Singh (Migration)

[2018] AATA 624

Singh (Migration) [2018] AATA 624 (5 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Guljinder Preet Singh

CASE NUMBER:  1616718

DIBP REFERENCE(S):  BCC2016/2442492

MEMBER:Antoinette Younes

DATE:5 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 March 2018 at 3:46pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion – Substantial period of time spent not enrolled – Lack of academic progress – Potential 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 22 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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 27 February 2018 to give evidence and present arguments. 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 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 26 June 2015.  The Tribunal noted that the decision record further indicates that the applicant was granted the student visa on the basis of his intention to study in approved vocational education level course of study, namely a package which included Certificate III in Commercial Cookery and a Diploma of Hospitality at the Australian Academy of Management and Science.  PRISMS’ records indicated that the education provider had reported the applicant for non-commencement of studies in relation to each of those enrolments.  The applicant agreed with this information and provided explanations and documents as discussed in relevant parts of this Decision.

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

11. 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

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.

13. 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

14. The applicant gave evidence that he is now 26 years old and he came to Australia in March 2014 on a subclass 573 visa but in July 2014, he was granted a subclass 572 visa.  In explaining the reasons for the visa change, he stated that he was influenced by friends who were undertaking cookery courses and he thought he would make a good cook. He gave evidence that in New Zealand he completed a Diploma of Business Level 5.  He lives in shared rented accommodation and his parents are public servants in India.  He stated that he has a younger sister in India who is studying dentistry.  He stated that only his mother knew that he had changed to a subclass 572.  He stated that upon finding out of the visa change, his father and grandfather were disappointed because he was expected to undertake a degree course in the food industry.

15. The Tribunal asked and the applicant confirmed that he is not currently enrolled in any courses.  He however provided copies of an Offer and Acceptance of Enrolment from Group Colleges Australia, dated 26 February 2018 “SUBJECT TO OBTAINING A VALID VISA AND CLEARING AAT” in the course of Bachelor of Business commencing on 7 May 2018 until 23 April 2021.   He stated that he had made attempts to enrol but he was unsuccessful because of the visa cancellation.  The representative made submissions that due to the introduction of the new student visa scheme in 2016, the applicant would have encountered challenges in obtaining enrolment. The Tribunal has given some weight to those submissions, however, the evidence before the Tribunal indicates that for a substantial period of time and prior to the visa cancellation, the applicant was not enrolled in a registered course, contrary to condition 8202.  This is a core condition in the student visa scheme; the main objective of the student visa is to study.  One day before the hearing, the applicant obtains an Offer and Acceptance of Enrolment, raising some doubts about his intentions.  The Tribunal gives this enrolment little weight given its timing but in any event, it does not overcome the Tribunal’s concerns about the significance of the breach and does not mean that the visa should not be cancelled.

16. 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. In submissions to the Tribunal, it was noted that it is relevant for the Tribunal to consider the applicant’s completion of study in New Zealand and India.  The applicant expressed his desire to remain in Australia to study.

17. The Tribunal accepts that the applicant came to Australia to study and that he successfully completed a course in New Zealand, however 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

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. The applicant has provided submissions relevant to both hardship and the circumstances that led to the breach.  In written submissions to the Tribunal, the representative outlined the applicant’s background and indicated that:

    a.The applicant is a genuine student who completed studies in India and New Zealand. He was accepted by the University of Western Sydney in a pathway program leading to a bachelor’s degree in business and commerce. The applicant decided to study commercial cookery in a package leading to a diploma of hospitality. Due to “some exceptional circumstances”, his family asked him to change to a bachelor’s degree with which he struggled and the education provider did not release him.

    b.The applicant comes from an educated, “prestigious” family in India. When he came to Australia, he was surprised to see the wide variety of courses available. He was influenced by his friends who were studying hospitality courses. The applicant has been responsible student and a law-abiding citizen. In October 2014, he had a long discussion with his family and although his parents supported his plans to change his field of study, his grandfather was shocked, upset and said that it would be shameful for the family’s reputation for the applicant to be undertaking a cookery course. The tension in the family grew and his grandfather stopped talking to him which was very depressing to the applicant. The grandmother passed away in November 2014 which was a tough time for the family. The applicant wanted to go to India when his grandmother passed away but his mother insisted that would not be right.

    c.His father who suffers from heart disease stopped talking to him. His mother asked him to talk to the college and changed his study to a degree. The applicant was stuck in a situation where he had no support from anyone. He talked to the college but they did not listen to him.

20. The applicant gave evidence that his father’s and grandfather’s responses to his change to the subclass 572 unsettled him and when his grandmother died in 2014, he felt shame and he did not go to India to attend the funeral.  He said he was confused and requested course release but the education provider refused.  The representative referred to the copies of the emails provided to the Tribunal as evidence of the applicant’s attempts.  The Tribunal notes that the documents provided to the Tribunal show that on 10 March 2015, 15 March 2015, and 5 May 2015 (x 2), the education provider (AAMS) sent to the applicant the same email requesting him to provide his Unique Student Number (USI).  A copy of the applicant’s response on Thursday the 19^th March 2015 indicates his advice to AAMS that he has paid the fees and that he would be attending classes on Monday. Other documents show that on 19 March 2015, there were several email exchanges between the applicant and AAMS relating to the cancellation of his CoE due to failure to maintain unsatisfactory attendance “despite receiving many warning letters”.  There was also an email of 29 November 2016 from AAMS relating to late assessments and the cost of late submission.  The Tribunal notes submissions that the applicant did not know the reason for the cancellation of the CoE but finds them unsupported by the evidence; AAMS clearly advised of the reasons.

