Bhardwaj (Migration)

[2019] AATA 2358

Bhardwaj (Migration) [2019] AATA 2358 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankur Bhardwaj

CASE NUMBER:  1722317

HOME AFFAIRS REFERENCE(S):           BCC2017/2564416

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 12:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – serious breach – depression – deferral of studies – 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 12 September 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).

2. 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.

   Background

3. The applicant is a citizen of India and is currently 26 years old. He was granted a Student Visa to study in Australia that was valid from 25 August 2015 to 15 March 2019. On 30 August 2017 the applicant was advised by the Department that his visa may be cancelled as he had breached visa conditions by failing to maintain enrolment since 28 November 2016. In response the applicant provided two brief medical certificates, prescriptions for medication in his name and a receipt for payment to a medical practitioner. The applicant did not otherwise account for his failure to maintain enrolment or study during the relevant period.

4. The applicant appeared before the Tribunal on 8 May 2019 to give evidence and present arguments.

   Evidence of the visa applicant

5. The applicant confirmed he came to Australia in 2015 to study a Diploma in Business leading to a Bachelor degree. Before he came to Australia the applicant had completed high school and then joined the merchant navy. According to the applicant he decided to study in Australia because the merchant navy was a risky job. The applicant said he was raised by his grandparents and his mother had died. He said he loves Australia as a country for its environment as well as study. He said he had planned to work in Management in future.

6. The applicant said he was young and living by himself in Brisbane, he became depressed and felt he should kill himself. He has an uncle in Canberra and decided to move there for support. The applicant said he was being treated for depression and was prescribed medication. He said it meant he could not study at all and needed to be around somebody. The applicant referred to medical documents in support of his claims.

7. The Tribunal asked what the applicant had studied while in Australia. He said he completed a Certificate IV and was doing a Diploma but due to depression he had to contact his uncle in Canberra. He said he had paid for the first Semester of a degree at James Cook University but did not begin the course. The applicant said he advised the University he was not able to study due to depression as advised by his doctor but his Confirmation of Enrolment (COE) was cancelled. The applicant claimed he had asked his college if he could defer his studies but was refused.

8. The applicant was asked why he remained in Australia if he had a condition that meant he could not study. He said he was fine before and it happened suddenly. The Tribunal reminded the applicant he had not been enrolled to study for 8 to10 months and he agreed that was the case but said it was because he was in Canberra suffering from depression. The Tribunal told the applicant he must have been aware he could not remain in Australia and not study. He said he came to Canberra and began seeing a doctor. The Tribunal asked the applicant why he did not return home until he was able to resume studying. The applicant said he was feeling better with his uncle and his grandparents are very old.

9. The Tribunal referred to the doctor’s letter dated 25 April 2017 which says the applicant is not able to start his studies but will be reviewed in two months, on 25 June 2017. The applicant was asked what happened after that. The applicant claimed his doctor told him verbally that he should get out and play with kids so he got a job in a childcare centre. He said he did not resume studying because his visa was cancelled and he was worried that if he paid $40,000 in fees, he would be sent back to India. The applicant said if he is given the chance he would like to pursue a Bachelor of Education. The Tribunal advised the applicant that during the relevant time when he was not studying, it was not open to him to work and not study. The applicant said he was allowed to work while holding a Bridging Visa. The applicant clarified that he began working in child care after his visa was cancelled, allegedly on the advice of his doctor.

10. The applicant submitted that during the relevant time, he had met a girl and got married. He said he had applied for a visa but it was refused because the Department held it was not a real marriage. According to the applicant his wife is an athlete and he was helping her financially and emotionally but his application as a subsequent entrant on her visa was refused.

11. Regarding any hardship that would result from the cancellation of his visa, the applicant referred to having been raised by his grandparents. He explained again that initially he had been able to study but he was alone and he felt depressed. He said his grandfather has paid his study fees initially and after that, his uncle supported him financially as well as mentally. The applicant said it will not be a problem for him to continue studying because for the last year and half he had been working with kids in childcare and is much better now. He said he has the support of family in Australia including his wife. He said he just wants one more chance to study. When asked what he wants to study he said “business and teaching”. He clarified that he wants to study Education in either Canberra or Brisbane.

12. The applicant was asked if he has a compelling need to remain in Australia. He said he cannot study in India because he the only family he has left there is his elderly grandfather. He does not have parents or siblings and he is close to his uncle in Canberra. The Tribunal asked about the situation in India when the applicant returns to his home country in future and he said he wants to apply for a job in Australia working with kids when he finishes his studies. He said previously he was in a bad condition, had thought about hanging himself and went through hell.

