VIKRAMJIT SINGH (Migration)

[2018] AATA 1031

VIKRAMJIT SINGH (Migration) [2018] AATA 1031 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VIKRAMJIT SINGH

CASE NUMBER:  1728371

DIBP REFERENCE(S):  BCC2017/3756431

MEMBER:Mr S Norman

DATE:15 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 March 2018 at 4:45pm  

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Not enrolled in a registered course – Degree of hardship – Hostile relationship with family –Did not discuss any compassionate or compelling circumstances with education provider – No longer a genuine student

LEGISLATION
Migration Act 1958 ss 48, 189, 198, 116
Migration Regulations 1994 Schedule 4 Criterion 4013 Schedule 8 Conditions 8202

CASES
COT15 v MIBP (No. 1) [2015] FCAFC

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 November 2017 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was found to have breached condition 8202(2) - enrolment. 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 15 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife (Ms Simran Kalsi). The applicant was represented in relation to the review by his registered migration agent.

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. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 11 July 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 18 October 2017, the applicant was advised that based on information available in the Provider Registration and International Student Management System (PRISMS), it appeared that they had not been enrolled in a registered course of study since 3 July 2017. Further, that it therefore appeared the applicant did not meet the requirements of condition 8202(2)(a) and that his Student visa may be cancelled pursuant to s.116(1)(b) of the Act.

9. In the applicant’s response, he lodged a (then current) letter of offer and also evidence of completion of studies in Australia between 31 October 2014 and December 2015. However the non-compliance with condition 8202(2) was not disputed. Further correspondence with the applicant’s migration agent is also noted. At the Tribunal hearing, the applicant did not dispute that non-compliance with condition 8202(2) occurred.

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. 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).

12. Regarding the applicant’s purpose for travelling to and residing in Australia, on 11 July 2014 the applicant was granted a Student visa on the basis that inter alia they were to maintain enrolment in a registered course of study; with no more than a two month gap. That being said, after arriving in Australia shortly after the grant of his Student visa, the applicant did complete the following courses:

    ·English for Academic Purposes (finished 31/10/2014)

    ·Certificate IV in Marketing (finished 19 June 2015)

    ·Diploma of Business (finished 18/12/2015)

    ·Advanced Diploma of Business (finished 16/12/2016).

13. Consequently, the Tribunal is satisfied the applicant’s intention when he travelled to Australia was for the purposes of study.

14. Regarding the extent of the applicant’s compliance with any conditions to which his visa was subject, the applicant had not complied with condition 8202(2)(a). The Tribunal notes that Student visa holders are advised that they must maintain enrolment in a registered course of study for the duration of their visa, and without more than a two month gap. The applicant had not been enrolled in a registered course of study for over three months at the time of the NOICC letter (being 18 October 2017); and at hearing he confirmed he had not studied in Australia since early 2017.

15. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, at hearing the applicant explained he had come to Australia to study and it would be humiliating for him to return to India without a degree. He wished to study to ensure he could find better paid work in India. The Tribunal accepts this is correct. However, for reasons set out below, his current relationship with his family in India was very strained.

16. Regarding the circumstances in which the ground for cancellation arose, such circumstances occurred when the applicant failed to maintain enrolment in a registered course of study. At hearing, the applicant explained that he married his wife (the witness at hearing) on 24 October 2016. His family and his wife’s family (both of whom reside in Haryana state in India) did not approve of the marriage as they are from different castes. The applicant and his wife did not believe this should be an impediment to their relationship and subsequent marriage. Since that time, the applicant (and his wife) had spoken to their families (on occasion), and those discussions were increasingly hostile and unpleasant. This hostile relationship with their families, commenced prior to the marriage in October 2016 and continued up till the time of the Tribunal hearing. As a result, the applicant was stressed and depressed and did not know what to do. He therefore conceded that he actually stopped any studies in Australia in early 2017 (ie before his enrolment ceased).

17. At hearing, and after warning the applicant he could seek further time to respond (and no such request was made), the Tribunal noted that the PRISMS records indicated that his: 

    ·     Bachelor of Business was cancelled on 7/07/2016 as he did not commence his studies;

    ·     Bachelor of Business was varied on 11/05/2017 as he changed his student enrolment;

    ·     Bachelor of Accounting was varied on 1/06/2017

    ·     Bachelor of Accounting was cancelled on 3/07/2017 for non-payment of fees.

