ATWAL (Migration)

[2020] AATA 203

ATWAL (Migration) [2020] AATA 203 (6 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aman ATWAL

CASE NUMBER:  1806881

HOME AFFAIRS REFERENCE(S):           BCC2017/4007318

MEMBER:Linda Symons

DATE:6 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 February 2020 at 4:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – not enrolled in a registered course – consideration of discretion – compelling need to remain in Australia – genuine student – strong commitment to completing a Bachelor degree in Australia – circumstances giving rise to non-enrolment – personal difficulties – wife’s passing – mental health issues – decision under review set aside

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 8 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector 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 was not enrolled in a registered course from 24 April 2017 to 10 November 2017. On 14 March 2018, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 4 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review and his representative, Mr Pustam Sandhu, attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. 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?

7. 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).

8. In the present case, the applicant was granted a Student visa by the Department of Immigration (the Department) on 9 December 2014. This visa was subject to a number of conditions including condition 8202. On 5 February 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. He did not respond to the NOITCC. The delegate cancelled his Student visa on 8 March 2018.

9. The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 8 March 2018.

10. Following the hearing, the Tribunal received written submissions from the applicant’s migration agent which it has considered. The Tribunal also received a report from Mr Singh, Consultant Psychologist, dated 13 March 2018, an invoice from Mr Singh dated 13 March 2018, an email from Australasian International Academy to the applicant dated 12 March 2018, a Confirmation of Enrolment (COE) for an Advanced Diploma of Accounting, an English translation of a Death Certificate, the applicant’s Marriage Certificate, a copy of the bio data page of the applicant’s passport, two Visa Grant Notices from the Department dated 5 April 2018 and 7 May 2018, an email from EGI Student Services to the applicant dated 11 December 2019, a COE for a Diploma of Business, a Time Table for a Diploma of Business issued by ZBA, three Boarding Passes, a Thai Departure Card, a Certificate IV in Business Administration, an undated Statement of Results, two undated Completion Letters, an email from Victoria University to the applicant dated 18 September 2017, email correspondence between the applicant and Victoria University and a Commonwealth Bank statement.

11. The applicant has filed with the Tribunal a copy of the Department’s Decision Record which indicates that his Student visa was cancelled on 8 March 2018 for breach of condition 8202(2)(a) of his Student visa as he was not enrolled in a registered course of study between 24 April 2017 and 10 November 2017. This is consistent with the records of the Department of Education and supporting documents provided by the applicant

12. During the hearing, the Tribunal asked the applicant whether he understood that if he was not enrolled in a registered course he could be in breach of condition 8202 of his Student visa. He responded yes. When asked whether he agreed that he had breached condition 8202 of his Student visa, he responded yes.

13. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course of study between 24 April 2017 and 10 November 2017 and accordingly has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling          need to travel to or remain in Australia?

15. The applicant gave evidence to the Tribunal that the purpose for which he travelled to Australia was to obtain a Bachelor’s degree in Australia. He stated that he enrolled in a Certificate IV in Business Administration, a Diploma of Business, an Advanced Diploma of Business and a Bachelor of Business degree so that he could gradually study up to the Bachelor degree level. He stated that he was studying an Advanced Diploma of Accounting when the Department cancelled his Student visa on 8 March 2018.

16. The applicant stated that after his Student visa was cancelled his education provider cancelled his enrolment in the Advanced Diploma of Accounting because he did not have any study rights. He stated that he was ill advised and did not know that he could apply to the Department to give him study rights on his Bridging visa whilst awaiting the outcome of his application for review before the Tribunal. He stated that he is a genuine student and is committed to completing the Advanced Diploma of Accounting and a Bachelor degree before returning to India.   

17. The applicant gave evidence that since the death of his wife by suicide and his own mental health issues as a result of her death and the circumstances surrounding her death, he has developed an interest in mental health and treatment. He stated that he does not want anyone else to go through what his wife went through. He stated that he is considering changing his course of study to learn about mental health. He stated that he has made inquiries with the Holmes Institute and they offer a suitable course he can study. He stated that his neighbours in India are doctors and he would like to obtain some qualifications in Australia, return to India and work with them in mental health awareness and treatment. He stated that he has already spoken to his father about this.

18. The records of the Department of Education indicate that the applicant has completed two Certificate IVs in Business Administration and a Diploma of Business. He was studying an Advanced Diploma of Accounting at the time his Student visa was cancelled. The Tribunal accepts that he has a strong commitment to completing a Bachelor degree in Australia and is satisfied that he is a genuine student. The Tribunal is satisfied that he has a compelling need to remain in Australia and complete a Bachelor degree here.

