Singh (Migration)

[2017] AATA 2808

Singh (Migration) [2017] AATA 2808 (3 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjinder Singh

CASE NUMBER:  1621046

DIBP REFERENCE(S):  BCC2016/3310664

MEMBER:Tigiilagi Eteuati

DATE:3 August 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 03 August 2017 at 4:30pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a Higher Education course – Enrolment cancelled – Lack of academic progress – Applicant changed into Vocational courses – Physical injuries

LEGISLATION

Migration Act 1958, s 116

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 2 December 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 the applicant had not complied with the condition of his visa to 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 applicant appeared before the Tribunal on 13 July 2017 by video to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent who appeared by telephone.

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 1 December 2015. It appears that the applicant enrolled in a Bachelor of Business course in November 2016 but was not enrolled in any course from 1 December 2015 until November 2016. This was conceded by the applicant.

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. The applicant claimed that he arrived in Australia in March 2014 and began undertaking an English Language course. That course was to be followed by a Diploma of Business and a Bachelor of Business course. The applicant claimed that in May 2014 he burnt his hand badly while cooking. He said that he needed time off from his English course and went to live with his cousin in Mackay. He said that the college he was attending, QIBA, allowed him to commence the Diploma of Business without finishing the English course he was completing. The applicant appeared to claim that, despite his Diploma of Business beginning in August 2014 and despite his medical certificate relating to his burnt hand only providing that he was unfit for work less than two weeks from 26 May 2014 to 8 June 2014, the applicant was unable to begin his Business Diploma in August 2014.

14. The applicant said that QIBA cancelled the applicant’s enrolment in the Diploma of Business on 18 August 2014. The applicant’s enrolment in a Bachelor of Business degree with Southern Cross University was consequently cancelled on 22 August 2014. The applicant breached condition 8516 after his enrolment in the Bachelor degree was cancelled.

15. Correspondence provided by the applicant shows that QIBA wrote to the applicant on 15 August 2014 indicating that the applicant’s course had started on 4 August 2014 and that the applicant’s enrolment in the course would be cancelled if he did not attend orientation on 18 August 2014. The applicant was not enrolled in any course from 22 August 2014 until 19 September 2014.

16. The applicant said that in September 2014 he enrolled in a Diploma of Business course with Yorke Institute in Melbourne. He said that he completed the Diploma in April 2015. In his response to the NOICC the applicant mentioned nothing about having undertaken a Diploma of Business and instead said that he applied for admission at Sunshine College of Management in a Diploma of Business. This is of course curious because according to the applicant’s evidence at hearing, the applicant had already completed a Diploma of Business. Although the PRISMs records indicated that the applicant withdrew from the Diploma of Business at Yorke, the applicant provided to the Tribunal with a certificate of completion of a Diploma of Business from Yorke Institute. While the Tribunal is willing to accept, for the purposes of this decision, that the applicant completed a Diploma of Business from Yorke Institute it is odd that the applicant would have enrolled in another Diploma of Business with the Sunshine College of Management. This is especially so given that the applicant provided the Tribunal with letters of offer from May 2015 to be enrolled in Bachelor course at both Cambridge International College and Elite Education Institute.

17. While the applicant claimed that he applied for enrolment in a Diploma and a Bachelor degree at Sunshine College of Management, the PRISMS records show, and the applicant admits that, in addition to a further English course, the applicant was actually enrolled in Certificates III and IV in Commercial Cookery. While the applicant claims that this was an administrative error, the Tribunal finds that the applicant did, in fact, enrol in these courses. Although the applicant claimed that he wrote to the College to correct the “administrative error” no evidence of any correspondence between the applicant and the College was produced.

18. The Tribunal asked the applicant why he failed to be enrolled in a registered course from December 2015 until after he received the NOICC in November 2016. The applicant had previously claimed that he had injured his back and that this was a significant reason for not being enrolled. However, the medical documents provided by the applicant indicate that the applicant did not injure his back until August 2016. At the hearing the applicant claimed that the reason that he did not enrol was that the College would not enrol him in the Business Diploma he wanted to study and instead demanded that he pay fees for the cookery courses before they would give him a “cancellation letter”. He said that he was unable to enrol in any other courses with any educational institutions until he received this letter. The Tribunal again notes that the applicant provided the Tribunal with letters of offer dated in March 2015 to be enrolled in a Bachelor of Business course at both Cambridge International College and Elite Education Institute.

19. The Tribunal raised its concern with the applicant that, given that he had his first series of business courses cancelled for failing to attend QIBA, and given that he failed to be enrolled in a registered course from December 2015 to November 2016, the applicant may not have the desire to successfully undertake higher education courses in Australia. The applicant said that he had to drop out of the initial courses because he had burnt his hand and that he could not enrol after his enrolments were cancelled with Sunshine College because he could not enrol in any other courses at any other institutions without a letter from Sunshine College indicating that his enrolments there had been cancelled.

20. The Tribunal finds that the applicant does not have the desire to successfully undertake higher education courses in Australia. The applicant’s lack of desire is evidenced by the applicant failing to begin his Diploma course at QIBA which resulted in his COEs for that course and a Bachelor of Business being cancelled. The Tribunal does not accept the applicant’s excuse that the burn to his hand which he suffered in May 2014 prevented him from attending the Diploma course which began in August 2014. The medical certificate relating to his burnt hand only providing that the applicant was unfit for work less than two weeks from 26 May 2014 to 8 June 2014.

21. The applicant’s lack of desire to successfully undertake higher education courses is also evidenced by the fact that the applicant enrolled in a further English course and 2 courses in commercial cookery after he had completed a Diploma of Business and been accepted by two institutions to undertake a Bachelor of Business degree. Even if the Tribunal accepted that the applicant did not apply to be enrolled in the cookery courses, which it does not, the applicant claimed that he wished to enrol in a second Diploma of Business course rather than enrolling in a Bachelor of Business degree.

22. Further, the Tribunal does not accept the applicant’s claim that he was unable to obtain a COE for any course with any institution after his enrolments with Sunshine College of Management were cancelled because he was not given a ‘cancellation letter.” First, he had previously been offered COEs for a Bachelor of Business degree with two other institutions in May 2015. Further, the applicant was able to obtain a COE for a Bachelor of Business in November 2016 shortly after he received the NOICC from the Department.

23. 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 HE 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 was not permitted to solely undertake vocational courses and was required to remain enrolled in a higher education course.  Any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study.

24. 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.

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

    DECISION

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

27. 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.