Matharu (Migration) [2020] AATA 2508 (26 May 2020)

Last Updated: 29 July 2020

Matharu (Migration) [2020] AATA 2508 (26 May 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Palwinder Singh Matharu

CASE NUMBER: 1717945

HOME AFFAIRS REFERENCE(S): BCC2017/1583178

MEMBER: Donna Petrovich

DATE: 26 May 2020

PLACE OF DECISION: Melbourne

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

Statement made on 26 May 2020 at 3:12pm

CATCHWORDS
MIGRATION – cancellation – Subclass 500 (Student) visa – not enrolled in registered course – non-payment of fees – failure to maintain enrolment – failure to respond to cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) 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’s enrolment was cancelled by the education provided due to no-payment of fees on the 18 October 2016 and remained un-enrolled until time of cancelation on the 16 July 2017, a period of nine months. 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 14 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 full time registered course: 8202(2)(a)
   • has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
   • has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
8. The applicant was granted a Student Temporary Visa Class TU Higher Education Sector on 4 August 2014. He arrived in Australia on 10 September 2014, having enrolled in a registered course of study, namely he was enrolled in Business Information Technology, where he told the Tribunal that he completed his first semester, but found he was not comfortable with this college and applied for another two or three colleges.
9. At the hearing, he told the Tribunal that he then enrolled in Holmes institute and completed his second semester in Information Technology and passed two subjects. He told the Tribunal that he was not happy with the staff and the structure at this college through which he then sought a further enrolment. The Provider Registration and International Student Management System (PRISMS) record shows that the applicant’S enrolment was discontinued on 18 October 2016 due to non-payment of fees. The applicant told the Tribunal that the College cancelled his Certificate of Enrolment but he did not get the Notification and was unaware until he was notified by the Department when he received the Notice of Intention to Consider Cancellation (NOICC).
10. A NOICC was sent to the applicant advising that he was in breach on a condition of his visa the applicant on the 17 July 2016. The applicant did not respond to this email. Which he explained later in the hearing that he was not checking his emails, which were not being received on his phone at this time. The Tribunal confirmed with the applicant that this was the method of communication that had been nominated by him for communication with the college and the Department of Immigration and Border Protection. The applicant told the Tribunal that this was a mistake on his part.
11. The delegate cancelled the applicant’s visa on 4 August 2017 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 18 October 2016 until time of cancellation on 17 July 2017, a period of nine months.
12. The Tribunal notes that enrolment in a course of study in a registered course was at all times a condition of the applicant’s subclass 573 Student (Temporary)(class TU) Higher Education Sector visa.
13. The applicant did not respond to the NOICC dated 17 July 2017. The applicant did not check his emails and so told the Tribunal that he would have responded if he had known. He acknowledged that he did not pay his fees, and that the college would not allow him to sit his exams without the full payment of his fees. He told the Tribunal that he was upset at the time because his grandfather had passed away. The applicant provided no evidence of the timeframe when his grandfather had passed away.
14. 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)(a).

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 Procedural Instruction ‘General visa cancellation powers’.

The applicant’s purpose of travelling and staying in Australia

16. During the hearing the applicant confirmed that his intended purpose in travelling and staying in Australia was to study. In addition he stated that he wished to complete his studies.
17. The applicant’s enrolment in a registered course of study was cancelled on 18 October 2016 and he has not been enrolled in a registered course of study since this time. Since being granted his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) on 4 August 2014, the applicant did not complete any course of study and has remained in Australia in breach of the conditions of his visa.
18. The applicant claims that he intends to continue his studies in Australia if given the opportunity. The applicant has not provided the Tribunal with evidence that he has sought enrolment and told the Tribunal that his Migration agent had assisted him in preparing his appeal, but did not assist him to apply for study or work rights, and did not inform him that this was possible.
19. According to PRISMS the applicant does not hold a current or future enrolment in a registered course of study with an Australian Education Provider.
20. Accordingly, the Tribunal gives little weight to the applicant’s statement that the purpose of him travelling and staying in Australia was to study.

Compliance with visa conditions

21. The applicant has not been enrolled in a registered course since 18 October 2016, without work or study rights. The applicant has remained in Australia without having complied with the conditions of his visa. As such the applicant’s non-compliance is significant and as such the Tribunal gives little weight in consideration of this factor.

