Singh (Migration)

[2017] AATA 2633

Singh (Migration) [2017] AATA 2633 (28 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amanjot Singh Singh

CASE NUMBER:  1620178

DIBP REFERENCE(S):  BCC2016/2955533

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 10:05am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not enrolled in registered course – Non-payment of fees – Not inform change of address

LEGISLATION

Migration Act 1958, s 116(1)(b)

Migration Regulations 1994, Schedule 2, cl 573.223(1A)(c), Condition 8202(2)(a), Condition 8533, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 16 November 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.Mr Singh, the applicant, is 23 years old and arrived in Australia in May 2014 from India.

3.The delegate cancelled Mr Singh’s visa on the basis that Department of Immigration and Border Protection records indicated that Mr Singh had not been enrolled in a registered course of study from 22 September 2015, contrary to the requirements of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The delegate went on to consider that the considerations in favour of cancellation outweighed those against cancellation and cancelled the visa.

4.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5.Mr Singh appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

6.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

7.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 Regulations. If Mr Singh has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

Did the applicant comply with Condition 8202?

8.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).

9.In the present case, Mr Singh’s visa was cancelled on the basis that he was not enrolled in a registered course.

10.Mr Singh provided the Tribunal with a copy of the Department’s decision to cancel his visa, made on 16 November 2016. He agreed that the Department’s decision was correct where it stated that he had not been enrolled in a registered course of study since 22 September 2015.

11.Mr Singh said he initially enrolled in a Bachelor of Information Technology course but the course fees were too expensive, so he cancelled that enrolment and enrolled in a less expensive Certificate III in Commercial Cookery. Mr Singh was subsequently unable to afford the fees for that course and on 22 September 2015 the education provider cancelled his enrolment for non-payment of fees. On the evidence before the Tribunal, Mr Singh was not enrolled in a registered course.

12.Accordingly, Mr Singh has not complied with condition 8202(2) and the ground for cancellation of his visa is made out.

Consideration of the discretion to cancel the visa

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

14.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).

15.The Tribunal discussed Mr Singh’s circumstances that resulted in the cancellation of his visa.

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

16.Mr Singh said he arrived in Australia in May 2014 to study a Bachelor of Information Technology course with a view to being employed in the information technology sector. Mr Singh told the Tribunal he had previously studied two years of mechanical engineering in India but decided to pursue study in information technology because he had an interest in computer science.

17.When the Tribunal asked Mr Singh what sort of roles he was interested in in the information technology sector Mr Singh replied that he had not thought about specific roles, his first step was to complete his study and then find work preferably in Australia because he could earn much more in Australia than he could in India. Mr Singh did indicate he would be prepared to return to India if he could not find work in Australia.

18.Following the change of his course of study in April 2015 to commercial cookery, Mr Singh advised the Tribunal that his current study plan is to become a qualified chef so that he can work in any restaurant, again either in Australia or India.

19.Mr Singh advised the Tribunal he has not completed any study in Australia.

20.Having regard to Mr Singh’s evidence the Tribunal is prepared to accept that Mr Singh may have travelled to Australia intending to study, but given his conduct in Australia, which is discussed in more detail below, the Tribunal gives this consideration some weight towards the Tribunal exercising its discretion to cancel Mr Singh’s student visa.

The extent of compliance with visa conditions

21.The Tribunal noted that Mr Singh’s breach of condition 8202(2) appeared to be for a significant period of time – nearly 14 months when his visa was cancelled by the Department. Mr Singh explained that financial difficulties caused the cancellation of his enrolment, as is set out in more detail below.

22.Mr Singh also indicated that he was not notified by the Department or anyone else that he was in breach of his visa. He indicated if he had been notified he would have made an effort to re-enrol prior to his visa being cancelled. The Tribunal gives this evidence little weight. Mr Singh was aware it was a condition of his visa that he be enrolled in a registered course of study and he gave evidence that from September 2015 onwards he could not afford to pay his course fees as he had lost his job and run out of money. Mr Singh accepted that it was his responsibility to comply with this condition.

23.Mr Singh reported that he did not breach any other condition of his student visa.

24.In the Department’s decision letter it noted that Mr Singh had not responded to various communications from the Department, including the Notice of Intention to Consider Cancellation (NOICC) of a visa. The decision letter records that Mr Singh had not contacted his education provider until 19 September 2016, to advise his residential address. The Tribunal notes this is a potential breach of condition 8533 that applies to all student visas. Condition 8533 requires the visa holder to inform their education provider of their residential address within seven days after arriving in Australia and within seven days of any change in address.

