Singh (Migration)

[2017] AATA 2527

Singh (Migration) [2017] AATA 2527 (3 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovejot Singh

CASE NUMBER:  1620674

DIBP REFERENCE(S):  BCC2016/3104507

MEMBER:Tigiilagi Eteuati

DATE:3 July 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 03 July 2017 at 1:53pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Failed to be enrolled in any course of study – Failed to seek medical treatment – Lack of will and ability to undertake registered course

LEGISLATION
Migration Act 1958, ss 116(1), 116(1)(b)
Migration Regulations 1994, Schedule 8 Conditions 8202(2) – (3)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 November 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 breached 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 3 July 2017 to give evidence and present arguments.

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

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 applicant admitted that he had not been enrolled in a registered course since 13 August 2015 and this accords with the records held by the Department.

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 December 2013 to study information technology (IT) courses leading to a Bachelor of Information Technology at QUT. The applicant said that he was finding the IT courses very difficult and was failing some units. He said that the institute where he was studying his initial IT courses closed in July 2014 and he had to find alternative courses. He said that he approached a migration agent who advised him that he could enrol in a Diploma course at Spencer College. The applicant claimed that the agent said that he would enrol the applicant in a Bachelors degree but failed to do. Instead the applicant enrolled in four diplomas in business and management with Spencer College which were to be completed in March 2017 (the Tribunal notes that had the applicant’s visa not be cancelled his visa would have expired in August 2017).

14. The applicant claimed that he completed a Diploma of Business in February 2015. He said that, after he completed his first Diploma he began a Diploma of Management in March 2015. He said that his agent had not obtained a Bachelors degree COE and so he did not pay his tuition fees for the Diploma of Management and ceased studying in July 2015. In August 2015 his remaining enrolments were cancelled. He said that at this stage he was depressed and faced a state of uncertainty because of his agent’s failure to secure a Bachelor degree COE. He said that he knew that he was breaching the conditions of his visa as he knew that he needed to be enrolled in a registered course. The applicant said that he made enquiries himself with education institutions but was unable to obtain a COE for a Bachelors degree course. He said that he found out that other students were having their visas cancelled because of their failure to remain enrolled in registered courses and that this added to his depression which in turn was a factor in his not being enrolled.

15. The applicant said that since he stopped studying in July 2015 he has not worked and that he has been supported by his friend and his girlfriend. He said that his parents know that he has not been studying since mid-2015.

16. The Tribunal raised its concern that, given that the applicant had been failing some of his units in his IT course and given that the applicant had ceased studying in July 2015, the applicant may not have the desire or the ability to successfully complete a higher education course. The Tribunal indicated that the applicant’s failure to seek any medical or psychological treatment for his depression added to this concern.

17. The applicant said that his family did not believe in seeking medical attention to deal with depression. He said that if his visa was re-enlivened that he would enrol in a Bachelors degree and would apply for another visa to complete the degree. He said that he had made a mistake in the past and simply needed another chance to complete his studies in Australia.

18. The applicant indicated that he and his family members would suffer hardship if his visa remained cancelled. He said that his parents had paid a significant amount of money for his tuition in Australia. He said that his family would be shamed if he were to return to India without a Bachelor’s degree.

19. The Tribunal asked the applicant why he could not complete tertiary studies in India. The applicant said that tertiary qualifications from Australia were considered better than Indian qualifications and that gaining an Australian qualification would put him in better stead to find a good job in India.

20. The Tribunal finds that it was the applicant’s responsibility to be aware of the conditions of his visa and to comply with those conditions. The applicant admitted that when he changed courses he knew that he was in breach of the conditions of his visa as he was not enrolled in a Bachelors degree. The applicant had every opportunity to seek enrolment in a permissible course of study but has failed to be enrolled in any course of study from August 2015. He could have sought the assistance of a different migration agent when he realised that his agent had failed to enrol him in a Bachelors degree course. However, he did not do these things and instead withdrew from all courses and has remained in Australia for some two years without being enrolled in any course of study.

21. The Tribunal finds that, given the applicant’s poor academic performance and his failure to even remain enrolled in a course since August 2015, the applicant does not have the desire or ability to successfully complete a higher education course in Australia.

22. The Tribunal accepts that the applicant’s depression contributed to his decision to not be enrolled in a course. However, the fact that the applicant has not sought any treatment for his depression and has not indicated any willingness to do so strengthen the Tribunal’s view that the applicant does not have the desire or ability to successfully complete a higher education course in Australia.

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 any registered courses 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, these difficulties are of the applicant’s own making. The applicant had every chance to study the courses for which he was sent to study and did not do so.

24. In any event, the Tribunal finds that the applicant’s lack of will and ability 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 Class TU 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.