UPINDER SINGH (Migration)

[2019] AATA 1634

UPINDER SINGH (Migration) [2019] AATA 1634 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr UPINDER SINGH

CASE NUMBER:  1703618

HOME AFFAIRS REFERENCE(S):           BCC2017/129911

MEMBER:Wendy Banfield

DATE:20 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2019 at 8:47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-compliance – unsatisfactory attendance – insufficient funds to pay for tuition fees – 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 20 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of India and is currently 26 years old. He came to Australia in 2015 to study a Diploma of Business leading to a Bachelor degree. The applicant commenced the Diploma course but was unable to complete it due to unsatisfactory attendance. Thereafter the applicant was unable to continue his studies as he was not allowed to submit assignments and according to the education provider, was required to pay tuition fees. The applicant was working in order to obtain the funds for his studies but this in turn led to a poor attendance record.

3. The delegate cancelled the visa on the basis that the applicant had not been enrolled to study from 16 May 2019 to 23 January 2017 when a Notice of Intention to Consider Cancellation was sent. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 13 May 2019 to give evidence and present arguments.

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

   The hearing

6. The applicant gave evidence that he came to Australia in 2015 to study business related subjects. According to his evidence, he enrolled in a six month Certificate IV in Business which he completed successfully and then enrolled in a Diploma of Business. The applicant claimed he began to experience problems due to a change in training staff as well as his failure to attend his course on a regular basis.  

7. The applicant described a situation where he was warned about unsatisfactory attendance by his education provider which led to him being unable to submit assignments for assessment. The applicant claimed his work and study schedule “came together” which was the reason for his poor attendance. When reminded that he was required by the terms of his Student Visa to prioritise study over work and maintain attendance, the applicant said he had been working in order to pay his ongoing tuition fees.

8. The applicant said he was told by his college that there would be a workshop he could attend but he was still not permitted to submit assessment material. He said the requirement to pay tuition fees was stressful and he did not know how he could pass the course. After his enrolment was cancelled the applicant said he tried to communicate with the course provider and re-enrol. He said he was not awarded the Certificate IV because he had not paid. This meant to he could not enrol with another institution either.

9. According to the applicant he had not seen the Notice of Intention to Consider Cancellation (NOICC) from the Department because he had not been active on his email. For this reason he had not provided any response prior to his visa being cancelled. During the hearing the applicant was asked to explain why he was claiming his visa should not be cancelled. The Tribunal accepted the applicant came to Australia with the intention of studying. Regarding any compelling need to stay in Australia, the applicant stated he still wanted to study Business and do an internship in order to run the family grocery business in India. He said he had complied with other visa conditions and he would face hardship if his visa is cancelled. It was claimed it would be difficult to face family after four years in Australia and he did not want to depart not having completed his studies. The applicant was advised about the consequences of his visa being cancelled and his said leaving Australia under those conditions would be hard for him. He said he would not be able to study in his home country and overseas qualifications would be beneficial to his future.

10. 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

11. 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?

12. 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).

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

14. The applicant conceded he had not been enrolled to study from 16 May 2016 to 23 January 2017 and there were grounds for cancelling his visa. Therefore, 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

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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’

    ·     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

16. The applicant gave evidence that he came to Australia to study Business and had enrolled in a Certificate IV and Diploma course in that field. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

17. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant submitted he still wanted to study in Australia, complete an internship to obtain experience and return to India to help his family’s business. The Tribunal has considered the applicant’s wishes but does not find a sufficiently strong or compelling need for him to remain in Australia.

18. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

19. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

20. The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. During the hearing the applicant claimed he would suffer hardship if he were required to leave Australia and return to his home country without any qualifications because an overseas education is valued. The applicant stated he still wanted to study Business and return to India in future to help with the family grocery business.

21. The Tribunal accepts there would be some degree a hardship caused to the applicant if his visa is cancelled. This is because the applicant advised he has already paid an amount of $3,000 towards his studies but has been unable to complete his education or obtain any results. While this is unfortunate, it is the applicant’s lack of attendance that led to cancellation of his visa and the applicant was aware of his obligation to study while holding a Student Visa. No evidence was provided as to any other type of hardship that the applicant would suffer as a result of this visa cancellation and the Tribunal places limited weight on any hardship that would be caused.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

22. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student Visa but did not continue his studies for more than 8 months. The applicant provided some explanation for discontinuing his studies and not maintaining enrolment as required by the conditions of his visa. The applicant advised he had completed a Certificate IV in Business and was enrolled in a Diploma of Business however, he received notification from the college about unsatisfactory attendance and as a result, he was unable to submit assignments for assessment. When asked to explain why he had a record of poor attendance the applicant said it was because his work and study schedule clashed. The applicant acknowledged that study should have been his priority but said he had been working as a cleaner to pay his college fees.

23. According to the applicant he had meetings with his the education provider and his teachers but was unable to continue studying because of his lack of attendance. In addition the applicant said he was unable to obtain his study results because he had outstanding tuition fees. He claimed that this meant he could not enrol with another education provider.

24. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to attend college or rectify his situation during the period when he was not enrolled to study, in breach of visa conditions. Based on the applicant’s evidence he had to prioritise work over study in order to pay for his tuition but this resulted in his record of attendance being deficient. It is the responsibility of the applicant to ensure he has sufficient financial resources to pay for and attend his nominated course of study while holding a Student Visa and therefore, the Tribunal places no weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

25. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

26. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

27. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

28. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

29. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

30. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

31. The Tribunal has considered the applicant’s circumstances individually and cumulatively in this case and finds that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled. As stated, it is the responsibility of visa holders to ensure they have sufficient funds to pay for their studies. The need to work to try and obtain the funds to pay fees is not an acceptable reason for failing to maintain enrolment.

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

    DECISION

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

    Wendy Banfield
    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.