The degree of hardship that may be caused to the applicant

22. The applicant told the Tribunal that without work or study rights he has found his life very difficult, and for two years he has done nothing, but is thankful for the support of his friends. He is currently living with a friend who pays for his rent and expenses, and previously he lived at the Sikh temple in Craigieburn for 4-5 months in 2017-2018.
23. The applicant told the Tribunal that he had previously worked cleaning and washing cars for 20 hours per week. This had covered his living expenses. His school fees were being paid for by his family, who continue to provide money for fees although the applicant is not attending or enrolled in classes. The applicant also told the Tribunal that he had not told his family that his enrolment had been cancelled event though he speaks to them every day, as he does not want to distress them as he says that they were very happy when he obtained his visa to study. The applicant told the Tribunal that his family were very dependant on him, and he had not told them of his circumstances because they were already facing problems. The applicant did not provide details or evidence of the problems being experienced by his family and did not elaborate on the circumstances. The Tribunal does not accept this as a form of hardship. The applicant has been in Australia since 10 September 2014 and since that time he has displayed a lack of commitment to progression of his studies, and towards the completion of a course, or in fact maintaining an enrolment consistently at one college. He has rather chosen to change colleges and not maintain his enrolment. The applicant has switched courses based on dissatisfaction with teachers, class size, or the structure of the course. As such the Tribunal places no weight on this consideration in the applicant’s favour.
24. The Tribunal assumes that the applicant’s family will be expecting him to return home to India, after being in Australia since 10 September 2014. Whilst the applicant’s family will face some disappointment; the applicant has told the Tribunal that his family are wheat and rice growers in India, and that they are getting older, and in need of his support. Therefore, the applicant has strong ties in India to his family, and has the possibility to return home to meaningful work on the family farm. As such The Tribunal places no weight on this consideration in the applicant’s favour.
25. The applicant told the Tribunal that because he has a gap in his studies of two and a half years now, and that he would not have any future. The Tribunal does not accept that the applicant will face any great hardship, and believes there is the option of the applicant studying IT in India and then pursuing a future career in this field. The applicant has not returned home to India to visit his family for five years and he told the Tribunal that he would travel home to see his family if he was able to secure work and study rights. The Tribunal places little weight in the applicant’s favour in this regard based on the applicant’s previous study history, and does not accept that this would cause hardship to the applicant or his family.
26. However, the Tribunal notes that in the event of that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition he will be subject to Public Interest Criterion 4013 which means he may not be granted a temporary visa for three years from the date of cancellation.
27. While the Tribunal accepts that if the applicant’s visa is cancelled he may suffer some embarrassment by having to return to India, without a qualification, it does not accept the applicant’s evidence of hardship or about the reason for his wanting to enrol in further studies, and as such has given little weight to the hardship the applicant says he will suffer.

The circumstances in which the grounds for cancellation arose

28. The applicant told the Tribunal at the hearing held on14 January 2020 that he was not aware that the College had cancelled his enrolment, and was unaware of this until he received a Notice of Intention to Consider Cancellation, nor was he notified of the cancellation of his visa, as he did not receive a letter or email. He later told the Tribunal that he was not checking his emails at that time and did not have access to emails through his phone. He told the Tribunal had he known of the cancellation he would have taken action. He also told the Tribunal at this time he was not attending college as he was waiting to change colleges. The applicant admitted during the hearing that it was his responsibility to maintain his enrolment and that he had made a mistake in not checking his emails. The Tribunal gives no weight in favour of the applicant in exercising discretion not to cancel.
29. He also told the Tribunal that he could not pay his course fees on time, and therefore the College would not allow him to sit his exams. At the time he was working part time 20 hours and had had a car accident on his way to work. His parents had sent him money to pay for his school fees, but instead he had chosen to pay for the repairs on his car. The Tribunal places no weight in favour of exercising discretion not to cancel in this regard.
30. The applicant told the Tribunal that his fees were valued at $7200, the applicant paid $2000, and used the $5200 remaining to pay to get his car fixed. He asked the college for an extension of time to pay, but they would not allow this as exams were due and he could not sit exams without full payment of the fees. The applicant has not taken seriously the payment of his fees in order to maintain his enrolment. The Tribunal in considering this places no weight in favour of exercising discretion not to cancel.
31. During the course of the hearing the applicant told the Tribunal that he did know that he had problems with his enrolment at this stage of the hearing and admitted he had made a mistake in choosing to fix his car rather than pay his fees. The Tribunal places no weight in favour of the applicant in exercising discretion not to cancel.
32. He told the Tribunal that he was distressed because of the passing of his grandfather in India which he was not told about by his family immediately. He also told the Tribunal that he had suffered some depression as a result of the passing of his grandfather. The Tribunal asked the applicant if he had sought assistance from the college or any independent treatment for his depression or if he in fact had been assessed or received any counselling. The applicant told the Tribunal that he had not and could not provide details of when and how long he had been affected. The Tribunal places some small weight in favour of the applicant in this regard, as it is understandable the applicant be upset about the passing of his Grandfather.
33. The applicant initially told the Tribunal that he was unaware of the circumstances of the cancellation of his enrolment, which was not the case and became evident as the hearing progressed, that the applicant was well aware of why his enrolment was cancelled due to non-payment of fees. The applicant later in the hearing told the Tribunal he had made a big mistake in choosing to pay for his car repairs instead of making a payment on his enrolment, which would enable him to maintain his enrolment which is a condition of his Student visa.
34. The applicant told the Tribunal that he had hoped to change his enrolment and continue his study, which did not occur. The Tribunal in considering this does not accept that this is the intent of the applicant and therefore, places little weight in favour of the applicant in this regard.

Past and present behaviour of the visa holder toward the department

35. The applicant has been co-operative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weigh is given to him in consideration of this factor.

Persons in Australia who’s visa would be cancelled under s.140

36. The applicant is a single man and there are no other persons who may be affected in this way.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

37. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

Other relevant factors

38. Having considered the evidence presented by the applicant at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case
39. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
40. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Donna Petrovich
Member

ATTACHMENT
Migration Regulations 1994

...

Schedule 8

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 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; and

(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

(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.