Singh (Migration)

[2018] AATA 76

Singh (Migration) [2018] AATA 76 (12 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parmjeet Singh

CASE NUMBER:  1702971

DIBP REFERENCE(S):  BCC2016/4297052

MEMBER:Susan Trotter

DATE:12 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 January 2018 at 3:43pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – No longer enrolled in a higher education course – Wife’s difficulties – Improvement of English skills – Arrangement for further studies

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 14 February 2017 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 applicant was granted a Subclass 573 visa on 30 January 2014 with a cease date of 15 March 2017.

3. On 17 January 2017, a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the applicant by the Department of Immigration and Border Patrol. The applicant responded to the NOICC on 31 January 2017 and 1 February 2017 agreeing that there were grounds for cancellation of the visa on the basis that he had not been enrolled in a registered course of study since 9 July 2016 and requesting that his circumstances, as particularised, been taken into account not to cancel the visa. On 14 February 2017, the delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course (condition 8202(2)(a)) and that the grounds for cancelling the visa outweighed the grounds for not cancelled.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 21 February 2017.

5. The applicant appeared before the Tribunal on 16 November 2017 to give evidence and present arguments.

6. The Tribunal also heard evidence from the applicant’s spouse, Ms Gurpreet Kaur, in person.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   ISSUES

8. 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. Relevantly, to this case, these include the ground set out in s.116(b) which applies if a visa holder has not complied with a condition of the visa.

9. In this instance condition 8202 attached to the applicant’s visa.

10. Condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), 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).

11. 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.

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) ‘General visa cancellation powers’ including:

    (a)  The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;

    (b)  The extent of compliance with visa conditions;

    (c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

    (d)  Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

    (e)  Past and present conduct of the visa holder towards the department;

    (f)    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention;

    (g)  Whether there would be consequential cancellations under s.140;

    (h)  Whether any international obligations would be breached as a result of the cancellation; and

    (i)    Any other relevant matters.

13. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist? And, if so,

    (b)  Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

    CONSIDERATION

14. The applicant’s evidence at hearing (which was supported by his wife’s evidence and corroborated, where relevant, by documentary evidence before the Tribunal) included as followed:

    (a)  He first arrived in Australia in February 2014. He made arrangements to study in Australia prior to arriving. He and his mother arranged the finances and tickets for him to come to Australia. They arranged where he would live and where and what he would study. He enrolled in a Certificate IV in Business (at Logan TAFE), a Diploma of Business (at Logan TAFE) and a Bachelor of Business (at Griffith University) to be completed in turn as part of a package. When he came to Australia, he found Australian education very different and more advanced. He commenced the Certificate IV on 2 February 2014 and was expecting to complete that in six months, complete the Diploma in six months and then complete the Bachelor in two years, taking three years all together. He changed education institutions for the Diploma to the Skills Institute after he completed the Certificate IV. After completion of all three courses he was then intending to either apply for a Masters of Business in Australia or to go back to India.

    (b)  Prior to coming to Australia he completed 12 years of schooling and had work experience with a chartered accountant and computer/ data entry experience. He was completing Year 10 at school when his father passed away in 2007. He was then working full-time at the family furniture showroom and studying. After his father died he could not get any support from anywhere and the family business (the furniture showroom) shut down after two years. He has an older sister and did have a younger brother but he has passed away.

    (c)  He wants to go back to India and reopen his father’s business. The family owns two plots of land in India. He is going to sell one and keep one to run the business. At present the furniture showroom is being rented to someone else. They are running it as an agricultural store but his goal is to reopen it as a furniture showroom.

    (d)  He finished the Certificate IV on 24 June 2014. Immediately afterwards he enrolled in a commercial cookery course at the Australian Institute Technology and Management instead of doing the Diploma of Business. However the college then shut down. He was told by TAFE at this time that if he left TAFE, the enrolment at Griffith University would automatically be cancelled as well but he was not sure if the enrolment was cancelled or not. He went to the university campus to talk to them but they did not tell him anything. From July/August 2014 he was not enrolled in the Diploma or Bachelor course any more but he was not sure of the terms and conditions of the visa at that time. His migration agent had told him that he had a student visa. When he received a copy of the visa it just said 573. He did not understand that it was a Higher Education Visa. He was not sure if the study in commercial cookery came under the visa. If he sought advice from anyone, they started asking for money and that was difficult for him because his family were facing financial troubles back home.