21. The Tribunal accepts as plausible that his change to subclass 572 caused family difficulties, including shame.  The Tribunal has given this aspect some weight.

22. In relation to the claim that the education provider refused to issue a release, on the evidence, the Tribunal is not satisfied that the documents provided support a conclusion that the education provider had inappropriately refused to issue a release or that AAMS’ conduct means that the visa should not be cancelled.  The evidence provided by the applicant relate to AAMS’ requests from the applicant to provide details about the USI, unsatisfactory attendance and late submissions of assessments.

23. In written submissions, it was noted that the education provider started threatening the applicant with cancellation of the CoE which occurred in March 2015. It was claimed that the applicant did not understand the reasons for the cancellation and that in May 2015, he requested the release and transcript in order to undertake a bachelor degree program but this was denied. 

24. The applicant gave evidence that he was depressed and has been taking sleeping tablets since 2015 but not regularly.  When asked, he did not know the name of the medication.  The Tribunal referred to the Certificate provided by Dr Chandey from India referring to the prescription of medication including antidepressants.  The applicant said he takes sleeping tablets not antidepressants.  Asked how he obtains this medication, he said they are sent to him by his mother from India.  He provided a statement from his mother to support the claim that the applicant has sought advice from the family doctor in India.  The Tribunal asked the applicant if he has consulted a health professional in Australia and he said he saw a doctor in New Zealand for a skin condition but he has not consulted anyone in Australia as his friends have tried to help him. As raised in the course of the hearing, the Tribunal has concerns about this aspect; the Tribunal finds it difficult to accept that a professional doctor would be prescribing any medication without face-to-face consultation and provide medication to be sent overseas.  Even if the Tribunal were to accept that Dr Chandey had prescribed such medication, the Certificate provided is deficient; it is based on remote, not face-to-face assessments, opinions and clinical management of the applicant.  Accordingly, the Tribunal is not satisfied that any depression suffered by the applicant means that the visa should not be cancelled.

25. In submissions to the Tribunal, it was noted that if the applicant’s visa were to be cancelled, it would bring shame and humiliation to his parents in India. The cancellation would also bring about “a bad name” to the family in the Indian society. Going back to India would not be easy for him and he would be answerable to his parents and grandfather which would result in social isolation. The cancellation would impact his personal life as well as potential marriage. It was further submitted that a person returning to India when their visa has been cancelled faces lack of trust, difficulties in finding employment and is labelled “deported” in the local language. The applicant was a responsible international student. His main aim is to study in Australia and he has not worked. The Tribunal is of the view that the evidence does not entirely support the submissions that the applicant is a responsible international student; he was not enrolled in a registered course for a substantial period of time.  The Tribunal has given weight to the submissions that the cancellations would upset the father who has heart condition.  The Tribunal has also given some weight to the submissions about shame, trust, employment, marriage, starting a family and labelling, but on the evidence, the Tribunal is not satisfied that any of those possible consequences amount to a degree of hardship to mean that the visa should not be cancelled.

26. 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.

27. 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.

28. 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.  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.

29. In the delegate’s decision record, it is noted that:

    a.Prior to issuing the notice of intention to consider cancellation, the Department had made two unsuccessful attempts to contact the applicant both by telephone and email. He was requested to provide his current contact details so that the notice of intention to consider cancellation is sent to the appropriate address.

    b.The applicant did not contact the Department or made any other attempt to provide his current contact details until after he received the notice of intention to consider cancellation when he provided an email but not details about his residential address.

    c.According to Australia Post tracking, the letter containing the notice of intention to consider cancellation was returned to the sender on 20 September 2016, marked “unclaimed”.

    d.The applicant responded to the notice of intention to consider cancellation by saying “Hii, is it my visa cancel?”.  He did not provide any submissions.

30. In submissions to the Tribunal, the applicant argued that he received the notice of intention to consider cancellation on 30 August 2016 and he responded by asking if the visa had been cancelled but the Department did not reply and instead sent him the decision which shocked him.

31. In oral evidence, the applicant stated that at the relevant time, he did not know what was happening, he had moved and did not advise the Department of his residential address.  He could not recall if he updated the education provider.  He said he does not normally pick up a call from an unknown number.

32. The Tribunal has considered the applicant’s explanations but finds the unpersuasive. The Tribunal is of the view that the applicant response to the notice of intention to consider cancellation namely “Hii, is it my visa cancel?” did not address any of the issues raised in the Notice.  The Tribunal has given this aspect some weight in deciding that the visa should be cancelled. Moreover and as discussed in the course of the hearing, there is nothing to suggest that the Notice is invalid as a result of the manner it was sent. 

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

33. 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

34. 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

1. 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

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

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

   DECISION

4. 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.