SINGH VIRK (Migration) [2019] AATA 2851 (24 June 2019)

Last Updated: 23 August 2019

SINGH VIRK (Migration) [2019] AATA 2851 (24 June 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr HARPREET SINGH VIRK

CASE NUMBER: 1702887

HOME AFFAIRS REFERENCE(S): BCC2017/130045

MEMBER: Wendy Banfield

DATE: 24 June 2019

PLACE OF DECISION: Sydney

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

Statement made on 24 June 2019 at 4:41pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend a previous scheduled hearing – SMS failed to deliver – given a new hearing date – postponement declined – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no academic plan or future goals – length of non-enrolment – circumstances giving rise to non-compliance – family affected by natural disaster – financial difficulty – failure to take reasonable steps to mitigate situation – responsibility to comply with visa conditions – 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 9 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 2014 to undertake studies in the higher education sector. The applicant was enrolled in a Certificate IV and Diploma of Business and a Bachelor or Business but did not continue enrolment in the degree course. The applicant did not study for a period of 8 months in breach of visa conditions before his visa was cancelled by the Department.
3. The delegate cancelled the visa on the basis that the applicant had not complied with a condition of his Student Visa as he had not maintained enrolment in a course of study. The issue in the present case is whether ground for cancellation is made out, and if so, whether the visa should be cancelled.
4. Prior to the hearing the applicant did not submit any written evidence; however, he provided submissions to the Department which has been taken into account in this decision. The evidence included a written submission dated 6 February 2017 as well as the following:

Photographic and other evidence regarding issues affecting the applicant’s family in India

5. Photographic evidence of crop damage as well as house damage and reconstruction; photos said to indicate the applicant’s decline in health; medical certificates dated 31 January and 3 February 2017 for the applicant’s father; letter from the applicant’s father to Sub-District Magistrate requesting a loan.

Confirmation of Enrolment (COE) evidence regarding the applicant’s education history in Australia

6. COE for a Certificate IV in Business, from 17 July 2014 to 30 December 2014 with TAFE NSW; COE for a Diploma of Business from 8 June 2015 to 6 December 2015 with ALIF Australia; COE for an Advanced Diploma of Leadership and Management from 11 July 2016 to 16 June 2017 with Group Colleges Australia (GCA); Revised COE for a Bachelor of Business from 17 July 2017 to 5 June 2020 with GCA; COE for a Bachelor of Business from 7 march 2016 to 8 February 2019 with GCA; COE for a Diploma of Business from 2 February 2015 to 30 June 2015 with TAFE NSW; COE for a Bachelor of Business and Commerce from 27 July 2015 to 31 July 2017 with University of Western Sydney.

Other evidence regarding the applicant’s studies in Australia

7. Letter from Australis Institute of Technology and Education dated 3 February 2017 advising the applicant has completed Diploma of Business; email trail between University of Western Sydney and the applicant dated between 19 May and 4 June 2015 advising his COE has been cancelled; GCA Course Transfer Application (not dated, application only); GCA receipt for fees paid in the amount $2190.01 dated 23 March 2016; Commonwealth bank receipt in the amount of $146.25 paid to GCA Management Services; letter of offer from Australis Institute of Technology and Education dated 3 February 2017 for course Advanced Diploma of Business course date; 13 Feb 2017 to 11 Feb 2018.

Medical evidence

8. Letter from Plumpton Medical Centre dated 4 February 2017 stating the applicant attended the clinic and claims to be depressed; letter from Plumpton Medical Centre dated 4 February 2017 stating the applicant is depressed and unfit for school from 9 March 2016 to 4 February 2017; referral (unknown to whom) from Plumpton Medical Centre dated 4 February 2017 stating the applicant is suffering from depression and requires counselling; Plumpton Medical Centre Tax invoice dated 4 February 2017; copy of prescription for Cipramil in the applicant’s name.

Evidence in relation to the applicant’s business activities in Australia

9. Certificate of completion to Wazir Singh for a Safety and Awareness Course dated 21 May 2015; Statement of Attainment to Wazir Singh for Work Safely in the construction Industry dated 23 February 2016; Subcontracting checklist; Certificate of Registration of a Company; Certificate of completion to the applicant for a Safety and Awareness Course dated 30 July 2015; Construction Card issued to the applicant on 27 June 2014; Statement of attainment for the applicant for First Aid dated 11 November 2015; Statement of attainment for the applicant for CPR dated 2 July 2014; Statement of Completion for the applicant for Asbestos Awareness dated 10 November 2015; Statement of Completion for the applicant for Confined Space Awareness dated 11 November 2015; Statements of Attainment for Harmeet Singh having attained units as part of Certificate III in Telecommunications dated 24 June and 27 June 2014; Statement of attainment for Wazir Singh issued 5 August 2015; email from the applicant to the Indian Consulate dated 23 August 2016 requesting assistance.
10. The applicant appeared before the Tribunal on 5 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
11. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

