Brar (Migration)

[2019] AATA 1510

Brar (Migration) [2019] AATA 1510 (10 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhjinder Singh Brar

CASE NUMBER:  1705359

HOME AFFAIRS REFERENCE(S):           BCC2016/3473890

MEMBER:Helen Kroger

DATE:10 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 10 February 2019 at 11:21am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – maintaining enrolment – limited academic progress – eligible higher degree student – enrolment cancelled for non-payment of fees – enrolment changed to vocational course – medical treatment – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 2, 573.111, 573.223, 573.531; Schedule 8, Condition 8156; r 1.40

CASES

Singh v MIBP[2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 March 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1) subject to subjections (2) and (3), whereby the Minister may cancel a visa if he/she is satisfied that: (b) its holder has not complied with a condition of the visa on the basis that the visa applicant did not comply with s116(1)(b) breach of condition – 8516, which is attached to the TU-573 Higher Education Sector visa. 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 15 January 2019 to give evidence and present arguments. The applicant was not represented by a migration agent.

4. The applicant provided the Tribunal a copy of the primary decision for the purpose of consideration.

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. Relevantly, 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?

   s.116(1)(b) - non-compliance with conditions

7. The visa applicant, an Indian national, was granted a Subclass 573 Higher Education Sector student visa on the 26 November 2013, for the purposes of studying in Australia, with condition 8516 attached.

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 states that the holder must continue to be a person who would satisfy the primary and secondary criteria, as the case requires, for the grant of the visa. In respect of a criterion, requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa : Singh v MIBP[2016] FCA 679.

9. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994.

10. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI12/037.

11. The courses specified by the Minister in instrument IMMI12/037 for a subclass 573 visa (granted prior to IMMI12/037) are:

    ·Higher Education Diploma

    ·Higher Education Advanced Diploma

    ·Bachelor Degree

    ·Graduate Certificate

    ·Graduate Diploma

    ·Associate Degree

    ·Masters by Coursework.

12. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor degree, Master’s degree by coursework or, for visa applications made on or after 12 November 2012, an advanced diploma in the higher education sector: cl.573.111.

13. According to the decision record submitted to the Tribunal by the applicant when his review application was lodged, the applicant was granted a class TU subclass 573 on 26 November 2013; and that according to the International Student Management Systems (PRISMS), the applicant is no longer enrolled in a bachelor’s degree or a master’s degree course and is not enrolled in a course of study that is a principal course of type specified for Subclass 573 visa by the Minister. The applicant’s education provider, Cambridge International College (Vic) Pty Ltd notified the Department on 2 September 2016, that the applicant’s COE was cancelled due to non-payment of fees. The applicant submitted to the Tribunal that he didn’t complete any subjects and that he returned to India after 6-8 months, to undergo medical treatment for kidney stones.

14. The visa applicant was granted a TU-573 Higher Education Sector visa on the 26 November 2013 with condition 8516 attached. The delegate in his/her decision found that the applicant was not enrolled in a course of study that is a principal course type specified for Subclass 573 visas. Based on this determination, the applicant did not satisfy subclauses 573.231 or 573.223(A) and accordingly did not satisfy the primary criteria for the grant of the visa, therefore have not complied with condition 8516.

15. The applicant was asked to comment on the delegate’s decision record at hearing, and in particular, to comment on his enrolment and the circumstances around his enrolment. The applicant confirmed that he came to Australia to study a Diploma/Bachelor of Information Technology at Chisholm Institute, Berwick campus.  He explained that he found it too difficult, and claims he enrolled in a Certificate lV Commercial Cookery Course and subsequently applied for a TU-572 visa, indicating that this was upon advice received from his agent. This application was unsuccessful and the applicant claims that he enrolled in a Bachelor of Business Accounting to comply with the TU-573 visa .

16. The applicant explained to the Tribunal that he married his girlfriend in 2016, who he is now separated from, and that he was no longer interested in studying and that he applied for a Partner visa. He described health issues relating to kidney stones that necessitated him returning to India for a medical procedure. After the applicant returned to Australia in 2016, he separated from his wife, who withdrew her sponsorship for his visa application.  He claimed that he could not afford to pay the fees for the course he was enrolled in, and accordingly the course provider cancelled his COE.  In an endeavour to “extend his visa”, the applicant claims to have sought the advice of a “lawyer”, who enrolled him in a Certificate level, Automotive Course at the Australian Education Centre in 2017.

17. The applicant was sent a NOICC, dated 22 February 2017, inviting him to comment. The applicant provided a written explanatory statement on the 28 February 2017 and did not disagree with the delegate’s assessment that the conditions of the visa had been breached, that he had not met his obligations as a student as he had lost interest and was in a depressive state.

