Singh (Migration)

[2017] AATA 2638

Singh (Migration) [2017] AATA 2638 (25 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaideep Singh

CASE NUMBER:  1600621

DIBP REFERENCE(S):  BCC2015/298475

MEMBER:Tigiilagi Eteuati

DATE:25 September 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 25 September 2017 at 2:17pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Applicant ceased enrolment for over 12 months – Closure of education provider – Applicant abandoned vocational courses – Intention of undertaking study in Australia

LEGISLATION

Migration Act 1958, ss 116, 359AA

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 12 January 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 that the applicant had breached the condition of his visa that he be enrolled in a registered course. 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 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 3 March 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 the applicant was not enrolled in a registered course.

9. The Minister’s delegate found that the applicant had not been enrolled in a registered course since 15 August 2014. This accords with records held by the Department and is conceded by the applicant although the applicant claims that he re-enrolled in a course in mid-2015 which he claims to have completed.

10. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    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).

13. When the applicant arrived in Australia in January 2014, he was enrolled in three information technology courses to be completed successively; a Certificate III, a Diploma and then a Bachelor degree. It appears that he completed the Certificate III in mid-2014 and dropped the other two courses including the Bachelor degree on 26 May 2014. 

14. The applicant appeared to claim that the reason that he discontinued his studies was that the TAFE where he had been studying was closed down. However, when the TAFE was closed down the applicant had completed his first course and his Diploma was offered at a different institution and no reasonable explanation was given as to why the applicant did not continue with his IT studies leading to a degree. The applicant then suggested that he did not have the English language skills to continue his IT studies.

15. He applied for 6 various vocational courses at Skills Institute Australia and Lifetime International Training College in subjects including aged care, marketing, business and community services work. The applicant failed to commence any of these courses and his enrolment in them was cancelled as a consequence. The last of these courses was cancelled on 15 August 2014.

16. Then on 25 September 2014, after his enrolments had been cancelled for non-commencement, the applicant applied for a subclass 572 visa. This application was refused because the applicant was not enrolled in a registered course which was a condition for the grant of the visa. He sought review of this decision first before the Migration Review Tribunal (MRT) and then before the Refugee Review Tribunal (RRT). From the MRT decision it is clear that the applicant understood that he could not succeed because he was not enrolled in a registered course. The applicant indicated that he had sought advice from migration agents who had advised him not to seek enrolment. The MRT affirmed the delegate’s decision as the applicant did not meet the criteria for the grant of the subclass 572 visa because he was not enrolled in a registered course.

17. The applicant, knowing why his visa had been refused, then bizarrely applied to the RRT for review of the delegate’s decision relating to his application for a student visa. Of course, the RRT found that it did not have jurisdiction to review the decision. The relevant information in the MRT decision was put to the applicant for comment or response in the manner required by section 359AA. The applicant responded that he did not think that he had told the MRT that he had advice that he should not seek enrolment.

18. The applicant said that after the review in the MRT and RRT he met another migration agent who told him that he still held a subclass 573 visa. He said that he then enrolled in a Diploma of Management and an Advanced Diploma of management in around mid-2015. This is consistent with the applicant’s response to the Notice of Intention to Consider Cancellation (NOICC) on 4 January 2016. In his response he indicated that he had completed a Diploma Management and was studying an advanced Diploma in Management. There was no mention of a Diploma of Business.

19. At the hearing the applicant produced a certificate from Total E Training Services (Total) indicating that the applicant had completed a Diploma of Business on 8 January 2016. There is no record of the applicant being enrolled in a Diploma of Management, Advanced Diploma of Management or a Diploma of Business in PRISMS. Indeed there is no record in PRISMS that the applicant had been enrolled in any course since the last of his vocational course enrolments was cancelled in August 2015. This information was put to the applicant in the manner required by section 359AA. The applicant responded that he did not know why there was no record of his Diploma of Business in PRISMS. The Tribunal asked the applicant to provide a letter from Total indicating that they were registered education providers and that the course the applicant completed was a registered course and indicating why there was no record of the enrolment in the PRISMS system. After the hearing the applicant produced a letter from Total indicating that the applicant was awarded a Diploma of Business but not answering the Tribunal’s questions about institution or course registration or why the enrolment had not been recorded in PRISMS.