18. The Tribunal then put to the applicant (words to the effect) that subject to his comments, this would be the reason, or part of the reason, for affirming the decision under review, as the Tribunal may not accept he was now a genuine student. The applicant again referred to the problems with his and his wife’s families, his stress and depression. He also said that in early August 2017, he injured his toe (and this injury impacted him for two weeks); and in late August 2017, he fractured his elbow (and his arm was in plaster for one month).

19. However, both injuries occurred when the applicant had been employed in paid work (though it was claimed he had not worked since around October 2017 – and now his wife works irregularly but the applicant was still able to obtain some funds from a relative in Melbourne). Around November 2017, the applicant was also detained in Villawood Immigration Detention Centre (VIDC). The applicant and his wife said the applicant was stressed and depressed during this time and while being detained (for around 25 days), he would only speak to his wife. In all this time, the applicant did not seek any medical assistance – even when he was detained in VIDC.  Therefore, and even though the applicant claimed he did not know what to do and was depressed during this time, this did not prevent him from working in Australia, up till at least October 2017. The Tribunal is therefore not satisfied the applicant’s mental state prevented him from continuing his studies in Australia.

20. When asked at hearing whether he had contacted his education service provider to discuss any compassionate or compelling circumstances, attended any relevant medical service, or returned to India in order to recuperate prior to returning to his studies – the applicant conceded he had not.

21. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal.

22. Regarding whether there are persons in Australia whose visa/s would or may be cancelled if the applicant’s visa is cancelled, based on the evidence before the Tribunal there are no persons in Australia whose visas would or may be cancelled if the applicant’s visa is cancelled. The Tribunal notes that at hearing it was explained that the applicant’s wife travelled to Australia independently of the applicant and she was granted her Student visa, independent of the applicant. Be that as it may, the Tribunal notes that if the applicant is required to depart Australia, he may (at least for some limited time) be required to live separately from his wife.

23. Regarding any legal consequences that may arise from the cancellation of the applicant’s Student visa, if his visa is cancelled the Tribunal accepts the applicant or his family may be subject to some financial hardship. If his visa is cancelled he may also then become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant will be subject to indefinite detention (the Tribunal notes he was previously released from VIDC on a Bridging visa). I am also satisfied he could again apply for a Bridging visa in Australia (should that be necessary) and be entitled to remain in the community to organise his affairs prior to departing.

24. Further, if the applicant’s visa is cancelled he would be subject to s.48 of the Act, meaning he would have limited options for applying for further visas in Australia and may be required to return to India. He would also be subject to Public Interest Criterion 4013, meaning he may have to wait a three-year exclusion period. However the Tribunal understands these are some of the intended consequences imposed by parliament, and in this case they do not prevent the Tribunal from affirming the decision under review.

25. Regarding whether Australia has international obligations that would or may be breached as a result of cancelling the applicant’s visa, the applicant did say he was part of an inter-caste marriage which was not approved by his or his wife’s family. The Tribunal notes the FFC has previously upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to (possible) non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a Protection visa.[1] The Tribunal understands each case may need to be considered according to its merits, however in the present case, I am satisfied that such claims could be better canvassed in an alternate visa application.

    [1] COT15 v MIBP (No. 1) [2015] FCAFC, North, Collier & Flick JJ, 22 December 2015.

26. The Tribunal notes the applicant had lodged with the Department a Letter of Offer but that this was obtained after the NOICC was issued. This was also subject to the applicant meeting certain conditions; such as English language proficiency and proof of previous compliance with his visa conditions. There was no information that the applicant’s enrolment had been accepted. Again as already stated herein, the applicant conceded he had not studied in Australia since early 2017.

27. Finally, at hearing the applicant did appear to be stressed. However, and with the assistance of his wife and after considering his evidence at hearing, the Tribunal is satisfied he was given a real opportunity to put evidence and submissions in support of his case.

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

    DECISION

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

    Mr S Norman
    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.