Singh (Migration)

[2017] AATA 2973

Singh (Migration) [2017] AATA 2973 (28 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

CASE NUMBER:  1618747

DIBP REFERENCE(S):  BCC2016/2954827

MEMBER:Michael Ison

DATE:28 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 28 November 2017 at 11:41am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not enrolled in a registered course – Lack of academic progress – Length of breach – No impediment to return to India

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 Condition 8202

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 27 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 applicant is Mr Gurpreet Singh, a 24 year old Indian citizen.

3. The delegate cancelled the visa on the basis that Mr Singh had not been enrolled in a registered course of study since 18 September 2015, contrary to the requirements of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Mr Singh gave evidence and presented arguments before the Tribunal by telephone on 16 November 2017. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Singh’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mr Singh, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations. If Mr Singh has breached that condition, under s.116(1) of the Act, his 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 Mr Singh:

   ·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, Mr Singh’s visa was cancelled on the basis he was not enrolled in a registered course.

9. The Department’s decision dated 27 October 2017 records:

   “Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that you have not been enrolled in a registered course of study since 18 September 2015.” [1]

   [1] Tribunal file folio 4.

1. The Department’s decision also records that the Department sent Mr Singh a Notice of Intention to Consider Cancellation of his visa (NOICC) on 20 September 2016.

2. Mr Singh responded to the Department’s NOICC by email on 27 September 2016. In his response Mr Singh stated:

   “… I do admit that I was unable to study and continue my enrolment at North Melbourne College for a while… .” [2]

   [2] Department file, folio 24.

3. Mr Singh said to the Tribunal that he was not enrolled from January 2016 until his student visa was cancelled on 27 October 2016. He said that he had paid his course fees until the end of December 2016 and had provided two receipts for partial payment of course fees after receiving the Department’s NOICC.

4. The Tribunal read Mr Singh the following extract from the Department’s decision letter:

   “… North Melbourne College advised that the reason he ceased studies was due to non-payment of fees. North Melbourne College advised that the payments made by the visa holder to them on 24 September 2015 and 21 October 2015 were for arrears of fees owed to them. North Melbourne College also advised that the visa holder’s enrolment was cancelled on 18 September 2015 and that as there is an outstanding amount of fees due the visa holder’s enrolment was never re-instated.” [3]

   [3] Tribunal file, folio 2.

5. Mr Singh responded that he knows he paid the fees until the end of November or December 2015, before clarifying he was sure it was until the end of December 2015. Mr Singh did acknowledge he was not enrolled in a registered course of study in 2016 up until his visa was cancelled.

6. On Mr Singh’s evidence he was in breach of condition 8202(2) of his student visa for nearly 10 months. Based on the Department’s assessment Mr Singh was not enrolled for over 13 months.

7. On the information before the Tribunal, the Tribunal is satisfied that Mr Singh was not enrolled in a registered course of study with an approved provider for at least the period 1 January 2016 until his student visa was cancelled on 27 October 2016. Accordingly, Mr Singh has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

8. Having found that Mr Singh has not complied with a condition of his visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

9. 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 Mr Singh as to why his visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

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

10. Mr Singh said that his purpose of travelling to and staying in Australia was to study and then either find “better opportunities” in Australia or return to India to commence a business to help support his extended family, most of who are unemployed.

11. The Tribunal accepts, as the Department did, that Mr Singh’s original intention in travelling to and staying in Australia was to study.

12. The Tribunal gives this consideration little weight towards not cancelling Mr Singh’s visa as he has failed to be enrolled in a registered course at least since 1 January 2016 and more likely since 18 September 2015. Prior to the cancellation of his visa, Mr Singh had at least 10 months and probably more than 13 months to rectify his failure to maintain enrolment, but did not do so.

    The extent of compliance with visa conditions

13. Mr Singh said that he had complied with all other conditions of his student visa.

14. Both the Department’s decision and Mr Singh’s response to the NOICC record that he had significant financial issues prior to his visa being cancelled, including at times not having enough money to be able to afford to travel to College.[4]

    [4] Tribunal file, folio 2 and Department file folio 24

15. The Tribunal reminded Mr Singh that it is a requirement of a student visa that he has sufficient funds to be able to study in Australia. Mr Singh indicated that he had kept money separately for his studies, which contradicts his written response to the Department’s NOICC.

16. There is no specific evidence before the Tribunal that Mr Singh has breached his visa conditions other than condition 8202. Therefore, the Tribunal gives this consideration some but only modest weight in favour of not cancelling Mr Singh’s student visa.

17. However, Mr Singh has admitted breaching condition 8202 for at least 10 months. On the evidence before it the Tribunal finds it is more probable that Mr Singh was in breach for over 13 months. Even at 10 months this is a substantial breach and goes to the very purpose for which Mr Singh was granted a visa to come and stay temporarily in Australia. Accordingly, the Tribunal gives this consideration considerable weight toward exercising the Tribunal’s discretion to cancel Mr Singh’s student visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

18. In both his response to the NOICC and to the Tribunal, Mr Singh emphasised that his parents had spent over $30,000 AUD on his education and stay in Australia to date with money sourced from their savings and family and friends. Under questioning, Mr Singh indicated his family’s hope was that he would obtain higher paid employment either in Australia or India as a result of achieving Australian tertiary qualifications and would thereafter be able to support much of his extended family, most of who do not work.

