SINGH (Migration)

[2018] AATA 791

SINGH (Migration) [2018] AATA 791 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Barinder SINGH

CASE NUMBER:  1614472

DIBP REFERENCE(S):  BCC2016/2473157

MEMBER:Tigiilagi Eteuati

DATE:20 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 20 February 2018 at 6:33pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Did not re-enrol in a registered course – No intention of perusing studies in Australia – Applied for a subclass 457 visa as a dependent of his wife – Hardship – Different cultural and linguistic background to wife – Struggle to resettle in his or wife’s home country

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 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 breached the condition of his visa to remain enrolled in a registered course. 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 7 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 the applicant was not enrolled in a registered course.

8. The delegate found that the applicant had not been enrolled in a registered course since 27 March 2016. This was admitted by the applicant and accords with records held by the Department. 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

9. 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.

10. 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).

11. When the applicant arrived in Australia in July 2013 he was enrolled in a Diploma of Business to be followed by a Bachelor of Business degree. The applicant said that he found the diploma course too difficult and that he was failing the course. He said that he stopped attending the course and his enrolment in the Bachelor of Business course was consequently cancelled on 23 April 2014. The applicant was in breach of condition 8516 from this date.

12. In May 2014 the applicant enrolled at Queensford College in a Certificate IV in Business to be followed by a Diploma of Business. In June 2014 he also enrolled in a Diploma of Management to follow his completion of the Diploma of Business. However, the Certificate IV in Business concluded in December 2014 and the applicant said that he failed the course. It appears that he did not begin any of the Diploma courses as he had failed the Certificate IV course in 2014. The applicant said that he continued to try to pass the Certificate IV course in 2015 and 2016 but could not pass the course. The Tribunal does not accept that the applicant continued to study the Certificate IV course after 2014 as the course concluded in December 2014 and the applicant was not subsequently enrolled in the course after it concluded. The Tribunal finds that the applicant ceased all study in 2014 and that he has not studied since.

13. Thus the Tribunal places very little weight on the claims that the applicant made to the Department that he did not re-enrol in a course in 2016 because of stress and medical problems caused by his parents disapproval of his wife and the stresses of study and work. As mentioned above, the Tribunal has found that the applicant abandoned all study in 2014.

14. The applicant gave evidence that he had no desire to continue studying and that he wished to apply for a subclass 457 visa as a dependent of his wife who had applied for a subclass 457 visa. The applicant said that he had been advised that if he was successful before the Tribunal he would be able to apply for a 457 visa as a dependent offshore.

15. The applicant’s wife gave evidence that she had previously held a student visa which had expired. She said that she had applied for a subclass 457 temporary visa and that that application was yet to be decided. She indicated that she held a bridging visa while awaiting the outcome of her subclass 457 visa application. The applicant’s wife indicated that the applicant had originally applied with her as a dependent on her subclass 457 visa application. The applicant explained that he had withdrawn his application as he was told that his wife would be unsuccessful in her application if the applicant maintained his application as her dependent.

16. Both the applicant and his wife said that they would suffer hardship if the decision to cancel the applicant’s visa was affirmed. The applicant’s wife, who is a citizen of Vietnam, claimed that if the decision was affirmed she would abandon her application for a subclass 457 visa and leave Australia with the applicant. She said that the couple would either have to live in India, the applicant’s home nation, or Vietnam. She said that in either case the couple would face difficulties. One such difficulty was that she did not speak Punjabi and the applicant did not speak Vietnamese. In addition, it would be difficult for them to adjust to the culture and society of whichever country they chose to settle in.

17. The Tribunal accepts that the couple would face difficulty if the applicant’s visa remained cancelled. It would mean that the applicant and his wife would leave Australia and have to live elsewhere. The Tribunal accepts that because of their different cultural and linguistic backgrounds that they would struggle to settle in either India or Vietnam. The Tribunal considers that this consideration weighs in favour of the applicant. The Tribunal has also considered that as the applicant’s visa is cancelled he will be prevented from applying for another visa for three years. However, the weight to be given to the consideration of hardship is mitigated by the following considerations. First, there is no guarantee that the applicant’s wife will be successful in her application for a subclass 457 visa. Even if she is granted the visa, there is no guarantee that the applicant would be granted a subclass 457 as a dependent, especially given that he has breached the conditions of the last substantive visa he held. In addition, even if it were certain that the couple would be granted 457 visas, a subclass 457 visa is only a temporary visa and they could only expect to remain in Australia temporarily. In other words, even if the decision was set aside and the applicant and his wife were granted visas, they would have to leave Australia eventually as they would only hold temporary visas. In this sense, setting aside the cancellation decision would only delay the hardship that the couple will face once they have to leave Australia. The couple must have known that they were only permitted to live in Australia temporarily when they decided to marry and must have been aware that at some point they would face potential difficulties when they had to settle in India or Vietnam. They decided to marry nonetheless and the Tribunal accepts their evidence that they married despite the potential difficulties they would face because they loved each other.

18. The Tribunal considers that the delegate made the correct decision in cancelling the applicant’s visa and the Tribunal considers that this remains the correct decision. The applicant did not comply with conditions 8516 or 8202 of his visa and admitted that he has no intention of pursuing studies in Australia. His visa was granted in order from him to study courses leading to a bachelor degree and he abandoned the bachelor course and all other study in 2014. In these circumstances, the Tribunal has decided that although the applicant and his wife will suffer a degree of hardship if the visa remains cancelled, that the applicant’s failure to comply with the conditions of his visa and the fact that he has not studied since 2014 heavily outweigh all considerations weighing against cancellation.

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

    Tigiilagi Eteuati
    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.