given this aspect some weight. In relation to the issue of shame, the Tribunal is of the view that although this is plausible, it does not mean that the visa should not be cancelled.

22. The Tribunal accepts as plausible that if the visa were to be cancelled, there could be a degree of personal disappointment to the applicant in that he would be returning without qualifications from Australia. The Tribunal has given this aspect some weight.

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 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 visa was cancelled on the basis that the applicant had breached condition 8202.  The Tribunal considers the breach of condition 8202 to be significant.  The applicant was granted a student visa to study and that is the primary purpose of the study.  Condition 8202 goes to the core of that purpose. 

26. As outlined above, the applicant explained the breach essentially on the basis of his father’s injury and the Tribunal has given this aspect some weight.

27. 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.

28. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this some weight in the applicant’s favour.

    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.