13. The applicant said he had complied with other visa conditions and there is no one else dependent on his visa because his wife holds her own Student Visa. The applicant said he is aware of the legal consequences of visa cancellation but said it would shake him to the core because he wants to work with kids. Regarding Student Visas being temporary and the applicant should intend to return to India afterwards, he said after completing a Bachelor degree he would like to also study for a Masters and find a better job in Australia because there is nothing for him back home. He said it would affect him emotionally if he has to leave his partner.

14. In conclusion the applicant said his depression was the only reason he did not continue his studies but after taking prescription medication he is feeling much better. He said he began working with children and has done so for the last one and half years, for 20 hours per week. He said he needs a chance to continue his studies in Australia. The Tribunal asked the applicant if his doctor referred him to a psychologist or psychiatrist since he claims his mental health issues were serious. The applicant said he only went to one doctor and began taking the prescribed medications.

15. 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

16. 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?

17. 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).

18. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

19. The applicant arrived in Australia to study a Diploma course leading to a Bachelor degree and was residing in Queensland. Although he began studying, he discontinued and moved to Canberra to live with a relative. The applicant had not been enrolled to study from 28 November 2016 to 30 August 2017 when the Department issued a Notice of Intention to Consider Cancellation, a period of nine months.  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

20. 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

21. In this case the Tribunal accepts that the applicant’s original purpose in travelling to and staying in Australia was to study.

22. The applicant was invited to make submissions regarding any compelling need to remain in Australia. In response the applicant said he said he cannot study in India because the only family he has left there is his elderly grandfather. He does not have parents or siblings and he is close to his uncle in Canberra. The applicant’s claims indicate he would prefer to study in Australia because of his relationship with his uncle who lives here and the fact he only has one remaining relative in India. Apart from this preference the applicant has not provided any credible reason why he cannot study or work in his home country.

23. 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)

24. 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 referred to having been raised by his grandparents. He said he was adversely affected by being alone in Australia and suffered from depression. According to the applicant his grandfather paid his study fees to begin with and his uncle supported him in Australia. The applicant said he has a wife in Australia who supports him now and he will be able to resume his studies. 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.

25. 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

26. 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 9 months.

27. The applicant’s explanation of the circumstances that led to cancellation of his visa was that he suffered from depression while living by himself as a student in Brisbane.  For this reason, he said he moved to Canberra to be with his uncle and his enrolment was cancelled.  He was treated for depression by a GP and prescribed medication. According to the applicant, this meant he could not study at all and needed to be around somebody. The applicant referred to medical documents in support of his claims. The evidence included a letter from a GP dated 25 April 2017 stating he was not able to study but would be reviewed in two months, on 25 June 2017. When asked about the follow-up from this, the applicant claimed his doctor advised him verbally that he should involve himself with children so he got a job in a childcare centre. The applicant did not seek any treatment beyond visiting a GP and taking prescribed medication, even though he claimed his mental health condition was serious, and despite the GP’s letter of 25 April 2017 referring to the applicant having been suicidal. Although he was aware he was required to study while holding a Student Visa, the applicant failed to maintain enrolment for nine months prior to being informed by the Department his visa may be cancelled.

    Having assessed the evidence, the Tribunal accepts the applicant may have sought treatment from a doctor for depression and was prescribed medication. Medical certificates to the Department from February and April 2017 were provided as well as copies of prescriptions for medication in this regard. However, the Tribunal considers the applicant has overstated the severity of his mental health condition to explain his failure to maintain enrolment for a significant period. He did not account for his activities during the period from November 2016 to August 2017 except to say he was with his uncle in Canberra, was seeing a doctor and was unable to study at all. The brief medical evidence submitted does not support the applicant’s claim that he could not study for the entire period and there is no evidence he sought migration advice about his situation or contacted the Department regarding his visa status. As an international student, if the applicant did have a medical condition that prevented him from studying at all as he claims it was not open to him to continue to hold a Student Visa.

28. The applicant claimed he had advised his education provider he was not able to study due to depression but his COE was cancelled regardless. The applicant also claimed he had asked his college if he could defer his studies but was refused. The applicant did not provide any evidence to support these claims and the Tribunal does not accept his bare assertions in this regard. 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

29. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act. The applicant advised he has a partner in Australia but she holds her own Student Visa.

    ·     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

30. 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

31. 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

32. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

    The applicant claimed his health is now much better and he will be able to resume his studies if given the opportunity.  He advised he wants to study teaching or business, possibly a Bachelor of Education and may pursue a Masters and apply for jobs in Australia. He said he wants to work with children in future and make Australia proud. The applicant was reminded that Student Visas are temporary but the applicant said there is nothing left for him in India as he only has an elderly grandparent there. The applicant did not seem to appreciate the nature of a Student Visa and based on his evidence; it appears he is seeking to remain in Australia permanently. These factors weigh against the applicant because the student visa program in Australia exists to enable people who are not Australian citizens or permanent residents to undertake study in Australia but they are expected to return to their home country afterwards.

    Conclusion

1. 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.

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

   DECISION

3. 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.