18. Based on the information before it, and the evidence provided by the applicant., the Tribunal finds that the applicant has not been enrolled in a bachelor’s degree or master’s degree course of study and that the applicant was no longer enrolled in a COE in September 2016 following his withdrawal from studies earlier in the year, a non-compliance period in excess of 12 months at the time of the delegate’s decision. The Tribunal finds that the applicant has not been enrolled in a course of studying that is a principal course of type specified for the Subclass 573 visa by the Minister in IMMI 12/037 (as previously identified above).

19. Based on the information above, the Tribunal finds that the applicant, while holding a subclass 573 student visa, did not continue to satisfy cl.573.231 or cl.573.223(1A) and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There was no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that he breached condition 8516 attached to his student visa.

20. 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 the power to cancel the visa should be exercised.

    Consideration of the discretion to cancel the visa

21. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

22. 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’.

23. The Tribunal has considered the applicant’s evidence provided at hearing along with the documentation he submitted to the hearing and the delegate’s decision record.

24. The information provided to the Tribunal at hearing has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

25. The applicant is an Indian national who travelled to Australia for the purpose of studying and enrolled in a registered course of study at Chisholm, to study Information Technology. He completed a Diploma of Information Technology Networking with the intention of undertaking a Bachelor of Business Information Systems. He indicated to the Tribunal that he found the course and system of learning difficult and withdrew after the first semester to “explore other options of study.” He then enrolled in a Certificate III and lV in Commercial Cookery and a Diploma of Hospitality Management and submitted that he tried to change to a Subclass 572 visa unsuccessfully.  Whilst there is no documentation before the Tribunal to support this claim, the Tribunal has considered the applicant’s subsequent enrolment with Cambridge International College in a Bachelor of Business Accounting which was later cancelled.

26. The applicant explained to the Tribunal at hearing that he was depressed when he returned to Australia in 2016, a time when his relationship had broken down with his partner, that followed his medical treatment for kidney stones. In the applicant’s written submission he claims that he returned to Australia in December 2015.  The Tribunal considered the inconsistent claim in relation to dates and finds that whilst it is not unreasonable for the applicant to remember such approximate times, the closeness of the period of times referenced does not adversely reflect on the applicant’s claims.  He indicated that he had complications in hospital that required him to be admitted for an extended period of time and that he had been prescribed medication for depression. The circumstances were referenced in his response to the NOICC on the 28 February 2018 and is extracted below:

    I continued my studies in Cambridge International College until August 2015, after which I obtained a deferral to go to India to get operated for Kidney Stones. After the surgery and recovery period, I got married in India. In December 2015, I came back from  India with my wife. But within the initial weeks of marriage, we started observing differences between us and rifts started developing in our relationship. In February 2016, the relationship further deteriorated and my wife went to India. I was quite tom and disturbed by the incident and edged towards depression. In the state, I was in, I failed to enrol for the February 2016 intake at CIC. My wife then returned to Australia and I tried my best to improve things between us. But things took the wrong turn when  relatives and  friends started involving and further complicating the issue. I realised that I needed help and started going for Psychology  sessions.

    In October 2016, my wife and I decided to go our separate ways and filed for divorce. The Psychology sessions did  help and  my situations stared to improve during this while. I enrolled for an Automotive course with Education Access Australia in   October 2016.

    I understand that I have made a breach of my visa condition and have not met many of my obligations as a student. But my situation was such that I just had lost all interest and was in a depressive state. My marriage had failed in a matter of weeks, and though not just my fault, I was blamed by my parents, relatives and friends. I was in a difficult place in life and many of the decisions that I took was no apt. Things  are now  gradually  improving  and  I am  getting  my  life sorted.  I  have  contacted  Cambridge  International  College and  have requested  them  to  reinstate my COE and  allow  me to continue  my course  with  them.

27. The Tribunal has considered the applicant’s submission at hearing with regard to the challenges he found in undertaking the initial Information Technology course which he withdrew from after one semester, his subsequent enrolment in Commercial Cookery and the Diploma in Hospitality upon the advice of his agent, who suggested it was easier to get and less costly, that was later cancelled, and the subsequent enrolment at Cambridge International College as outlined above.

28. The Tribunal accepts that the applicant commenced his Diploma of Information Technology on arrival in Australia and has regard to the applicant’s statement in regard to the difficulty he faced with the different academic environments and standards that he was not familiar with. It has also considered his claim that an attempt was made to change his visa subclass to TU-572, and when that was unsuccessful, he enrolled in the Diploma/Bachelor degree at Cambridge International College and that he sought a deferment from the College when he returned to India to seek medical treatment.  The Tribunal has considered the extent of the breach at the time the applicant received the NOICC when he did not hold a COE with a registered course of study and the fact that he did not inform the Department of his changed circumstances and gives little weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

29. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time  period of study.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

30. Whilst the applicant made no reference to the circumstances he would face if the visa was cancelled in his written explanatory statement, he was invited to comment on the degree of hardship he would face, at hearing. He explained his medical condition and his poor mental health during and following his marriage breakup and the personal difficulties that he faced. He submitted to the hearing that he would face emotional and psychological difficulties if he had to return home because his visa was cancelled. He explained that people would “tease” him and his family should he return home, on the basis of his failed marriage along with failing to complete a course. He expressed particular concern for his mother, who he indicated was very distressed and would be subject to further emotional trauma should his visa be cancelled.  The applicant’s concern was expressed as much for his extended family and how they would be treated as he did for himself.

