Singh (Migration)

[2017] AATA 2837

Singh (Migration) [2017] AATA 2837 (4 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh

CASE NUMBER:  1616008

DIBP REFERENCE(S):  BCC2016/2720754

MEMBER:Brendan Darcy

DATE:4 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 04 July 2017 at 12:21pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a Higher Education course – Enrolment cancelled – Change to Vocational courses – Limited academic progress – Financial and emotional hardship

LEGISLATION

Migration Act 1958, ss 48, 116, 140

Migration Regulations 1994, Schedule 8 cl 457.223(4)(a) Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 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 the applicant had breached condition 8202(2) imposed on his student 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 provided a copy of the delegate’s decision as part of his review application.

4. The applicant appeared before the Tribunal on 15 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 15 July 2014 and the stay period of the visa was extended up to and including 30 September 2017.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study in a Bachelor of Business (Marketing).  It is also indicated that the applicant was enrolled in Certificates III and IV in Commercial Cookery and a Diploma of Hospitality and that he transferred his Bachelor’s enrolment to another education provider to undertake a Bachelor of Business.

10. The decision record indicates the applicant had been enrolled in any Bachelor’s or a Master’s degree or any since 1 August 2015. PRISMS records indicate that the applicant’s enrolment in a Bachelor of Business (Marketing) was cancelled due to the student leaving the education provider to transfer to another provider.

11. The departmental file indicates that that the applicant was contacted by a departmental official by email prior to issuing the Notice of Intention to Consider Cancellation (NOICC) on 2 September 2016, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe

12. On 19 September 2016, the applicant responded by email to the invitation to respond to the NOICC. Below is summary of those reasons:

    ·The applicant came to Australian and wanted to do some vocational course after his high school but his parents wanted him to do a degree;

    ·When the applicant arrived in Australia, he became homesick and the degree was too much for him and could not keep up;

    ·The applicant decided to enrol into a vocational course at Scott College but he had issues with management and did not recall his attendances correctly for one month;

    ·During this time, there were issues at home: his father was suffering because of the family business ‘had gone down’. These, in turn, affected the applicant’s tuition fees and led to his Certificate of Enrolment (CoE) being cancelled due to non-payment.

    ·The applicant had close ties with his father and the applicant was having the same depressive attitude, feeling lonely, and he had bed rest for three months;

    ·Also the applicants’ relationship with his girlfriend ended  and the applicant had an injury on his hand;

    ·The applicant’s situation also deteriorated when he developed a gambling habit.

    ·The applicant claimed he has compelling reasons and should not be punished for his misfortunes; and

    ·The applicant does not think he will do a Bachelor but wants to study a diploma.

13. A number of Certificates of Enrolments for vocational course work, including a Diploma of Hospitality, at AVETA were submitted with the NOICC response indicating that he was enrolled on 16 September 2016. There was no indication that he had enrolled in a Bachelor’s degree.[1] Also submitted were two medical documents indicating that the applicant had a medical consultation on 15 August 2016 and treatment on 24 October 2015.[2]

    [1] DIBP Folio 19-20, 23

    [2] DIBP Folio 21-22, 25

14. On 20 September 2016, the Department notified the applicant that his visa was cancelled on the same day on the grounds that the applicant had breached the 8202 condition on his visa and that the applicant had failed to satisfy s.116(1)(b) of the Act. The delegate noted that the enrolment in a diploma was issued after the date of the NOICC had been forwarded to the applicant and considered it likely that such action was undertaken to rectify his visa status.

15. The applicant has acknowledged in his correspondence with the Department that his enrolment in a course had not been in compliance and that he had not enrolled in a Bachelor’s or Master’s degree. During the scheduled hearing, the applicant further acknowledged that his enrolments were cancelled in 1 August 2015 and that no further enrolment until 16 September 2016, after the abovementioned NOICC had been issued.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 1 August 2015 until 16 September 2016, after the date of the NOICC being issued, in which he was enrolled in a vocational course of 13 months and was not a Bachelor’s or Master’s course of study from 1 August 2015 right up to date of the cancellation of this student visa. 

17. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

18. 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.

19. 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).

20. The applicant provided a copy of the delegate’s decision to the Tribunal at the time of the review applicant on 29 September 2016.

21. The Tribunal discussed the applicant’s circumstances with him during the scheduled hearing on 15 June 2017.  He was assisted by an interpreter in the English and Punjabi languages. No post hearing submission was required at the end of the scheduled hearing.  No further evidence or submissions have been provided to the Tribunal regarding the cancellation of the applicant’s student visa up to and including at the time of writing his decision.

22. The critical issues pertaining to the Tribunal’s consideration of its discretion to cancel the visa are discussed below:

    The purpose of the visa holder’s travel to and stay in Australia

23. According to the applicants’ response to the NOICC, he undertook a Bachelor’s degree based on his parents’ advice and expectations, but he wanted to complete a bachelor’s degree. According to the decision record, the delegate found the non-enrolment period of the applicant to be significant and that the purpose of not being in Australia was no longer to study. During the Tribunal’s scheduled hearing, the applicant claimed that he wanted to complete his studies, that he will not be accepted in India by his parents and that the opportunity to complete studies will affect his future. The applicant elaborated that he wanted to have relevant studies to begin an import/export in India and that he chose to study commercial cookery because it was difficult time for him to adjust to Australia. The applicant claimed that a Bachelor of Business Management was more relevant to him and he was determined to his best despite struggling with his previous studies.