19. Mr Singh emphasised that if his visa remains cancelled his extended family would suffer significant financial and emotional hardship.

20. Mr Singh said that he does not know how he or his family would repay the money they have borrowed if he cannot complete his studies in Australia and that this “… would be a big load on [his] mind…”. He reported that cancellation would cause him significant stress and anxiety.

1. The Tribunal accepts Mr Singh’s concerns about the hardship both he and his extended family may experience as legitimate and reasonable. Mr Singh describes his family as middle class, but in the hearing indicated that his father no longer works and only an uncle within the extended family is employed. It is evident that if Mr Singh fails to obtain any formal qualifications in Australia that may impact on his earning ability with associated financial and emotional hardship for both Mr Singh and his family.

2. However, as discussed below, the Tribunal does not accept that Mr Singh has satisfactorily explained why he failed to maintain his enrolment and why he did not rectify that breach for so long.

3. The Tribunal expects that Mr Singh was aware of the obligations his student visa placed on him and the potential consequences of breaching any of those obligations, including the possible cancellation of his student visa. Therefore, the Tribunal gives the hardship Mr Singh will experience little weight toward not cancelling Mr Singh’s student visa.

4. The Tribunal accepts that Mr Singh’s family had little control over what Mr Singh did while he was in Australia to study. The hardship that may be visited upon them if Mr Singh’s visa remains cancelled may be significant and is outside their control. The Tribunal gives this some weight against exercising its discretion to cancel Mr Singh’s visa.

   Circumstances in which ground of cancellation arose.

5. Before the Tribunal and in his response to the NOICC, Mr Singh described the circumstances of the breach of his visa conditions as follows:

   ·Mr Singh came to Australia in February 2014 and enrolled in a package course leading to a Bachelor of Business;

   ·He studied one semester of his package course and then changed his studies in January 2015 to “automotive”, described in the Department’s decision letter as a Certificate III in Light Vehicle Mechanical Technology course;

   ·Mr Singh’s father was hospitalised in India for sciatica and very severe pain on 13 September 2015;

   ·The illness suffered by Mr Singh’s father meant that his father could not walk or work, causing financial difficulties for their family and negatively affecting his parents capacity to pay for Mr Singh’s studies, to the point where Mr Singh at times did not have enough money to pay to get to and from college;

   ·In the response to the NOICC, Mr Singh said that his financial difficulties and the stress he experienced were exacerbated by not having a job;

   ·North Melbourne College cancelled Mr Singh’s enrolment on 18 September 2015 for non-payment of fees;

   ·Mr Singh claims to have continued to pay his course fees and to have continued to attend classes to the end of 2015. Mr Singh provided fee receipts dated 24 September 2015 for $700 and 21 October 2015 for $500 from the College as evidence of this. North Melbourne College advised the Department these payments were for arrears of fees, but as Mr Singh still remained in arrears his enrolment was not reinstated. Mr Singh did not provide any evidence of his class attendance or academic progress;

   ·The illness experienced by Mr Singh’s father caused Mr Singh great distress and anxiety, leading to depression. Mr Singh felt helpless not being able to help his family from Australia. To deal with his anxiety, Mr Singh began using [prescription] medicine, [from] January 2016. Mr Singh said he was prescribed [a medication] to help him deal with his [problems]. Mr Singh did not provide any medical evidence to support his claim he experienced depression or had been prescribed medicine despite being requested to do so by the Tribunal;

   ·Mr Singh reports that he [used money elsewhere] using money set aside for his [studies]. During this time he did not know what he was doing or what was happening;

   ·With the partial recovery of his father, who is now walking again with assistance, unspecified improvement in the family’s financial position, the care of a doctor and assistance of a cousin in Melbourne, Mr Singh was able to [deal with his problems] in September 2016 and felt ready to study again;

   ·[Details deleted];

   ·The Department cancelled Mr Singh’s visa on 27 October 2016;

   ·Mr Singh strongly feels that the circumstances that led to his discontinuation of his studies were outside his control.

6. In response to questions from the Tribunal, Mr Singh said that because he did not know what he was doing when he was depressed, [he] did not seek deferment of his studies or financial assistance from North Melbourne College, and sought medical treatment for his [problems] but not his depression.

7. The Tribunal does not accept Mr Singh’s explanation of the circumstances of the breach of his student visa.

8. Mr Singh became aware of the seriousness of his father’s illness and hospitalisation in September 2015. It is evident from the cancellation of Mr Singh’s enrolment on 18 September 2015 that Mr Singh was already experiencing financial difficulties prior to the escalation in his father’s illness. The Tribunal accepts that his father’s illness may have exacerbated Mr Singh’s financial difficulties.