19. The Tribunal gives this consideration some weight in the applicant’s favour.   

    The extent of compliance with visa conditions

20. The applicant was not enrolled in a registered course between 24 April 2017 and 10 November 2017. Whilst six and a half months is a considerable period of time for a student not to be enrolled in a registered course, the Tribunal is of the view that it is understandable in light of his personal circumstances at that time. (See below)

21. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal gives this consideration some weight in his favour.   

    Degree of hardship that may be caused

22. The applicant’s evidence is that a considerable amount of money has been spent on his education in Australia. He stated that he will feel ashamed of himself if he has to return to India without a degree. He said that it would be very difficult for him to go back without a degree and without a wife. He stated that people in his social circle will look down on him. He stated that it will be difficult for his parents as well. He stated that his parents are facing a lot of problems because of his wife’s family. He stated that they are threatening them and threatening not to “spare” him if he returns.

23. The applicant’s migration agent provided written submissions and stated, in part, the following:

    In the event the decision of the Department is affirmed by the Tribunal, the applicant   and his family will face severe hardship. The applicant’s family invested significant   time and financial resources to get into Australia so he could complete his   international studies. They did this on account that his international education would   drastically improve his career and life back home. When his wife passed away, his                 family also suffered mental torture from society (especially from the applicant’s in-  laws) due to what happened. If he returns to India without the completion of a   degree, his family will suffer further taunts and mental torture from the community. He                    fears society will shun them further because he risked it all to get an education but he             returned with no wife and no education either.

    In addition to this, the applicant would suffer drastically as well as he has invested   significant time, energy, resources and effort to study in Australia which would all go   to waste if he returned without a degree to India. The importance of his degree is   beyond comprehension as it would change his whole life in India. With the excellent               education structure and quality of Australian education, he could use his world-class   degree to commence his own business in India or get employed by a large   multinational corporation in the mental health sector.

24. The Tribunal accepts that it will cause the applicant and his family hardship if he returns to India without a degree. The Tribunal gives this consideration some weight in his favour.

    Circumstances in which the ground for cancellation arose

25. The applicant’s evidence is that he came to Australia in 2015 in the hope of obtaining a Bachelor degree in Australia. He stated that he was enrolled in a Certificate IV in Business Administration, a Diploma of Business and an Advanced Diploma of Business at the Zenith Business Academy (ZBA) and a Bachelor of Business degree at Victoria University. He stated that ZBA is affiliated with Victoria University. He stated that when he first started studying in Australia he had difficulty adjusting to the Australian education system and it took him 6 months longer to complete his Certificate IV in Business Administration. He stated that this had a knock on effect on his enrolment in the subsequent courses.

26. The applicant stated that he spoke to ZBA about this and was told that they would extend the dates on his COEs to accommodate the delay in completing the Certificate IV in Business Administration and that they would contact Victoria University to amend the start date for the Bachelor of Business degree. He stated that he relied on ZBA to do that and did not check with Victoria University that the start date for the Bachelor of Business degree had been amended. He stated that he subsequently found out that the start date had not been amended and when he did not enrol for the original start date, Victoria University cancelled his COE on 24 April 2017.

27. The evidence before the Tribunal is that the applicant got married on 22 April 2016. He knew his wife for several years prior to their marriage. It was an inter caste marriage and neither of their parents approved of it. He stated that he lodged an application for a Student dependent visa so that his wife could join him in Australia but that application was refused. He stated that he then lodged a second application for a Student dependent visa which was also refused. He stated that the delay and the refusals took its toll on him and his wife. He stated that they had arguments.

28. The applicant stated that the problems with obtaining a Student dependent visa for his wife also resulted in his parents-in-law giving him a hard time and undermining his relationship with his wife. He stated that they accused him of lying and not making enough of an effort to obtain a Student dependent visa. He stated that they blamed him for the delay and the refusal of the visa applications and accused him of having another partner in Australia which was not true.

29. The applicant stated that his wife then committed suicide. He stated that this had a devastating impact on him. He stated that his parents-in-law blamed him for her suicide. He stated that he booked a flight to India via Bangkok to attend his wife’s funeral. He stated that when he was in Bangkok he was contacted by his parents and told not to come to India as it was too dangerous for him. He stated that he aborted his trip to India and returned to Australia.  

30. The applicant has provided to the Tribunal his wife’s Death Certificate which indicates that the date of death was 29 April 2017. It does not disclose the cause of death. There is a notation that the cause of death is noted on the Death Register. He has also provided the Tribunal with three boarding passes. The first boarding pass is from Sydney to Bangkok on Thai Airways on 30 April. The second boarding pass is from Bangkok to Delhi on Thai Airways on 30 April. It has a notation on it in hand writing to indicate that he was off loaded at the gate due to “own reason”. The third boarding pass is from Bangkok to Sydney on Qantas on 1 May.

