SINGH (Migration)

[2017] AATA 245

SINGH (Migration) [2017] AATA 245 (8 February 2017)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURPREET SINGH

CASE NUMBER:  1606700

DIBP REFERENCE(S):  BCC2016/942969

MEMBER:Rachel Westaway

DATE:8 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 February 2017 at 10:39am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Enrolment in a registered course – Applicant unaware of cancellation – Homesickness – No compelling or compassionate circumstance

LEGISLATION

Migration Act 1958, s 116(1)(b)

Migration Regulations1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 May 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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 was not enrolled in a registered course of study since 1 December 2014. He was invited to respond to a Notice of Intention to Consider Cancellation dated 18 April 2016. He requested an extension and was granted 5 working days. The applicant did not provide any response to the NOICC. 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 18 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant supplied the Tribunal with a letter of offer from Australia Study Link Institute for a place in the Diploma of Marketing and Communication dated 15 November 2016.

4. 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

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. At hearing, the applicant confirmed the dates that he was granted the visa and confirmed he had received the notice of intention to consider cancellation letter.

9. He stated that he missed a few classes and he was not aware that they had cancelled his visa.

10. The applicant confirmed that he was not enrolled in a registered course of study since 1 December 2014. Records from PRISM available to the Tribunal also confirm the applicant was not enrolled in a registered course of study.

11. He stated that he first came to Australia in November 2006. He came on a student visa. He studied hairdressing. He completed the course. He then did a Diploma in Management. He claims to have completed this course. He then enrolled in the Diploma of Marketing. This is when his visa was cancelled. He stated that his enrolment was cancelled as he missed a few classes. He said that he missed classes because he was feeling sick. He was feeling homesick and he was having tensions because he was feeling lonely. His friends had moved to other cities in Australia.

12. He has not returned to India since being in Australia because of financial problems.  His confirmed that his mother is in India and he has no contact with his father. He stated that he has no children or partner. The Tribunal asked the applicant why he did not return to India and reapply for another visa.

13. Tribunal explained that the breach is significant given two years have passed and he is not enrolled in a registered course of study and that he came in 2007. The applicant stated that he was homesick. The Tribunal stated that he would have been homesick in the early days of arrival in Australia and he managed to remain in a registered course of study and not breach conditions on his visa.

14. He stated that he has paid his fees and has applied for a course and wants to study again. The Tribunal explained that given the significance of the breach this carries little weight.

15. When asked what he did in 2015 when he wasn’t studying he stated “nothing special”. He claims he would attend classes but not regularly.

16. He was asked how he could attend when he wasn’t enrolled in the course. The applicant did not respond.

17. The applicant stated that he had a certificate of enrolment from the Institute and it was renewed again with South Pacific Institute. Asked when this occurred he stated that he does not remember the date. He stated that the new COE was for an Advanced Diploma. He stated he paid fees. He was asked if he completed it and he said no so he did not receive a certificate.

18. The applicant was asked if cancellation of his visa would cause hardship on him and his family. He stated after the course he would like to take on a good job and he needs the qualifications.

19. He confirmed that there were no international obligations that need to be considered. The Tribunal explained to the applicant what this might entail and he understood.

20. The Tribunal asked the applicant if there were any compelling or compassionate circumstance he would like the Tribunal to consider when making the decision. The Tribunal explained what this could entail such as illness. The applicant stated no.

21. The Tribunal stated that it had not made up its mind but there was limited evidence to support his case. The applicant stated that he really would like to complete studies and get a good job. He said he is alone.

22. 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

23. 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.

24. 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).

25. The applicant has provided limited information regarding the reasons why he did not remain in a registered course of study. He was asked and provided limited reasons why the Tribunal should use its discretion in this matter. The applicant stated that he would like to obtain his qualifications so he can obtain employment and that he is alone. Whilst the Tribunal accepts that the cancellation of a visa would cause some hardship on the applicant and his mother, the breach of the condition is significant and the reasons why the applicant did not attend classes were not strong. Whilst the Tribunal noted the applicant stated he was homesick, he had been in Australia for a significant period of time prior to the breach and had managed to remain in a registered course of study. The Tribunal does not accept this as a strong reason for the breach. The applicant was unable to provide any relevant details about what he did when he was not attending his courses. The applicant in general provided limited information which the Tribunal could use in considering whether to use its discretion.

26. The Tribunal has considered all of the factors available to it and is satisfied that the grounds for cancelling the visa outweigh the grounds for not cancelling the visa.

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

    DECISION

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

    Rachel Westaway
    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.