SINGH (Migration)

[2017] AATA 2058

SINGH (Migration) [2017] AATA 2058 (25 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARMANJIT SINGH

CASE NUMBER:  1614992

DIBP REFERENCE(S):  BCC2016/2440830

MEMBER:Antoinette Younes

DATE:25 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2017 at 6:11pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector visa – Breach of condition 8202 – Not enrolled in registered course

LEGISLATION
Migration Act 1958, ss 116, 140, 359AA
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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 did not comply with condition 8202 attached to his visa. 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 13 October 2017 to give evidence and present arguments. 

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. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review. Specifically, the Tribunal indicated to the applicant that information available to the Department in the Provider Registration and International Student Management System (PRISMS) shows that at the date of the delegate’s decision record of 15 September 2016, the applicant was not enrolled in a registered course.

9. In accordance with s.359AA, the Tribunal discussed (and showed) the applicant information available in PRISMS indicating that his enrolments in 11 courses ranging from the University Foundation Studies course which he commenced in February 2014, to his enrolment in the Diploma of Hospitality Management course due to commence on 1 January 2018, were cancelled, on the grounds of non-commencement of studies and Change to CoE/Student Details suggesting that he has not been enrolled in a registered course which means that he has breached condition 8202. Apart from one enrolment not mentioned in PRISMS which was completed on 22 November 2015, the applicant agreed with the correctness of this information and provided explanations as discussed below. 

10. The Tribunal finds that since 22 November 2015, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2). It therefore follows that the ground for cancellation under s.116(1)(b) arises.

    Consideration of the discretion to cancel the visa

11. 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.

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).

    The purpose of the applicant’s travel to and stay in Australia - whether the applicant has a compelling need to travel to or remain in Australia

13. The applicant has claimed that the purpose of his travels and stay in Australia was to study and he was granted the visa for that purpose.

14. Although the applicant has completed one course, the evidence is that his enrolments in 11 courses have been cancelled due to non-commencement of studies and Change to CoE/Student Details.  The Tribunal gives significant weight to this aspect.  The Tribunal accepts as plausible that the applicant travelled to Australia to study, but on the evidence before it, the Tribunal is not satisfied that the applicant is staying in Australia for study purposes or that he has a compelling need to remain in Australia.

    The extent of compliance with visa conditions - whether the applicant has otherwise complied with visa conditions now and on previous occasions

15. Although the evidence before the Tribunal suggests non-compliance relating to unsatisfactory course attendance or unsatisfactory academic progress, the applicant’s visa was cancelled on the basis of non-compliance with condition 8202 which the Tribunal considers to be significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members - whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

16. In submissions responding to the notice of intention to consider cancellation, the representative noted that the applicant has enrolled in a Diploma of Hospitality course with AAMS commencing on 4 January 2016 and is progressing well.  The applicant has also obtained an overall score of 7 in an IELTS taken on 23 January 2016.  The representative provided a copy of the CoE from the AAMS for the Diploma course, which was cancelled as shown in PRISMS records discussed with applicant in the course of the hearing.

17. In the course of the hearing, the applicant gave evidence that his parents would like him to continue with his studies.  He said he wants to pursue his studies in business at a Bachelor’s or Master’s level.   He drew attention to the IELTS overall score of 7 to say that it would assist him.

18. The Tribunal acknowledges that the applicant came to Australia to study and he has completed a course. The Tribunal accepts as plausible that if the visa were to be cancelled, there could be a degree of disappointment to the applicant and to his parents. The Tribunal has given this aspect some weight.

19. The Tribunal is mindful that the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

20. Looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The Circumstances in which ground of cancellation arose - whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence.

21. The applicant gave evidence that he came to Australia in February 2014 on a subclass 573 to undertake studies in IT at the University of Western Sydney.  He was however interested in business management but his agent suggested AIMS College to undertake cookery courses.  He changed his visa to a subclass 572.  The Tribunal expressed concerns that the applicant was granted a subclass a 573 visa to study IT and within a few months he changed to cookery on a subclass 572.  The applicant acknowledged the difference in courses but he said he wanted to do business management but the agent suggested cookery.  He said he and about 5 others changed courses.  When asked, he said he did not complete the course but he paid fees to cover the September 2014 to March 2015 session.

22. The applicant stated that in April 2015, he returned to his studies but he was asked to pay fees “under the table” – meaning he was improperly asked to pay money to get pass marks.  He later withdrew the allegation and he did not wish to provide any further details about the person who requested the money.  When asked, he said he did not complain but he returned to his agent and told him he was no longer interested in cookery.  The agent suggested business management.  He said he attended classes from September to November 2014.  He said he returned in February 2015 for 2 months.  The Tribunal asked the applicant if he had completed any courses, he said he did.  He provided a copy of a document from OzStar Academy Pty Ltd certifying that the applicant had completed a Diploma of Management which commenced on 27 April 2015 and finished on 22 November 2015.  The Tribunal noted that this is not reflected in PRISMS.  The Tribunal indicated that even if the Tribunal were to accept that he did complete the course, it would appear that since 22 November 2015, he was not enrolled in a registered course.

23. Subsequent to the hearing, the Tribunal wrote to OzStar Academy Pty Ltd which confirmed that the applicant had completed the course on 22 November 2015.  The Tribunal has accepted that the applicant has completed this course and that PRISMS records appear to be incorrect in this regard.  However, since completion of that course, further enrolments were cancelled.

24. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to his visa. The Tribunal has carefully considered the applicant’s circumstances and on the evidence, the Tribunal is satisfied that his circumstances as accepted by the Tribunal and for the reasons explained do not mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department - whether the applicant has been truthful and cooperative in their dealings with the department.

25. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some weight in favour of the applicant but this does not mean that the visa should not be cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

26. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether there are mandatory legal consequences to a cancellation decision

27. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

28. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. 

    Any other relevant matters raised by the applicant

29. There are no other matters requiring consideration by the Tribunal.

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

    DECISION

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

    Antoinette Younes

    
    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.