25.Mr Singh indicated he did receive the NOICC but did not respond to it because he could not afford to obtain legal advice at the time. The Tribunal notes that Mr Singh was not under an obligation to respond to the NOICC. Mr Singh advised that he had kept his residential address up to date. The Tribunal does not have any evidence before it to indicate this is not the case.

26.Condition 8516 requires the visa holder to continue to be a person who would satisfy the primary criteria for the grant of the visa. One of the primary criteria for the grant of a student visa, set out in cl.573.223(1A)(c) of Schedule 2 of the Regulations, is that the visa holder will have sufficient funds to meet the costs and expenses of their study and stay in Australia.

27.Mr Singh’s evidence was that he did not have sufficient funds to maintain his enrolment, even at the Vocational Education and Training (VET) level, and that at times he has had to rely on friends for financial support to enable him to remain in Australia. The Tribunal considers this to also be a breach of condition 8516 of Mr Singh’s visa.

28.The Tribunal does not have any other evidence before it to indicate Mr Singh is in breach of any other condition of his visa.

29.Mr Singh has committed significant breaches of his visa conditions as set out above. Mr Singh did not make any significant effort to remedy those breaches. As discussed below, the Tribunal does not accept that Mr Singh has reasonable or satisfactory explanations for those breaches. The Tribunal is not confident, based on Mr Singh’s evidence, that he would not breach those visa conditions again in the future. The Tribunal therefore gives this consideration considerable weight towards exercising its discretion to cancel Mr Singh’s student visa.

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

30.Mr Singh explained that if his visa remains cancelled it will cause him significant psychological and emotional distress, likely causing him to become severely depressed, if he cannot continue to study in Australia. He indicated he would have to return to India and become a labourer on the family farm to help his parents repay their bank loan. He said the responsibility of repaying the loan would cause him significant stress.

31.As is explained in more detail below, Mr Singh also said cancellation of his visa would cause significant financial hardship for his family back in India.

32.The Tribunal accepts that the cancellation of Mr Singh’s visa will cause both Mr Singh and his family some hardship. The Tribunal gives this only limited weight towards not exercising its discretion to cancel Mr Singh’s student visa as these consequences were readily apparent to Mr Singh when he breached his visa conditions and then failed to remedy those breaches for a substantial period of time, even when he had the opportunity to do so.

Circumstances in which ground of cancellation arose

33.The Tribunal discussed at length with Mr Singh the circumstances which led to the cancellation of his visa.

34.Mr Singh explained that his parents had funded his education in Australia. Mr Singh’s family remain in India where his father is a farmer and his family currently farm land owned by Mr Singh’s grandfather. Mr Singh’s parents used the land, with his grandfather’s permission, as security to obtain a bank loan to support Mr Singh in Australia.

35.Mr Singh said that it had cost $20,000 to obtain a visa, come to Australia and commence study, with an additional $10,000 in course fees towards his Bachelor of Information Technology studies with a further $50,000 in fees to complete the course. He moved into a house in Melbourne with friends made through his studies. Mr Singh reported he completed six months of his Bachelor studies including passing some exams, but was not able to provide the Tribunal with any evidence to support that claim. Mr Singh said he then went on a holiday in Australia for four to five months.

36.Mr Singh’s friends advised him to change his enrolment to a VET level course as the course fees would be much cheaper. Mr Singh chose to enrol in a Certificate III in Commercial Cookery in April 2015 which he said cost $5,000 in enrolment fees. He attended classes for three or four months but then ran into financial difficulties which meant he could not continue to pay his course fees. He said the stress of his financial difficulties also negatively affected his ability to study.

37.Mr Singh indicated his parents had unspecified financial difficulties around this time and could not send him money to support himself and pay his course fees. He said the non-payment of his course fees led to his enrolment being cancelled in September 2015.

38.Mr Singh said he had worked at a car wash for three or four months but had found it difficult to obtain work in Australia and had not worked regularly. He advised the last time he had worked was over a year ago. When the Tribunal asked Mr Singh how he could afford to live in Australia in those circumstances he said that he spends only $100 per month on food, that his friends were helping with his rent and that his family’s financial situation had improved to the point where they could send him some money from time to time, but not enough for his course fees. Mr Singh did not have any plans for future part time work if he were to be granted a student visa.