    (e)  By the time the college was closing, he had done five or six subjects in the commercial cookery course. He stopped studying this course in February/March 2015.

    (f)    He then enrolled in a Diploma of Business at the Australian Institute of Technology and Management. He started studying and when he had done four subjects they started asking him for the balance fees for the commercial cookery course. He told them he had already paid but they said he had not. He transferred the Diploma of Business to the Skills Institute Australia in December 2015 or thereabouts and finished it in July 2016. He then looked at doing a Bachelor of Business degree at James Cook University but they said he had to do an English course first or get a 6 result in his English exam.

    (g)  From July 2016 he was supporting his now wife. He also did an English course in November 2016 and it took him one and a half months to get a 6 result. He and his now wife were married on 9 January 2017 and he was then intending to enrol in a Bachelor of Business at James Cook University in March 2017 as he had achieved the necessary 6 for English. However, he then received the NOICC from the Department so could not enrol. He tried to talk to a couple of migration agents and he was told he could not study any more.

    (h)  If the cancellation of the visa is set aside, he plans to study again. He has already enrolled in an Advanced Diploma Business at the Skills Institute Australia. If he completes the Advanced Diploma, he will then only need to complete another ten subjects for his Bachelor degree.

    (i)    In the meantime, he has also applied as a member of the family unit of his wife who currently holds a 573 visa. She has applied for a 500 visa now. She is studying a Bachelor of Business at the Holmes Institution. She is due to finish her Bachelor of Business in November 2018.

    (j)    He did not commence his Bachelor of Business immediately after finishing the Diploma of Business because he was emotionally supporting his now wife. In February 2016 they went to see a lawyer about her getting a divorce. She had been in an arranged marriage and her ex-husband was abusive to her during the small amount of time they spent together. She was very stressed and needed his support. Her ex-husband was initially agreeable to getting a divorce but in July 2016 he started objecting. Prior to this he had intended to immediately enrol in a Bachelor of Business at James Cook University. However by that time his wife was having all the stress with her divorce. His whole focus was on her. She was crying every day because her ex-husband’s family was harassing her family in India and causing problems for her father on his farm. His wife had to take a break from studying for two to three months and he had to support her and then help her when she got back to studying. When his wife finally obtained the divorce he went to James Cook University straight away, but he then found out he needed a 6 in English and he only had 5.5 and he then had to do further English studies. He has now achieved a 6 and has been told by James Cook University that he will be accepted if he has a visa. His mother and wife have agreed to continually assist with his support throughout his further studies.

    (k)   If the visa cancellation is set aside he would have to go back to India and leave his wife here. Without education he cannot survive. There is a lot of competition in India. He needs to complete the Bachelor of Business. Other people have MBAs and Masters. He would not be able to challenge them in business. Leaving his wife in Australia would cause financial and emotional hardship to her.

    (l)    He is confident he will be able to successfully complete the Bachelor of Business including because of the subjects he has already done.

    Issue 1 – Does the ground for cancellation exist?

15. As noted in the delegate’s decision, which was provided to the Tribunal by the applicant when he applied to the Tribunal, the applicant was notified of the intention to consider cancellation of the visa on 17 January 2017. It was noted in the NOICC that it had come to the Department’s attention that the applicant had not complied with Condition 8202 imposed on his visa, which required him to be enrolled in a registered course.

16. The delegate’s decision continues on to note that information available to the Department in the Provider Registration and International Student Management Systems (PRISMS) indicates that the applicant had not been enrolled in a registered course of study since 9 July 2016 and therefore it appeared that the applicant did not meet the requirements of condition 8202(2)(a).

17. PRISMS is also accessible by the Tribunal and shows that the applicant was no longer enrolled in or subject to a current offer of enrolment in a principal course relevant to a higher education sector visa after his enrolment was cancelled on 9 July 2016.

18. The Tribunal is satisfied that the applicant was not in a registered course from 9 July 2016, in breach of condition 8202(2)(a).

