SINGH (Migration)

[2017] AATA 2702

SINGH (Migration) [2017] AATA 2702 (6 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjeet SINGH

CASE NUMBER:  1615675

DIBP REFERENCE(S):  BCC2016/2461586

MEMBER:Christopher Smolicz

DATE:6 October 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 06 October 2017 at 9:58am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Applicant ceased enrolment – Lack of academic progress

LEGISLATION

Migration Act 1958, ss 116, 140

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 19 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 Mr Singh failed to comply with condition 8202 of his visa because he was not enrolled in a registered course.

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

5. 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

6. 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

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course since 16 January 2015: condition 8202(2).

   Background

9. The applicant, Mr Singh, arrived in Australia from India on 11 December 2013 as the holder of a Subclass 573 visa.

10. Upon his arrival to Australia, Mr Singh enrolled in an English Language Program (Beginner to Advanced) which was completed on 14 February 2014. Mr Singh was also enrolled in a Bachelor of Information and Communications Technology at the Western Sydney University. The course start date of 24 February 2014 and a course end date of 31 January 2017. Total tuition fees were $74,280. On 9 September 2014, it was advised that his enrolment had been cancelled on the basis of cessation of studies.

11. On 10 July 2014 Mr Singh enrolled in a Certificate IV in Information Technology at Strathfield College, NSW. The course start date was 25 August 2014 and the course end date was 21 August 2015.

12. On 16 January 2015 his enrolment had been cancelled due to non-payment of fees. The applicant has not subsequently enrolled in any other course. He has not completed any other course of study in Australia.

13. On 24 August 2016 the Department sent the applicant a Notice of Intention to Consider Cancellation of his Student visa (the NOICC).

14. On 16 September 2016 the applicant replied to the notice and provided reasons why the visa should not be cancelled. Mr Singh did not dispute the grounds for cancellation of the visa. However, he submitted that after his arrival in Australia, he experienced an unexpected event which affected his life and career. Mr Singh claimed:

    “I lost the support of my family although they were very supportive towards my studies from the start, my father who was always there for me separated from us and has flew (sic) to the UAE. My father left home in December 2013 and has not returned since. He has been out of touch and did not support me or the family back home. We are left with nothing but the house and properties we had which did not generate any active income. After my father turned away, I was responsible to look after myself including support towards my studies….After tireless numerous attempts I came in contact with my father who has finally spoken to me and that I had hope that he would finally be supportive towards my future and career and help me become who I wish to be. After finally getting to talk to him, I received good hope and confidence that I will be able to get started with my career …”

15. He provided a copy of his father’s passport as evidence of his travel.

16. He also outlined that he withdrew from his diploma course at Strathfield College as he could not adjust well to his studies and found it difficult to navigate Sydney.

17. Mr Singh further outlined that he subsequently received a Letter of Offer from Group Colleges Australia to enrol in a Bachelor of Business.

18. In his submission, the applicant requested that his visa not be cancelled so that he could continue his studies.

19. Mr Singh provided a copy of the same submissions to the Tribunal. No additional material has been provided.

20. At the hearing the Tribunal explained to Mr Singh that the first question it needed to address was whether he was in breach of condition 8202(2). The applicant said he was aware that his student visa was subject to conditions. The applicant agreed that he had not been enrolled in a registered course since 16 January 2015.

21. The Tribunal has regard to Mr Singh’s evidence and finds that he was not enrolled in a registered course from 16 January 2015, and has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

22. 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.

23. 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 the following government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3):

    Purpose of applicant’s travel to Australia

24. The purpose of the visa is to allow the visa holder to travel to Australia to study. The applicant maintained that he wants to return to India after he completes his study in Australia. He said that he now wants to study Business because it would give him better employment opportunities in India.

25. Mr Singh also provided evidence of a letter of offer dated 15 September 2016 from Group Colleges Australia for enrolment in a Bachelor of Business. This letter of offer was received after the Department issued its NOICC on 24 August 2016. The Tribunal notes that the offer has since expired and Mr Singh was never enrolled in the course.

    Are there compelling reasons for Mr Singh to remain in Australia

26. The applicant claims that he wants to remain in Australia to study.

    Compliance with visa conditions

27. There is no material before the Tribunal to indicate that the applicant has failed to comply with any other visa conditions.

    Degree of hardship that would be caused by cancelling the visa

28. The applicant is single. No evidence has been provided that any family members in Australia will be negatively affected as a result of cancellation of the visa.

29. The Tribunal accepts that the applicant’s father has paid some funds for the applicant to travel and study in Australia. The Tribunal accepts the applicant will return to India having only completed an English language course.

    Circumstances in which the ground for cancellation arose

30. At the hearing the applicant claimed that his father had obtained a bank loan in India to finance his studies in Australia. He claimed that his father paid the first instalment of his course fees and it was agreed that the bank would subsequently transfer funds direct to the education provider in Australia to pay the remainder of course fees when required.

31. He claims that his father subsequently travelled for two years to work as driver in Oman.  He said that his father was unable to depart Oman because it was a condition of his contract that he work for two years and that he gave his passport to his employer.

32. He claims he telephoned his uncle who worked for the bank and requested the funds to be transferred. He was told the bank would not agree to transfer the funds to Australia if he or his father were not physically present in India.

33. He claimed he approached his education provider and was told that he had to pay 70 per cent of the fees up front. The Tribunal asked the applicant if he contacted the Department to inform them that he was unable to pay his fees and maintain his enrolment. The applicant said he was too scared to contact the Department.

34. The applicant claims that he was in contact with his father and the bank in India. He tried to change courses so that he could pay in instalments. He claims that in 2015 his father was able to travel to India and that he now has access to the funds to pay for his studies. 

35. The Tribunal told the applicant that if found his evidence inconsistent with his written submissions dated 16 September 2016, a copy of which was also provided to the Tribunal. The Tribunal told the applicant it has concerns about the credibility of his evidence because he made no mention about the alleged difficulties he had with the bank and only claimed that he had lost the support of his father. The applicant maintained he did have problems with the bank in India.

    Past and present conduct to the Department

36. Since his visa was cancelled, Mr Singh has remained onshore as an unlawful non-citizen. He has not held any bridging visa since the cancellation of his student visa.

    Any mandatory consequences of cancelling the visa

37. There is no suggestion that he would be detained or indefinitely detained if he leaves Australia within the period allowed. 

    Consequential cancellation under s.140

38. The Tribunal finds there would be no consequential cancellation under s.140 of the Act.

    Whether Australia would breach any international obligations in cancelling the visa

39. The Tribunal does not accept that cancellation of the applicant’s student visa would lead to removal in breach of Australia’s non-refoulement obligations or that any other relevant international agreements would be breached as a result of cancellation of the applicant’s student visa.

    Conclusion

40. The Tribunal has considered the applicant’s submissions and did not find him to be a credible witness. The Tribunal has placed limited weight on his reasons for failing to maintain his enrolment in Australia since January 2015. The Tribunal noted that it was a criteria, for the grant of his student visa that he has the financial capacity to undertake study in Australia. The Tribunal told the applicant it was concerned that he did not approach the Department or seek to defer his studies if he was unable to pay the course fees. The Tribunal is also concerned that since the applicant arrived in Australia he had only completed an English Language course and his student visa expired on 31 March 2017.

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

    DECISION

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

    Christopher Smolicz
    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.