The hearing

12. The applicant was asked why he had not attended a previous hearing. The Tribunal noted that when contacted about his failure to appear, the applicant had said he was unwell and out of the state. He conceded he did not provide any evidence regarding his failure to attend an earlier hearing date. He said he was stressed and did not know what to do. The Tribunal advised the applicant he had only been given a new hearing date because the SMS messages sent to him failed to deliver but his request for a postponement after that date had been denied since he has had ample opportunity to present evidence in his case. The representative indicated the applicant had wanted to submit further evidence and there would be a request to do so post-hearing.
13. The applicant advised he came to Australia in 2014 and was enrolled in a Certificate IV and Diploma in Business. He said when he started at TAFE, he felt it was a bit hard being far from home and as a result, he did not pass the course. He thought it would be better to enrol in a different college but there were issues in India with his family farm that is near the Nepal border. The applicant said his family lost crops in a flood in April 2015 and there were financial difficulties. He said he did not know he could postpone his studies to deal with his situation but he agreed he was not enrolled at the time. For this reason he could not get help from his education provider and claimed he was not able to afford to see a doctor.
14. The applicant said he was presented with the opportunity to work on the NBN and was advised by an associate to start a company for that reason. However, he was not in a position to do that so he became a partner with another person and he worked for nine or ten months. The Tribunal reminded the applicant that as a Student Visa holder he could not work instead of study. He said he did not work “all the time” but was made a project manager on paper. The applicant said the money was going to the other person’s company and he was only paid his expenses. The Tribunal asked the applicant why he did not enrol to study as required. He said he had enrolled with GCE after TAFE but was not getting any money so he lost everything and had wasted nine or ten months. The Tribunal referred to the period when the applicant was not enrolled which was May 2016 until January 2017. He said he did the work on the NBN before that.
15. The Tribunal asked the applicant if his evidence to the Department that his father had been ill in early 2016 was correct. He said it was, and this it was because of the flood when everything was lost on his family’s property and he did not know what to do. The Tribunal asked for clarification as to whether the applicant accepted he had not been enrolled in a course of study from 2 May 2016 to 23 January 2017. He said he believed he had been enrolled during that time. The Tribunal referred to his study history that indicated he had completed a Certificate IV course in 2014 and a Diploma in 2015. The applicant agreed that was the case and then conceded he had not been enrolled during the relevant period.
16. The applicant said his original purpose in coming to Australia was to study. He was asked whether he had a compelling need to remain in Australia. In response the applicant said it had been a struggle and he wanted to return home with a sense of having achieved something in higher education. He said he had lost $50,000 due to fraud with a business. He had been unable to meet fees for his studies because of the business and lost nine or ten months. According to the applicant, he would still like to study if he has the opportunity. When asked what he wants to study the applicant said “whatever is available after Certificate IV I will study”. He was asked what he plans to do in future and the applicant said he will go back to India and set up “any business” so that his parents do not feel he did not achieve anything.
17. The Tribunal asked the applicant how he supports himself financially and he said if he can get a job for one or two days, he does that. When asked for details he said he might go on call at a car wash. The applicant claimed he had complied with all other visa conditions. Regarding any hardship that may result from his visa being cancelled, the applicant said he has a bank loan from India and he does not know how he will face his parents. He clarified it was in fact his parents who have a loan. The applicant said there will also be a bad effect on his image in the long term.
18. The applicant advised he does not have a partner or any children who would be affected by his visa being cancelled. The Tribunal explained to the applicant about the legal consequences of his visa being cancelled and asked if he understood. He said he had not been fully aware of it except that he knew it was a requirement to comply with visa requirements. Regarding Australia’s international obligations, the applicant said there are no issues affecting him in his home country.
19. The applicant’s representative asked the Tribunal if a further written submission and additional evidence may be submitted after the hearing and the Tribunal allowed a period of two weeks for that purpose. However, no further submissions were received by the due date of 19 June 2019.
20. 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

21. 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?