19. It follows that the Tribunal finds that there is a ground for cancelling the applicant’s visa under s.116(1)(b) of the Act. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Issue 2 - Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

20. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to the matters identified in PAM3, ‘General visa cancellation powers’ as referred to earlier in these Reasons.

21. The applicant was granted this visa to undertake higher education studies in Australia, thus his purpose for travel and stay in Australia.

22. The evidence before the Tribunal is that the applicant is no longer enrolled in a higher education course and has not been since 9 July 2016, a period of just over six months as at the date of the NOICC. However, there is no evidence that the applicant has breached other conditions of his visa, and there is evidence before the Tribunal as to his continuing contact with educational providers, his application to studies to increase his English skills, his recent enrolment in an Advanced Diploma of Business with the Skills Institute Australia (albeit a Vocational Education course rather than a Higher Education course but with a view to being given credit from this course towards a Bachelor of Business) all of which matters support the applicant’s intention to, and ability to, continue studying at a higher education level as originally planned.

23. Taken in the context of the original purpose of his presence in Australia being to undertake higher education studies, the Tribunal considers the fact that the applicant was no longer enrolled in a registered course of study between 9 July 2016 and the NOICC to weigh in favour of the visa being cancelled. However, the Tribunal puts some weight on the circumstances in which the applicant came to be unenrolled being related to his efforts to increase his English skills and the support he was providing to his now wife throughout a stressful divorce process. Further, the Tribunal is satisfied that the applicant has made subsequent efforts to again be enrolled in a registered course, and that he was successful in being accepted for an Advanced Diploma of Business intended to start in November/ December 2017.

24. The Tribunal has considered the circumstances in which the breach occurred in this case. The Tribunal accepts that the transition to studies in Australia can be difficult for international students. Despite that, the applicant has completed the first two courses, a Certificate IV and a Diploma in Business, as a pathway to the Bachelor of Business he has always intended to complete. The Tribunal puts significant weight on the fact that these courses were completed, albeit not as originally intended (in terms of time frames and the institutions at which they were completed).

25. Having regard to all of these matters, the Tribunal finds that the circumstances of the breach in this case do not weigh towards the visa being cancelled.

26. The Tribunal also considered the degree of hardship that may be caused to the applicant and any family members. The Tribunal accepts that the applicant’s family has invested a substantial amount of money in his studies in Australia and that some reliance is being placed upon him to complete his studies and to then return to India to re-open the family business. Further, the Tribunal is satisfied that the applicant’s wife will likely experience financial and emotional hardship if the visa applicant’s visa remains cancelled. The Tribunal places some weight on these matters in the applicant’s favour.

27. The Tribunal also considered the applicant’s past and present conduct towards the department. Notably, the applicant promptly responded to the NOICC and there is no material before the Department to indicate that the applicant has been deliberately uncooperative or untruthful in his dealings with the Department. The Tribunal gives some weight to the applicant’s conduct as weighing against cancellation of the visa.

28. There is no evidence that there would be consequential cancellations in this case.

29. There is nothing to suggest, and the applicant does not claim, that Australia’s international obligations would be breached as a result of the cancelation.

30. If the applicant’s visa is cancelled, he could become an unlawful non-citizen who could be detained and removed from Australia. He would have limited options to apply for any other visas in Australia. He could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion (as has already been an issue for him in applying for a Subclass 500 visa). However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.

31. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which of themselves mean that the visa should not be cancelled.

32. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal finds the breach to be significant, as the applicant had, as at the date of the NOICC, not been enrolled in a registered course of study for over six months, in circumstances where his reason for being in Australia was to study. However, the Tribunal accepts that throughout that period there were various issues impacting upon his ability to continue studying as intended, including his wife’s difficulties and his studies to improve his English skills (which he has now done). Further and significantly the applicant has completed the first two courses of his intended studies, has arranged for further studies pending his visa status and demonstrated to the Tribunal a genuine awareness that that he will need to wholeheartedly apply himself to his studies.

33. Considering the circumstances as a whole, the Tribunal concludes that the discretion to cancel the visa should not be exercised.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Susan Trotter
    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.