SUKHBIR SINGH (Migration)

[2020] AATA 601

SUKHBIR SINGH (Migration) [2020] AATA 601 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUKHBIR SINGH SUKHBIR SINGH

CASE NUMBER:  1930747

HOME AFFAIRS REFERENCE(S):          BCC2019/3220421

MEMBER:Amanda Pearson

DATE:2 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 March 2020 at 8:57pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – death of relative – completed lower qualification – no intention to complete higher qualification – wants to open automotive business – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s. 116(1)(b) of the Migration Act 1958 on the basis that the applicant has not complied with a condition of 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 appeared before the Tribunal on 28 February 2020 to give evidence and present arguments.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b) of the Migration Act 1958. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance the applicant has not complied with subclause (2)(b) of condition 8202 attached to the applicant’s visa . This condition requires (in part):

8202
(1) The holder must be enrolled in a full-time course of study or training if the holder is:

(a) a Defence Student; or

(b) a Foreign Affairs student; or

(c) a secondary exchange student.

(2) A holder not covered by subclause (1):

(a) must be enrolled in a full-time registered course; and

(b) subject to subclause (3), must maintain enrolment in registered course that, once  completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

[..]

(3)  A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

      (a)   is enrolled in a course at the Australian Qualifications Framework level 10; and

(b)   changes their enrolment to a course at the Australian Qualifications Framework level 9.

7.    The applicant is not a Defence, Foreign Affairs or Secondary Exchange student and therefore is not covered by subclause (1): therefore, subclause (2) applies to the applicant. Paragraph 2(b) states that the applicant must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

8.    The applicant’s student visa was granted in relation to a Master of Information Technology at the University of Queensland from 19 February 2018 to 29 November 2019. The highest Confirmation of Enrolment (‘CoE’) in relation to which the visa was granted was a Master of Information Technology which, once completed, would provide a level 9 (Master Degree) qualification from the Australian Qualifications Framework (AQF).  Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicates that on 19 February 2019 the applicant’s enrolment in the Master course was cancelled by the education provider.  On 3 January 2019, the applicant obtained enrolment in Certificate III in Light Vehicle Mechanical Technology through Australian Health and Management Institute Pty Ltd.  This enrolment is at ACF Level 3 (Certificate III). As the applicant has not been enrolled in a course at the AQF Level 9 (Master Degree) or Level 10 (Doctorate Degree), the circumstances of clause 8202(3) do not apply to the applicant.

9.    On this basis, the applicant has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which the applicant’s visa was granted.

1. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. On 28 February 2020 the applicant provided the Tribunal with the following documents to support his case:

   ·   The applicant’s Certificate III in Light Vehicle Mechanical Technology from the Australian  Health and Management Institute dated 20 January 2020;

   ·   An academic transcript for the applicant in relation to the Certificate III in Light Vehicle Mechanical Technology course that the applicant completed at the Australian  Health and Management;

   ·   A death certificate dated 6 September 2018 in relation to the applicant’s grandfather, Ajit Singh; and

   ·   A confirmation of enrolment for a Certificate IV in Automotive Mechanical Diagnosis course for the period from 3 February 2020 to 2 August 2020.

Background evidence taken at hearing

1. The applicant arrived in Australia in February 2018.  He was born in India on 22 April 1995 and is 24 years of age.  He is single and does not have any children.

2. In relation to his family background, the applicant informed the Tribunal that his parents live in Punjab, India. His father is a farmer and his mother is a housewife. He has an older brother who works in a laboratory in India and another brother who works in Sydney and is employed by Woolworths supermarket as a contractor. 

3. The applicant is currently living in Sydney. 

4. Prior to coming to Australia, the applicant completed a Bachelor of Science at Kurushepra University, India and then assisted his father as a farmer in respect to his father’s farming business.

5. The applicant explained to the Tribunal that he came to Australia from India to gain an overseas higher education qualification. The applicant confirmed with the Tribunal that he initially came to Australia for the purpose of undertaking a Master of Information Technology course. He stated to the Tribunal that he did not complete this course because he found it difficult studying in Brisbane as he knew no one and felt isolated. 

6. He told the Tribunal that he subsequently moved to Sydney to be closer to his brother. He completed a General English course on 7 May 2018. The applicant also told the Tribunal that he then enrolled in a Master of Business Administration course.

7. The applicant told the Tribunal that he did not complete the Master of Business Administration course. He claimed that whilst he commenced this course he found it difficult to concentrate because his grandfather, who he was extremely fond of, died on 5 September 2018. The death certificate that the applicant produced to the Tribunal confirms that the applicant’s grandfather passed away on 5 September 2018. The Tribunal does not dispute that the death of his grandfather must have been a difficult time for the applicant.

8. The applicant did not complete any subjects from his Master of Business Administration course.

9. The applicant also told the Tribunal that after the death of his grandfather, he consulted with a migration agent prior to ceasing in February 2019 the Master of Business Administration course.  The applicant explained to the Tribunal that the migration agent advised him that if chose to transfer from the Master of Business Administration course into the Certificate III in Light Vehicle Mechanical Technology course, that there would not be no repercussions in respect to the applicant’s student visa. The applicant subsequently ceased studying his Master of Business Administration on 19 February 2019 which triggered a cancellation of his student visa.

10. The applicant confirmed that he completed a Certificate III in Light Vehicle Mechanical Technology course on 20 January 2020 from the Australian Health and Management Institute.