39.When the Tribunal asked Mr Singh if his visa was not cancelled, what had changed (so he would not breach his visa again) he indicated he hoped his family could get some money from his father’s relatives, which he would repay when he gets a (better paying) job in Australia. The Tribunal indicated to Mr Singh that his future study plans, particularly in the context of the history of his study and stay in Australia to date, seemed very speculative leading to the Tribunal being unable to give that evidence significant or much weight. Mr Singh responded that he did not have anything to say about that.   

40.When the Tribunal asked Mr Singh what would happen if his visa remained cancelled he indicated he would go back to India to study. This contradicted Mr Singh’s earlier evidence that he would need to return to India to work as a labourer to assist his family to repay their bank loan. When the Tribunal asked what would happen if his family could not repay the bank load, Mr Singh indicated they would have to sell the land they are farming which, as noted earlier, belongs to his grandfather.

41.When asked whether he felt the circumstances that led to the cancellation of his visa were outside his control, Mr Singh indicated initially that he did feel that, particularly in the context of not receiving a “warning letter” from the Department. However, he also said he accepted that it was his own fault that he did not have the money to re-enrol.

42.Mr Singh did not provide the Tribunal with any documentary or other evidence to support the various claims he made.

43.The Tribunal found Mr Singh’s evidence to be generalised and lacking in detail. The Tribunal accepts that Mr Singh has experienced financial difficulties, but does not accept Mr Singh’s explanation that the circumstances leading to the cancellation of his visa were beyond his control. Mr Singh chose to go on holidays for four to five months but then only a few months later lost his part time job, ran out of money and was unable to pay his course fees. Mr Singh was then unable to remedy that situation in the nearly 14 months prior to his visa being cancelled either through part time employment or with the support of his family. The Tribunal accepts that the financial situation of Mr Singh’s family is outside his control.

44.Mr Singh’s behaviour since arriving in Australia demonstrates a lack of commitment to his studies and he did not satisfactorily explain either his failure to maintain his enrolment in a registered course of study or his failure to remedy that situation.

45.The Tribunal gives this consideration very limited weight against exercising the discretion to cancel Mr Singh’s visa.

Past and present conduct of the visa holder towards the department

46.The Department’s decision letter records that Mr Singh did not respond to various communications from the Department. As noted above, the Tribunal is satisfied that Mr Singh had an explanation for at least not responding to the NOICC from the Department.

47.The Department’s decision letter also records that there is no evidence Mr Singh has been uncooperative towards the Department. Therefore, the Tribunal gives this some, but only little, weight against exercising the 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

48.      This consideration is not relevant to Mr Singh’s application.

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

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

50.“[Mr] Singh will have limited options to apply for further visas in Australia and may be required to return to his country of citizenship.

[Mr] Singh might be subjected to Public Interest Criteria 4013 which may result in a three year exclusion from having any new application for most temporary visas approved. He would also be subject to a section 48 bar on applying for certain visas onshore. However, [Mr] Singh will not be barred indefinitely and after three years will be able to apply for any other visa for which he is eligible.” [1] 

[1] Department file, folio 24.

51.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, removal under section 198 of the Migration Act 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 17 November 2019.

52.Mr Singh told the Tribunal if his visa remains cancelled then he would return to India to study or work, that there is nothing to prevent him returning to India and that he has the financial resources to do so promptly. Therefore, the Tribunal gives these potential consequences some but only modest against exercising the Tribunal’s discretion to cancel Mr Singh’s student visa.

Whether there would be consequential cancellations under s.140

53.This consideration is not relevant to Mr Singh’s application.

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

54.      This consideration is not relevant to Mr Singh’s application.

Any other relevant matters

55.The Tribunal invited Mr Singh to raise any other matters relevant to the Tribunal’s consideration of whether to exercise the discretion to cancel Mr Singh’s visa. Mr Singh chose not to raise any other matters.

Conclusion

56.The Tribunal has carefully considered Mr Singh’s evidence and Mr Singh’s circumstances as a whole, including those matters set out in Ministerial Determination no. 53.

57.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 May 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;

·his breach of condition 8516 of his student visa;

·the likelihood, given his present circumstances of relying on friends for financial support (in addition to the support of his family), that he would commit further breaches if granted a student visa;

·Mr Singh acknowledging that the circumstances of his breach were not outside his control; and

·Mr Singh acknowledging there was no impediment to him returning to India, he could afford to return and would be able to study in India (or work).

58.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 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, particularly if the family farm has to be sold to repay loans taken out, if Mr Singh’s visa remains cancelled; and

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

59.Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled as the considerations favouring the exercise of the discretion to cancel Mr Singh’s visa outweigh the considerations against the exercise of the discretion.

DECISION

60.      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.