Singh (Migration)

[2018] AATA 1159

Singh (Migration) [2018] AATA 1159 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurmaan Singh

CASE NUMBER:  1621922

DIBP REFERENCE(S):  BCC2016/3439768

MEMBER:Christine Kannis

DATE:21 February 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 21 February 2018 at 12:00 pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not completed Higher Education sector course – Enrolment history – Multiple course enrolments – No academic progress – Cancellation of course enrolments

LEGISLATION
Migration Act 1958, ss 116, 119, 362B
Migration Regulations 1994, r 2.43, Schedule 2

CASES
MIMA v Hou [2002] FCA 574
Shrestha v MIMA (2001) ALD 669

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 December 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 20 December 2016 the applicant requested a review of the cancellation decision by this Tribunal. On 22 December 2016 the Registry Officer contacted the applicant’s representative and requested that the Decision Record be provided. On 10 January 2017 the applicant’s representative provided a copy of the Decision Record to the Tribunal for the purposes of the review.

4. On 15 January 2018 the Tribunal sent (by email) the applicant’s representative an Invitation to Attend a Hearing letter which advised that a hearing had been listed for 21 February 2018 at 9.00 am. The letter advised the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. He was also advised that a change of date for the hearing would only be made for a very good reason. The letter advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

5. No response to the Invitation to Attend a Hearing was received.

6. On 14 February 2018 the Tribunal’s electronic record  noted:

   SMS hearing reminder sent to the PRA's mobile number [on] 14/02/2018 11:03:49 AM.
   The message sent was:
   Reminder - Your AAT hearing is on 21/02/18. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.

7. On 20 February 2018 the Tribunal’s electronic record  noted:

   SMS hearing reminder sent to the PRA's mobile number [on] 20/02/2018 11:00:23

   The message sent was:
   Reminder - Your AAT hearing is on 21/02/18. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.

8. The applicant did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend. The applicant’s representative did not contact the Tribunal prior to the scheduled hearing to advise of the applicant’s inability to attend.

9. The Tribunal considers the applicant has been given the opportunity to attend a hearing and is satisfied that he was advised of the scheduled hearing on 21 February 2018 at 9.00 am.

10. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

11. 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

    Relevant law

12. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(fa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

13. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

14. The proper construction of s.116(1)(fa)(i) was discussed in Shrestha v MIMA (2001) ALD 669, in which the Court held that in introducing s.116(1)(fa)(i), it was not Parliament’s intention that a genuine student who had failed in attendance and/or academic performance due to ‘innocent temporary mishap’ or ‘transient misadventure’ should face cancellation (per Madgwick J at [19]). In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

15. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case.

16. On 2 May 2014 the applicant was granted a Subclass 573 visa and he arrived in Australia on 10 May 2014.

17. The applicant’s academic history was set out in the Decision Record and showed the following:

    ·The applicant’s study plan was to study a Certificate IV English for Academic Purposes, a Certificate IV in Business, a Diploma of Business and a Bachelor of Business.

    ·The applicant finished the Certificate IV in English for Academic Purposes course on 20 June 2014.

    ·The applicant’s enrolment in the Certificate IV in Business and Diploma of Business courses was cancelled on 25 June 2014 for non-commencement of studies. As a consequence his enrolment in the Bachelor of Business course was cancelled on 27 June 2014.

    ·On 10 July 2014 the applicant enrolled in a Diploma of Business and an Advanced Diploma of Business at the Technical College of Western Australia.

    ·On 29 July 2014 the applicant enrolled in an Associate Degree of Business course at TAFE International Western Australia.

    ·The applicant’s enrolment in the Diploma of Business was cancelled by the Technical College of Western Australia on 30 June 2015 for unsatisfactory course progress. As a consequence, his enrolment in the Advanced Diploma of Business course was cancelled on 23 July 2015 for non-commencement of studies.

    ·On 29 August 2015 the applicant enrolled in a Diploma of Business course at Stanley College. This enrolment was cancelled on 4 September 2015 for non-commencement of studies.

    ·On 9 September 2015 the applicant enrolled in a Diploma of Business course at Stanley College.

    ·On 3 November 2015 Stanley College reported to the Department that the applicant had been granted a deferral to undergo medical treatment in India from 30 November 2015 to 4 December 2015. The applicant provided a document from Bagla Eye Hospital dated 25 October 2015 which indicated that the applicant was advised to attend for eye refractive surgery on 5 November 2015. A document from WA Eye Specialists dated 27 August 2015 was also provided.

    ·Stanley College sent the applicant several warning letters between 9 February 2016 and 15 August 2016 in relation to overdue fees, non-participation and unsatisfactory course progress. The unsatisfactory course progress in the terms from September 2015 to April 2016 and from April 2016 to July 2016 noted that the applicant had not attended/not submitted assessments for more than 50% of the units studied.

    ·On 30 August 2016 Stanley College issued the applicant with a Notice of Intention to Cancel on the basis of Erratic Course Progress.

    ·On 17 June 2016 the applicant’s enrolment in the Associate Degree of Business was cancelled by TAFE International Western Australia for non-commencement of studies.

    ·On 30 October 2016 the applicant enrolled in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management with the New England School of English Pty Ltd. His enrolment in these courses was cancelled on 14 December 2016.

18. On 5 December 2016 the Department issued the applicant with a NOICC because it was considered that he was not and was not likely to be a genuine student.

19. No response was received to the NOICC.

20. As the applicant elected not to attend the hearing or to provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s file.

21. The applicant has not maintained a study plan or achieved academic progression during his stay in Australia.

22. The applicant has not completed a Higher Education Sector course for the purposes of a Subclass 573 visa and has not been enrolled in a Higher Education Sector course since 17 June 2016. The applicant was enrolled in a Vocational Education and Training Sector course at the date of cancellation of his visa.

23. The applicant’s enrolment history demonstrates that since his arrival in Australia in 2014 he has continually changed his enrolment in registered courses and his enrolments have been cancelled for different reasons including non-commencement of studies and transferring to a course at another provider. The PRISMS indicates that the applicant has been enrolled in several courses since he arrived in Australia and that apart from a Certificate IV English for Academic Purposes course finished on 20 June 2014, all of his enrolments have been cancelled.  The Tribunal considers the fact that the applicant has not completed any other courses is strong evidence that he is not a genuine student. 

24. Having regard to the applicant’s enrolment history, the Tribunal finds that the applicant is not a genuine student.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116 (1)(fa)(i)) exists. As that ground does not require mandatory cancellation under s.116 (3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

26. 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, in considering whether the visa should be cancelled the Tribunal has had regard government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

27. The purpose of the student visa is to enable the visa holder to undertake study in Australia in at a particular level. The applicant was granted a student visa Subclass 573 to undertake a course of study and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily.

28. At the date of cancellation the applicant was no longer enrolled in a registered course in the sector which was the basis of his student visa. The applicant’s visa was not cancelled under the legislative provision relating to non-enrolment however the Tribunal does give some weight to the fact that he completed only one curse and has not been enrolled in a higher education CRICOS registered course since 17 June 2016.

29. The Tribunal finds that at the date of cancellation of his visa the applicant was not fulfilling the purpose of his travel to and stay in Australia because he was not enrolled in and undertaking studies in a Higher Education Sector course.

30. There was no evidence to suggest that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control.  

31. Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result by cancellation of his visa.

32. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

33. There is nothing to suggest that there are persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.