11. The applicant told the Tribunal that he commenced in early February 2020 a Certificate IV in Automotive Mechanical Diagnosis at the Australian Health and Management Institute and anticipates to complete this course by 2 August 2020.  He also told the Tribunal that after completing such course he wishes to complete a Diploma of Automotive Mechanical Diagnosis at the same institution so as to follow in his grandfather’s footsteps by operating an automotive business in India.  He told the Tribunal that his grandfather had operated a successful automotive business in India and that his grandfather had also wanted him to obtain a higher education qualification from Australia. 

12. The applicant’s dream is to be like his grandfather: to operate an automotive business in India.  He also wishes to return to India by 2021 and live close to his parents.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. The applicant explained in the hearing that he wanted to have a good education which would set him up in India and make his family, especially his grandfather, proud as they wanted him to come to Australia to obtain an overseas higher education qualification. He told the Tribunal that if his visa was cancelled, that it would be very difficult for him because his dream of opening a business in the automotive field in India would not be fulfilled. He stated to the Tribunal that because his grandfather was very close to is heart, that he would be disappointed if he could not continue with his studies in Australia.   

2. The Tribunal gives some weight to the applicant’s stress and pressure he may feel if he has to return to India. The Tribunal appreciates the significance of obtaining a student visa for the applicant and his family, but it does not operate to ameliorate the applicant for a lack of completing at least a Master degree in Australia together with prioritising his Masters studies and focusing on completing the same in Australia.

The extent of compliance with visa conditions

1. The applicant has stated that he has complied with all other conditions on his visa.  There is nothing before the Tribunal to indicate that this is not the case.

2. The Tribunal gives some weight in favour of the applicant with not cancelling the visa, however it remains mindful that it is expected that all visa holders adhere to the conditions on their visa.

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

1. The applicant explained that if his visa is cancelled, then it will cause him considerable disappointment because his dream to open an automotive business in India and follow his late grandfather’s footsteps, will be destroyed. He stated that if his visa is cancelled and he cannot study then this will disappoint his parents as his future will be ruined if he is not able to study in Australia because he will only be able to work as a farmer on his father’s land. 

2. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

3. The Tribunal also accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing.  However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of not completing the appropriate qualification that the applicant was required to complete in Australia, that being a Master Degree of higher degree and not a Certificate III, IV and or Diploma level course.  It is not appropriate for the applicant to get the benefit of relying on a student visa for the purpose of obtaining a qualification that does not meet the conditions of his student visa.  It is also not satisfactory for the applicant to decide upon what qualifications he should obtain albeit even when stating to the Tribunal that his received incorrect advice from his migration agent.  The applicant told the Tribunal he is now aware that he was required as a condition of his student visa, to complete a Master degree in Australia or higher qualification, and he has not rectified the breach as he has chosen to complete a course that is below the AQF Level 9.  Furthermore, the Applicant has told the Tribunal he does not wish to complete any courses in the future in Australia that are ACF Level 9 or higher. Whilst appreciating the hardship the applicant and his Indian family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.

Circumstances in which ground of cancellation arose.

1. The applicant told the Tribunal that he did not complete his Master of Technology in Brisbane because he had no family or friends living there at that time.

2. He told the Tribunal that he then moved to Sydney where he completed a General English course on 7 May 2018. The applicant subsequently enrolled in a Master of Business Administration in August 2018.

3. The applicant claimed that his grandfather died on 5 September 2018 and that he found his death very hard because he was extremely close to him.  He told the Tribunal that he did not complete any subjects from his Master of Business Administration course because he could not concentrate on his studies due to his grandfather’s death.

4. The applicant testified that, with consultation with a migration agent, he ceased studying his Master of Business Administration course in February 2019 and enrolled in a Certificate III in Light Vehicle Mechanical Technology at the Australian Health and Management Institute Pty Ltd.  The applicant told the Tribunal he has completed this course and has now commenced a Certificate IV in Automotive Mechanical Diagnosis at the same institution.  He also told the Tribunal that he plans to complete a Diploma in Automotive Mechanical Diagnosis at the Australian Health and Management Institute Pty Ltd.  The applicant testified to the Tribunal that he does not intend to complete a Master or higher qualification in Australia.

5. The Tribunal acknowledges that the applicant has stated he wishes to continue with his studies in Australia.  The Tribunal has given some weight to his claim that he experienced difficulties with his studies because of his grandfather’s death.  However, the applicant has not completed a Master course or a higher qualification (Doctorate) in Australia and does not intend to complete such courses in Australia if he is permitted to stay in Australia albeit knowing this is a condition of his student visa. The Tribunal does not accept this equates to a compelling need to remain in Australia. The Tribunal accepts that adverse personal circumstances may have caused the applicant pressure and stress. The Tribunal also accepts that the applicant initially received poor advice from his migration agent.  Yet, the applicant is fully aware that it is a condition of his student visa to complete a Master course and of a higher qualification in Australia.  The Applicant has not provided any reason to Tribunal as to why he does not intend to complete such a course in Australia in order to comply with his student visa.  Student visas are granted for the purposes of studying and achieving a qualification in accordance with the conditions of the visa.  Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach. 

Past and present behaviour of the visa holder towards the Department

1. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

   
   
   

Whether there would be consequential cancellations under s.140

1. This is not relevant to the applicant.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

1. In the event that the applicant’s visa is cancelled, he would need to obtain a bridging visa to ensure he is lawful until he makes arrangements for his departure. The applicant could also seek migration advice.

2. The Tribunal appreciates that the applicant would face a three year exclusion period and would need to ensure his immigration status was lawful, however these are natural consequences of a cancellation and as such, the Tribunal gives minimal weight in favour of the applicant.

Australia’s international obligations

1. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations.  The Tribunal places no weight on this in favour of the applicant.

   
   
   

Any other relevant matters

1. This is not relevant to the applicant.

2. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s student visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Amanda Pearson
Member