31. The applicant stated that after his wife’s death he was not able to concentrate on his studies.  He stated that when he returned from Bangkok he spoke to ZBA and explained his situation to them. He stated that he also spoke to a student counsellor at the end of May or beginning of June 2017. He stated that he asked for his COE to be re-issued but was told that they could not. He stated that he then asked for a refund of his fees and was asked to fill out some forms. He stated that he did and was told that they could not refund his fees. He stated that when he was unable to re-enrol at ZBA he enrolled (in an Advanced Diploma of Accounting) at the Australasian International Academy (AIA).

32. The applicant stated that he applied to Victoria University for a refund of his fees and was asked to provide supporting documents. He stated that when he did he received a refund of the fees in September 2017. He has provided to the Tribunal a Commonwealth Bank statement which shows that the money was deposited into his bank account on 25 October 2017. He stated that he used some of this money to purchase an airline ticket and returned to India. He stated that he was in India in November and December 2017 and then returned to Australia. He stated that AIA was on a term break until February 2018. He stated that in February 2018 he received the NOITCC. He stated that his Student visa was about to expire and he was more focussed on applying for a new Student visa so he did not respond to the NOITCC.

33. The applicant stated that he then received a letter from the Department that his Student visa had been cancelled. He stated that he lodged an application for review with the Tribunal. He stated that his Bridging visa did not give him work rights or study rights. He stated that he did not have a migration agent at that time and applied to the Department and was granted work rights. He stated that based on advice he was given he went to AIA to apply for study rights. He stated that when they realised that his Student visa was cancelled they cancelled his COE. He stated that he went back to ZBA but was told that they could not give him a COE if he did not have study rights. He stated that he was given bad advice and acted on that advice. He stated that it did not occur to him to speak to the Department about the problems he was having.

34. The applicant has provided to the Tribunal a report from Mr Bill Singh, Consultant Psychologist, dated 13 March 2018. It indicates that he was interviewed on 8 March 2018. Mr Singh reports “as his personal circumstances were probed into, he was on the verge of tears as he bore the shock and grief of his wife having committed suicide in India on 29 April 2017 because of family abuse and relationship breakdown issues.” He stated “as the interview progressed, Mr Atwal disclosed that his late wife, Parminder Kaur, is of the Sikh religious tradition and from a lower socio-economic status compared to his family of a higher Hindu caste and of a higher SES group.”

35. Mr Singh went on to report “Mr Atwal disclosed that the couple got married in April 2016 after knowing each other for about five years. However, he disclosed, his own parents were not pleased with the inter-caste marriage and the bridal family’s socio-economic status and he narrated how they had been told to leave the home if he chose to marry her. Despite the friction and disapproval, the marriage was solemnised”. Mr Singh went on to report:

    Mr Atwal disclosed that his wife also experienced abuse from her own parents   due to the class differences and aspects of manipulation to gain financial gain from   the marriage and son-in-law. His wife had faced disapproval for her choice of   husband without the initial approval of her parents.

    Mr Atwal reported two applications to bring his wife to Australia on a Spouse visa but                    they both were refused. This led his in-laws to accuse him of having another partner   here which was made up rumour. Mr Atwal’s commitment was questioned and the               couple’s separation took its toll on Parminder Kaur who resorted to suicide by   hanging herself from the home fan. Mr Atwal’s expression was one of deep grief and                   shock as he said his life is ‘finished, empty, don’t have any goals’. He added that he   had known her for seven years and they were planning a future together.

    Part of the grief cycle of loss includes shock and denial, anger, bargaining,   depression and acceptance to the end of the grief process. Different individuals   experience grief differently. He asked,’ why did she do it? Why did her parents do   what they did? I should also kill myself. I am finished.’ Mr Atwal appears to be coping             with the severe loss and his suicidality was assessed as low and follow-up   counselling will occur at his next appointment.

    Mr Atwal’s grief and anger are ongoing and he disclosed not communicating with his                    parents and in-laws even while his older brother contacts him to check on him. It   appears that Mr Atwal is being blamed for events he had no control over. Further to   these stresses, Mr Atwal disclosed that his father’s diabetes is severe and he has                   been hospitalised and discharged several times. The longest hospitalisation was   three months.

    Appearing desperate to be believed, Mr Atwal submitted airline travel information to   show that he made a trip to go home as soon as he heard about his wife’s death.               However, while transiting in Bangkok, his parents advised him not to come home due   to ongoing family breakdown issues and he may be targeted. As such, he cancelled   his trip and returned to Sydney.