22. 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).
23. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
24. Since arriving in Australia the applicant had been enrolled in Certificate and Diploma courses. However, he was not enrolled to study from 2 May 2016 to 23 January 2017 when the Department issued a Notice of Intention to Consider Cancellation (NOICC). 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

25. 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
26. In this case the Tribunal accepts that the applicant’s original purpose in travelling to and staying in Australia was to study.
27. The applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant said he had been through difficulties but claimed he still wanted to study. However, he was vague as to what he wanted to do in Australia stating only “whatever is available after Certificate IV I will study”. Regarding plans for the future the applicant said he will go back to India and set up “any business”. The applicant referred to a fraud that he says occurred during his involvement in a business in Australia, in which he claimed to have lost $50,000, had been unable to pay his study fees and had also lost nine or ten months of his time.
28. The applicant’s submissions refer to difficulties with his education and work in the past and a wish to still study in Australia, however, the applicant does not have a particular academic plan or any goals for his future in his home country apart from being involved in business. In the written statement to the Department dated 6 February 2017 it is claimed the applicant “plans to go back after completing his study and help his father in changing the direction of the family agricultural business to some technology based business”. The applicant did not say what or why he needs to study in Australia in order to go into business in India or help with his father’s existing business. For these reasons, the Tribunal considers the applicant’s evidence does not demonstrate a powerful or convincing reason for needing to stay. For these reasons, the Tribunal does not give any weight to the applicant’s claims and is not satisfied he has a compelling need to remain in Australia.
    • the extent of compliance with visa conditions

There is no evidence before the Tribunal that the applicant has breached any other visa conditions. However, the applicant failed to maintain enrolment in an approved course of study which is a fundamental breach of student visa requirements and weighs against the applicant in this case.

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

29. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant said there is a bank loan from India and he does not know how he will face his parents. He also said there will be a bad effect on his image in the long term. In the response to the Department’s NOICC, it was claimed the applicant will have a bad name in society and his father’s dreams will be shattered. The Tribunal acknowledges the cancellation of the visa may cause a degree of financial and emotional hardship and has given some weight in favour of the applicant in assessing whether the discretion to cancel the visa should be exercised.
30. The Tribunal is takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.
    • 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
31. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student Visa but did not continue enrolment in an approved course of study for a period of 8 months. The applicant submitted a large amount of evidence to the Department to explain why he did not maintain enrolment. The Tribunal has taken that evidence into account in this case.
32. The applicant’s explanation of the circumstances that led to cancellation of his visa were that after his arrival in Australia, his family experienced financial difficulty due to crops and buildings being damaged first from the Nepal earthquake April 2015 and then floods in 2016. Due to his financial difficulty, the applicant said he took up an opportunity to work on the NBN and became a partner with another person. He said he worked for nine or ten months as a project manager but was not properly paid by the person who was in receipt of payment for the work. According to the representative’s statement to the Department, the applicant worked initially for six months between December 2015 and June 2016. It was claimed that this led to the applicant suffering from stress and as a result, he withdrew from an Advanced Diploma course and re-enrolled in a Bachelor degree. The applicant claimed it was then that the family in India suffered crop damage due to adverse weather and he could not begin the Bachelor course due to financial difficulty. The applicant submitted medical evidence to indicate he visited a doctor for depression but this occurred after the applicant was sent a NOICC by the Department. It does not demonstrate he was unable to study for the whole of the relevant period and the Tribunal gives no weight to this evidence.
33. The Tribunal places some weight in the applicant’s favour on the circumstances affecting his family’s home and business in India due to natural disasters. However, while the conditions affecting the applicant’s family in India were natural events that were beyond his control, his response to the situation was not. The applicant had the option to return to his home country and assist his family rather than remain in Australia in breach of visa conditions but he did not do so.
34. The Tribunal places no weight on the applicant’s claims of having been the victim of fraud while involved in a business working on the NBN. The applicant’s focus should have been on study in the higher education sector which was the purpose of his Student Visa and it was his responsibility to ensure he complied with visa conditions. If the applicant was unable to study due to financial difficulties, he should have put his studies on hold and departed Australia until he was in a position to resume. Condition 8202 explicitly requires primary student visa holders to maintain enrolment in a registered course. This is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment.
35. The Tribunal has considered the circumstances in which the grounds for cancellation arose and is not satisfied they were due to circumstances beyond the applicant’s control. The applicant could have deferred his studies and returned to India until he was in a position to resume but he remained in Australia in breach of visa conditions. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.
    • past and present behaviour of the visa holder towards the department

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

• whether there would be consequential cancellations under s.140

36. 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
37. 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 consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.
    • 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
38. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.
    • if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
39. The Subclass 573 Student Visa is not a permanent visa.
    • any other relevant matters

There were no other relevant matters to be considered.

Conclusion

40. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.
41. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

42. 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.