20. The Tribunal indicated to the applicant that, given that the Diploma of Business course was not recorded in PRISMS and because he had not mentioned the course in his response to the NOIC, the Tribunal may not accept that the applicant was enrolled in a registered course after August 2014. The applicant indicated that he had mistakenly indicated in the response to the NOICC that he had undertaken a Diploma of Management when he had actually undertaken a Diploma of Business.

21. The applicant also indicated that his desire to study at a higher education level was evidenced by the fact that he took a PTE English test before his visa was cancelled so that he could be admitted into a Bachelor of IT course. However, the PTE report he gave to the Tribunal indicated that the test was taken on 8 January 2016 after he had received the NOICC on 15 December 2015 and indeed after he had replied to the NOIC on 4 January 2016.

22. The Tribunal indicated that some of the letters that the applicant had provided to the Tribunal strongly indicated that the applicant had been working full time even after his visa was cancelled. The applicant denied this and said that the people who had provided the letters had been mistaken. He also provided inconsistent evidence as to whether he had worked after his visa was cancelled in January 2016. At first he said that he had not worked after his visa was cancelled. When the contents of a letter indicating that he had worked were put to him, he then indicated that he had been working until mid-2016. He changed this again and said he had been working until February or March 2016 and then reverted back to asserting that he had not worked after his visa was cancelled.

23. The Tribunal indicated its concern that given the applicant had stopped studying in 2014, that he was not enrolled in a registered course since August 2014, that he had refused to enrol in a course despite knowing that enrolment in a course was a criteria for the grant of a subclass 572 visa and that the letters from his workmates indicated that the applicant had been working even after his visa was cancelled, the Tribunal was concerned that the applicant had no desire to study and simply wished to stay in Australia to continue working.

24. The applicant answered that the fact that he completed his Diploma of Business and sat the PTE English language course showed that he did intend to study in Australia.

25. The applicant indicated that his parents did not know that his visa had been cancelled and that he would be embarrassed and ashamed if he returned to India without completing a higher education course. He said that it was his and his family’s shared dream that he completed a higher education course in Australia. He said that he did not return to India when two of his grandparents died because he remained in Australia to complete his studies.

26. The Tribunal finds that the applicant does not have the desire to successfully undertake a higher education course in Australia. The applicant abandoned his Bachelor degree higher education course in 2014 and did not enrol in another Bachelor course. The applicant instead enrolled in 6 vocational courses but abandoned all of them by August 2014. The applicant refused to re-enrol in any registered course despite applying for a subclass 572 visa and being told by the Department and the MRT that he could not be granted a subclass 572 visa unless he was enrolled in a registered course. The applicant told the MRT that he had been advised not to enrol in any course.

27. The Tribunal finds that this is clear evidence that the applicant had no intention of undertaking any study in Australia, let alone a higher education course. The Tribunal does not accept that the applicant was enrolled in a registered course after August 2014. The Tribunal does not accept that the applicant was enrolled in a Diploma of Management, an advanced Diploma of Management or a Diploma of Business. None of these courses were recorded in PRISMS. In addition, although the applicant provided a certificate and a letter from Total indicating that the applicant had completed a Diploma of Business, there was no record or this course in PRISMS and the applicant did not mention it in his response to the NOICC.

28. In addition, the applicant only took the PTE test after he had been given the NOICC and the Tribunal does not accept that the fact that he sat the test supports the argument that he wishes to undertake a higher education course in Australia.

29. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a higher education course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. However, the applicant had every chance to study the courses for which he came to Australia to study but instead decided to abandon his education and work in Australia instead

30. In any event, the Tribunal finds that the applicant’s lack of desire to successfully undertake higher education courses in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

32. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Tigiilagi Eteuati
    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.