24. In the light of its findings below where the applicant did credibly struggle with some matters in the past, cumulatively considered, the Tribunal accepts it be the case that the applicant has some difficulties but there is no evidence that the applicant has completed any course work or he could not have re-enrolled earlier than after the issuing of the NOICC.  Given the lack of academic progress, the admission that the applicant struggled with his Bachelor’s degree soon after arriving in Australia and the period of time he was not enrolled, the Tribunal does not accept that the applicant has the requisite combination of the capacity and aptitude to complete either a registered course or a package of registered courses pertaining either to vocational education or higher education degrees. For the same reasons, the Tribunal is not satisfied that the applicant’s oral testimony that he will try his best or is committed to establishing an import/export business in India in the future. While the Tribunal accepts that he has some very limited intention to remain in Australia to study and advance his career prospects, had he been a genuine student in the past the Tribunal would have expected greater compliance with 8202(2) and academic progress.

25. For reasons above, the Tribunal is not satisfied that the applicant is a genuine student or will uphold the conditions on any future student visa.  Accordingly, it places little weight on the applicant’s late oral claims that his travel to and stay in Australia is for the purpose of study and to advance his career, as relatedly claimed by the applicant.  

    The extent of compliance with visa conditions

26. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions other than 8202(2). The delegate decision does not record any information about further non-compliance. The Tribunal considers this significant to the question whether his visa should be reinstated. The applicant has not provided some credible explanations to both the Department and the Tribunal for this non-compliance. The Tribunal notes that the applicant applied for a further registered course after being issued a NOICC and this does not diminish the Tribunal’s concern that the applicant was not enrolled in a registered course for a considerably long period of time. The Tribunal gives this factor some weight towards the visa being cancelled.

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

27. The delegate’s decision accepted that there may be some financial and other hardships as a result of this visa remaining cancelled. During the scheduled hearing, the applicant explained that his parents will not support the applicant or any decision to begin a business in India without the relevant study and that he will not have the relevant experience in Australia which will mean he will be at a disadvantage. The applicant expressed his fears that his father will be disappointed and that it would be possible but very difficult to start life in Indian as an independent person. The Tribunal notes that the applicant would be returning to his home country as a single man without any responsibilities towards a spouse or children. Whilst the Tribunal accepts that the applicant may suffer some hardship, including emotional and financial hardship arising from his parent’s disappointment and the challenges of being an independent adult in India if the visa remains cancelled, it finds on the evidence that he has not demonstrated any significant or severe hardships. The Tribunal gives these hardship considerations little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

28. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as he was not enrolled in a registered course and had not been attending classes right up to the NOICC being issued. The applicant did not disagree with this.

29. In the applicant’s written and oral claims, he has claimed a number of extenuating circumstances that led to the grounds of his visa being cancelled. These include homesickness soon after he arrived; a relationship breakdown with his girlfriend; a gambling habit that lasted six months; a short period of time when his health was affected by treatable typhoid, a deep cut on his hand while working as a cleaner; and financial difficulties with his father’s farming enterprise. The applicant claimed that he had difficulties finishing his studies due the stress and that he lost sleep. He claimed that he took sleeping pills to assist with the ongoing stress. The Tribunal accepts all these difficulties were genuine individual extenuating circumstances leading to his non-compliance of 8202(2) imposed on his visa.

30. The Tribunal has also noted the following: According to the applicant during the scheduled hearing, the applicant’s levels of stress and consternation did not lead to the applicant’s not working on an ongoing basis. The Tribunal notes that the applicant’s specific claim about his father’s financial difficulties related to a poor rice harvest in 2015 but the applicant worked throughout this period of time he was not enrolled and he was able to re-enrol in the second half of 2016.  It also notes that it was claimed that the applicant’s short-lived gambling habit negatively affected his relation with his then girlfriend. Based on this evidence, the applicant had the financial capacity to maintain his enrolment or to re-enrol. None of these specific circumstances, in of themselves or in combination of each other, over the period the applicant was not enrolled amount to being credible barriers to maintaining enrolment in a relevant course or continuing related studies.   

31. Having considered all the relevant information, the Tribunal does not accept that either the individual, concomitant or cumulative impact of these extenuating circumstances were exceptional or amounted to being beyond the applicant control in which he was unable to maintain his enrolment or to re-enrol at a considerable earlier point in time than after the issue of the NOICC.  Based on these findings, the Tribunal gives the evidence very little weight towards the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

32. According to the decision record, there was no evidence that the applicant had been cooperative towards the Department. The Tribunal notes the applicant responded to the NOICC in a timely manner and there is no available evidence that the applicant had breached other conditions imposed on him in the past. The Tribunal gives this some weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

33. Not relevant.

    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

34. The Tribunal discussed with the applicant that the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. The applicant, neither at the scheduled hearing nor in a written submission, had not presented specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

35. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

36. The applicant said that he want to return to India, that he has no family in Australia and does not fear persecution if he returns to India. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Any other relevant considerations

37. During the scheduled hearing, the applicant was asked if there were any other relevant considerations; the applicant responded by saying that he wanted to return to India to be business person; that had learned a large and valuable lesson; and he had too much failure to date. There were no other relevant considerations in this case. The Tribunal places very little weight on these additional relevant considerations.

    Summary of considerations

38. 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.

39. The fact remains that the applicant was not enrolled for a substantial amount of time and was in breach of condition 8202(2). Although it accepted that the applicant will face some hardship if the visa remains cancelled, the Tribunal was not satisfied the hardship will amount to being significant or severe and it was not satisfied that the applicant will be a genuine student in the foreseeable future.

40. Considering the available evidence, both individually and cumulatively, and on weighing the above factors, the Tribunal has placed more weight on the cumulative findings and evidence in favour of the visa remaining cancelled than over those countervailing findings and evidence in favour of not cancelling the visa.

41. In considering the circumstances as a whole, the Tribunal concludes that the visa should remain cancelled.

    DECISION

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

    Brendan Darcy
    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.