Aulakh (Migration)

[2017] AATA 2772

Aulakh (Migration) [2017] AATA 2772 (18 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Manpreet Kaur Aulakh

CASE NUMBER:  1617973

DIBP REFERENCE(S):  BCC2016/3021650

MEMBER:Christine Kannis

DATE:18 December 2017

PLACE OF DECISION:  Perth

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

Statement made on 18 December 2017 at 6:41am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Medical condition – Medical condition insufficient to explain lack of enrolment

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

CASES
Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 October 2016 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).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant requested a review of the cancellation decision by this Tribunal. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 29 November 2017 to give evidence and present arguments.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. On 8 November 2013 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in registered course of study since 14 October 2015. She was enrolled in a Diploma of Hospitality and in the pathway courses of a Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery. Her enrolment in all these courses was cancelled on 14 October 2015. 

9. Having regard to the information in PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 14 October 2015. The Tribunal finds that she breached condition8202(2)(a) of her visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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. On 3 October 2016 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. 

13. The applicant did not respond to the NOICC. The Tribunal asked the applicant the reason she failed to respond to the NOICC. She said she had forgotten her email password and by the time she reset her password and read her email, her visa had been cancelled. The Tribunal notes that this means the applicant was contending that she did not access her email for at least 17 days.

14. The Tribunal had regard to the PRISMS and noted that the applicant had previously been enrolled in a Bachelor of Science and a Diploma of Information and Communication Technology. Her enrolment in these courses was cancelled in 2013 and 2014.

15. The Tribunal asked the applicant about the reason she came to Australia to study. She said her agent in India had suggested she study a Bachelor of Science and a Diploma of Information and Communication Technology because those qualifications would be good for her future. The Tribunal asked the applicant how she had intended to use those qualifications. She said she had hoped to work in that field but she was unable to provide details of any particular employment she had envisaged.

16. The applicant told the Tribunal that the Bachelor of Science and the Diploma of Information and Communication Technology courses were too difficult and so she decided to study Cookery with a view to becoming a chef. She said she was unable to undertake her Cookery studies because she was too sick. She said she suffered from menstrual problems when she was in India and they worsened after she arrived in Australia.

17. The applicant provided the following documents at the hearing:

    ·A Clinipath Pathology invoice and Clinical Notes for a service undertaken on 12 March 2015. The testing was described as Clinical Chemistry.

    ·A letter dated 13 April 2015 from the Emergency Department Registrar of Royal Perth Hospital. The Registrar stated that the applicant attended that day presenting with abdominal pain and associated nausea. The diagnosis referred to the cause as unknown. The applicant was described as haenodynamically well and stable on examination, with a soft non-tender abdomen. Her bloods were normal and she was given oral analgesia and discharged.

    ·A letter dated 29 September 2015 from an Emergency Department Junior Medical Officer at Royal Perth Hospital. The Junior Medical Officer stated that the applicant attended that day presenting with a headache and vomiting.  She reported irregular menstruation. On examination she was observed to be stable with a soft and non-tender abdomen. The letter referred to the applicant suffering from a tension headache and said she was given anti-inflammatory medication with good effect, intravenous hydration and discharged.

    ·Medical Certificates dated 26 March 2014, 1 April 2014, 9 April 2014, 29 April 2014, 11 March 2015 and 25 May 2015 from Dr Jaswinder Mudhar of Carousel Medical Centre. The Certificates covered various brief periods from 24 March 2014 to 26 March 2015. The Certificates all contained the following statement:

    “I conclude by reason of this patient’s statement she was unable to attend college on/ from (nominated dates inserted) inclusive.”

    ·A Sick Certificate dated 9 February 2015 from Dr Jaswinder Mudhar of Carousel Medical Centre which stated that the applicant was unfit for college from 9 February 2015 to 10 February 2015 inclusive. No reason was provided.

18. The applicant told the Tribunal that her menstrual pain caused her to not be able to walk around for two or three days sometimes. The applicant was not forthcoming in giving her evidence to the Tribunal however it appeared that she was contending that her menstrual pain resulted in her being unable to attend college, which led to cancellation of her enrolment.

19. The Tribunal informed the applicant that it had formed the preliminary view that the medical evidence provided did not adequately explain the reason she was unable to attend college prior to cancellation of her visa. The pathology documentation and letters did not state that the applicant was unable to attend college on any nominated dates. The Medical Certificates stated she was unable to attend college on nominated dates however the reason for her inability was stated to be because of “this patient’s statement”. No details of the “this patient’s statement” were provided. The Tribunal informed the applicant that it did not consider the Medical Certificates were satisfactory evidence of her inability to attend college for medical reasons.

20. The Tribunal noted that the Medical Certificates covered periods of between four and seven days only. The Tribunal pointed out that any menstrual pain suffered did not appear to have been present on an ongoing basis and that she would have been free from pain for significant periods. In response she repeated that the pain would sometimes cause her to not be able to walk for two or three days.

21. Whilst the Tribunal accepts that the applicant suffered abdominal pain and nausea in April 2015 and a headache in September 2015, both of which caused her to attend the Emergency Department of Royal Perth Hospital, these attendances do not establish an acceptable or sufficient reason for not attending college.

22. The Tribunal also accepts that the applicant may have suffered ill health in 2014 and 2015 which may have resulted in her inability to attend college for brief periods, however the evidence did not provide any satisfactory basis for the Tribunal to make such a finding. The evidence did not establish that the applicant was unable to attend college for medical reasons during brief periods nor for an extended period.

23. The applicant told the Tribunal that since cancellation of her visa she had worked for six or seven months from mid-2016 and otherwise she has done “nothing”. She has been waiting for the Tribunal to make a decision about her visa. Her parents financially supported her when she has not worked.

24. When asked whether she would suffer hardship if her visa was cancelled, the applicant responded with “maybe”, “not sure” and “I think so”. The Tribunal asked her whether she wished to provide further details about any hardship but she declined to do so.

25. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as contended in the applicant’s oral evidence.

    Conclusion

26. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 14 October 2015 and nearly 12 months elapsed from that date until the NOICC was issued.

27. The applicant said she had been unable to attend college due to menstrual pain. As a consequence she ceased to be enrolled in a registered course from October 2015. She has either worked or done “nothing” since cancellation of her visa.

28. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of her visa to be significant because she is not engaging in study for which her visa was granted and is not fulfilling the purpose of her travel to and stay in Australia, nor was she doing so for nearly 12 months prior to cancellation of her visa.

29. The Tribunal finds that there are no extenuating or compassionate circumstances in this case. The Tribunal finds that the circumstances that led to the applicant ceasing to be enrolled from 14 October 2015 were not beyond her control.  Despite the applicant claiming that menstrual pain resulted in her being unable to attend college, the evidence did not support this claim. The Medical Certificates stated her inability to attend was based on her own statements and provided no medical basis for her inability to attend. In addition the Medical Certificates covered brief nominated periods only.

30. The Tribunal accepts that the applicant may suffer hardship by cancellation of her visa because she will not be able to apply for a visa to return to study in Australia in the near future.

31. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

32. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does no claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

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

    Christine Kannis
    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.