1. Mr Singh went on to report that Mr Atwal was administered the DASS 21 - Depression, Anxiety and Stress Scale - which is a self-reporting questionnaire. His professional evaluation was that the applicant suffers from depression, anxiety and stress. He stated “he presented as someone whose resilience has been compromised including the shocking news of his wife’s fatal suicide and family disharmony and he has developed psychological responses which has been detrimental to his capacity to concentrate on his studies”. He recommended a treatment plan for the applicant which included ongoing counselling.

2. The applicant’s migration agent submitted that the circumstances that led to the cancellation of the applicant’s Student visa were beyond his control. He stated that the applicant was given the impression, by his education provider, that he could not study anymore and also received “misguided advice” from his friends. He stated that because of his lack of immigration knowledge coupled with the immense trauma he faced and misguidance from close friends he was not able to enrol in any course of study until October 2017.

3. The applicant’s migration agent stated that the applicant had resumed his studies at the time he received the NOITCC. He stated that it caused severe anxiety and depression when he realised that his Student visa may be cancelled as he thought he had finally got back on track. He stated that he had saved up money to pay for his tuition fees and did not have any funds to seek professional advice in relation to the NOITCC. He stated that he did not know what to do or how to proceed and this confusion and anxiety, coupled with his lack of immigration knowledge, resulted in inaction. He stated that this inaction resulted in his Student visa being cancelled.

4. The Tribunal accepts that the circumstances in which the grounds for cancellation arose were unusual. The Tribunal accepts that the problems the applicant was having in India impacted on his ability to study in Australia. The Tribunal accepts that his wife’s suicide and the resulting problems had an enormous impact on him and may have caused him to suffer from depression, anxiety and stress. The Tribunal accepts that it may also have impacted on his ability to maintain enrolment in a registered course of study. However, the Tribunal is of the view that the problems he has had were partly due to his reliance on ZBA to change the starting date for his Bachelor of Business degree at Victoria University rather than taking responsibility for this himself, his reliance on advice given by friends who were not qualified to give that advice, his failure to obtain immigration advice earlier and his failure to understand and comply with his obligations to the Department.

5. Nevertheless, the Tribunal accepts that the circumstances in which the grounds for cancellation arose were to some extent out of the applicant’s control. The Tribunal gives this consideration some weight in his favour.        

   Past and present behaviour of the applicant towards the Department

6. The applicant gave evidence that, other than for the cancellation of his Student visa, he has not had any problems with the Department in relation to not complying with visa conditions.

7. The applicant’s migration agent submitted that “other than the delayed enrolment, the applicant has not shown any non-compliance with any of his visa conditions and requirements. He is a law-abiding citizen that respects Australian values and the laws of the country. He has solemnly declared to comply by all rules and regulations imposed on his Student visa if it is granted and also to depart as required. Judging from his past and present behaviour towards the Department, it is safe to assume that he will fulfil his promise and respect all conditions and requirements imposed on him”.

8. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in his favour.   

   Whether there would be consequential cancellations under s.140 of the Act

9. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in his favour.

   Legal consequences of a decision to cancel the visa

10. If the applicant’s Student visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia or resolve his immigration status. However, he may be eligible for a Bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalize his affairs in Australia before departing.

11. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation.

12. These are the intended consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration little weight in his favour.   

    Australia’s international obligations

13. The Tribunal asked the applicant whether there was any reason why he could not return to India. He responded that his family has had to “hear a lot” from other people. He stated that they have also had to “hear a lot” in relation to his wife’s death. He stated that if he returns without finishing his degree they will say that he has still not finished his education and has achieved nothing. He stated that if he returns and does not do anything, they will say that he has lost all of that and still sits idle.

14. Earlier in the hearing, the applicant stated that his parents-in-law blame him for his wife’s suicide. He stated that his parents faced a lot of problems from his wife’s family. He stated that they threatened that if he returns to India they would not “spare” him. He stated that he intended returning to India to attend his wife’s funeral but aborted his trip in Bangkok after his parents warned him not to go to India as it was too dangerous for him. He stated that his parents-in-law had made a complaint against him to the Police.

15. The Tribunal pointed out to him that he had returned to India since then. He stated that he was advised that the Police could not do anything after 3 months from the date of the complaint. He stated that he returned to India 6 months later because he needed to withdraw money from his wife’s bank account. He stated that he had spent a considerable amount of money on his tuition fees and on paying for the applications for the Student dependent visas and had no money. He stated that his father did not have enough money to give him.

16. The Tribunal asked him whether he had any problems when he went back to India. He stated that his wife’s parents would not give him the bank account books. He stated that the bank required him to provide evidence that the money was his as the bank account was not in his name.

17. On the evidence before it, the Tribunal is not satisfied that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in his favour.

    Any other relevant matter

18. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

19. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for not cancelling the applicant’s Student visa outweigh the grounds for cancelling his Student visa. Therefore, the Tribunal concludes that the visa should not be cancelled.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

L. Symons
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.