9. Mr Singh had the period October to December 2015 inclusive, prior to [his problems], to contact the College and explain his circumstances with a view to seeking counselling assistance, a deferment or suspension of his studies or financial assistance or consideration. He chose not to do so.

10. Mr Singh told the Tribunal he used money set aside for his [studies]. This seems inconsistent with his earlier claims that due to the financial difficulties caused by his father’s illness he could not afford at times to travel to and from College.

11. Mr Singh said he did not seek medical treatment or other assistance for his depression and the Department’s decision letter records that Mr Singh did not return home to India to either see or support his family or to receive their support in return.

12. Mr Singh reported [his problem stopped] in September 2016. He provided no evidence of any attempts to recommence his studies after receiving the Department’s NOICC on 20 September 2016 and prior to the Department cancelling his visa five weeks later on 27 October 2016.

13. The Tribunal does not accept that the circumstances leading to the cancellation of Mr Singh’s student visa were beyond his control. As is evident from the discussion above, Mr Singh had opportunities at different times to make choices or seek help or assistance that may have prevented his visa being cancelled.

14. Therefore, the Tribunal considers this supports the Tribunal exercising its discretion to cancel Mr Singh’s student visa and places little weight on Mr Singh’s evidence that due to circumstances beyond his control his visa should not be cancelled.

    Past and present conduct of the visa holder towards the department

15. The Department’s decision letter states:

    “There is no evidence that the visa holder has been uncooperative with the Department.” [5]

    [5] Tribunal file, folio 1.

16. The Tribunal therefore gives this consideration some weight toward not exercising its discretion to cancel Mr Singh’s visa.

    If breach relates to a breach of r.2.43(1)(a) by a Subclass 457 visa holder – mitigating, compassionate and compelling factors

17. This consideration was not relevant in this review.

    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.

18. The Department’s decision letter acknowledged there are some potential legal consequences for Mr Singh arising from the breach of his student visa:

    “If the visa were to be cancelled the visa holder would become an unlawful non-citizen and could be liable for detention under s189 and removal under s198 of the Migration Act 1958 if he does not voluntarily depart.

    I note that if I decide to cancel the visa under these grounds it may incur a penalty that may prevent the visa holder from being able to meet Public Interest Criteria 4013 and therefore may not be able to be granted a further temporary visa for a period of three years.

    In addition, section 48 of the Act means that the visa holder will have limited options to apply for further visas in Australia, so would need to depart Australia and apply from overseas for most types of further visa applications.” [6]

    [6] Tribunal file, folio 1.

19. The Tribunal acknowledges that the possible cancellation of Mr Singh’s student visa may have specific legal consequences for him. These could include making Mr Singh an unlawful non-citizen and liable to detention under section 189 of the Migration Act, removal under section 198 and may also prevent him from being granted another temporary visa. That could occur if the criteria for such temporary visa includes Public Interest Criteria 4013 (risk factors) and Mr Singh fails to make out compelling and compassionate circumstances for the grant of such a visa or the Minister refuses to intervene. This could prevent Mr Singh obtaining another temporary visa until at least 28 October 2019.

20. Mr Singh informed the Tribunal that if his visa remains cancelled he will return to India. He said there is no impediment to him returning. Accordingly, the Tribunal gives this consideration little weight against exercising its discretion to cancel Mr Singh’s visa.

    Whether there would be consequential cancellations under s.140

21. This consideration was not relevant in this review.

    Whether any international obligations would be breached as a result of the cancellation

22. This consideration was not relevant in this review.

    Any other relevant matters

23. Mr Singh did not raise any other relevant matters with the Tribunal.

    Conclusion

24. The Tribunal has considered all of the information provided by Mr Singh, on the Department’s file and the Tribunal’s file, including the NOICC dated 20 September 2016, Mr Singh’s response dated 27 September 2016, the Department’s decision dated 27 October 2016 and Ministerial Determination no. 53.

25. The circumstances the Tribunal gave weight to that supported the Tribunal exercising its discretion to cancel Mr Singh’s student visa included:

    ·his lack of genuine academic progress since arriving in Australia in February 2014, having completed no courses to date;

    ·the length and seriousness of the breach of condition 8202(2)(a) of Mr Singh’s student visa;

    ·his failure to put in place any plans or take other action to remedy that breach;

    ·the Tribunal did not accept that the circumstances of his breach were not outside his control; and

    ·Mr Singh acknowledging there was no impediment to him returning to India.

1. These circumstances outweighed the weight the Tribunal was able to give to the circumstances that went against the Tribunal exercising its discretion to cancel Mr Singh’s student visa, which included:

   ·the Tribunal accepting that Mr Singh’s original intention in coming to and staying in Australia was to study;

   ·the Tribunal accepting that Mr Singh will suffer some financial and psychological hardship if his visa remains cancelled;

   ·the Tribunal accepting that Mr Singh’s family will suffer both psychological and financial hardship if Mr Singh’s visa remains cancelled; and

   ·there being no evidence that Mr Singh has been uncooperative with the Department.

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

   DECISION

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

   Michael Ison
   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.