31. Whilst the Tribunal has some sympathy with the applicant and his medical circumstances and relationship breakdown, there is no evidence before the Tribunal that the applicant sought to deal with the emotional and personal challenges he faced, seeking any professional or counselling support, or made any endeavour to return home to mitigate any potential challenges that his family may have faced at that time. Whilst the Tribunal has sympathy with the concern expressed by the applicant for the disappointment that he and his family would experience should his visa be cancelled and the way in which other people may interpret this situation in India, there is no evidence before the Tribunal to indicate the way in which this would cause financial, emotional, psychological or other hardship

32. The Tribunal has had regard to these personal circumstances as outlined above and appreciates that a cancellation may cause some hardship and a cancellation of his student visa may impact on his future migration status.

33. The Tribunal has considered the emotional and psychological hardship that may be potentially caused, having invited the applicant to comment, however the Tribunal gives more weight to the significance of the breach, the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant.

    Circumstances in which ground of cancellation arose

34. The applicant submitted to the Tribunal the circumstances around his extended time in Australia, and the different reasons which contributed to his enrolment history. He explained the challenges he found on his arrival with the different styles of study and academic standards that he was accustomed to, and how he found the course too difficult.  After consulting an agent, he indicated that he followed his advice and changed into a course that he was told would be easier to complete.  Whilst he questioned the legitimacy of this advice at hearing, he provided no evidence to suggest that he questioned it at the time that it was provided or that there was careful consideration of a change of course and the implications for future career consideration.  This enrolment change did not comply with condition – 8516 attached to the Subclass TU-573 visa and the applicant claims that an unsuccessful application was made to the Department for a Subclass TU-572 visa. No documentation is before the Tribunal to support this claim.

35. The applicant then enrolled in a third course of study at Cambridge International College for a Diploma/Bachelor of Business (Accounting) in 2016 with the COE cancelled due to non- payment of fees.

36. The applicant indicated, as referenced above, that he married his girlfriend when he was in India for his medical procedure, and that after returning to Australia, that their relationship broke down.  In his evidence, he indicated the emotional difficulties he faced in dealing with this, and that it further compounded his problems in studying, that the circumstances led to depression that he sought medication for. The applicant has not provided any documentary  evidence in relation to professional medical advice or evidence of any prescriptions for medication to deal with depression. He indicated to the Tribunal that he lost interest whilst recognising his obligation to fulfil the requirements of his student visa. Accordingly he sought further advice from a lawyer/migration agent and enrolled in another course. 

1. The Tribunal has considered these circumstances as outlined above both individually and cumulatively and the evidence before the Tribunal to support the applicant’s claims. Whilst the Tribunal has some sympathy with the personal circumstances that directly affected the emotional state of the applicant, the Tribunal gives limited weight to these reasons provided and more weight to the significance of the breach which is in excess of twelve months in which the applicant was not enrolled in a registered course of study. As such, the Tribunal gives significant weight to these considerations and little weight in favour on not cancelling the applicant’s visa.

   Past and present behaviour of the visa holder towards the department

2. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

   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

3. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

4. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Whether any international obligations would be breached as a result of the cancellation

5. There is nothing before the Tribunal to indicate there are international obligations to consider.

   Any other relevant matters

6. Whilst the Tribunal is not unsympathetic to the applicant’s wish to resume studies in Australia, there is no evidence before the Tribunal to indicate the applicant has sought assistance and guidance to deal with the different academic standards and processes in Australia or any compelling indication of what the applicant wishes to do or achieve with a qualification earnt in Australia. The applicant was persuasive in expressing his concern about the emotional affect a visa cancellation would have on him and his family and the “teasing” or ridicule they may be subject to. The Tribunal has given careful consideration to this aspect and has also considered the opportunities that may have been available to the applicant to mitigate these concerns. As a visa holder bound by the conditions of the visa, there is no supporting documentation to indicate he sought to advise the Department of his changing circumstances, or in fact, seek to change his visa class, in an endeavour to remain compliant with the conditions of his visa. The fact that he found the different studying techniques and circumstances challenging, whilst being married for a brief time, does not explain why, according to his submission to the Tribunal, that he has only completed one of his registered courses of study, a Diploma of Information Technology, since his arrival in Australia in late 2013.

7. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa  and that a breach in excess of 12 months is significant in the context of a student’s study period

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

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Helen Kroger
   Member