BRAR (Migration)

[2018] AATA 5957

BRAR (Migration) [2018] AATA 5957 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr LOVEJOT SINGH BRAR

CASE NUMBER:  1619281

HOME AFFAIRS REFERENCE(S):           BCC2016/3054595

MEMBER:Wendy Banfield

DATE:3 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 December 2018 at 11:27pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant changed to related Vocational courses – decision under review affirmed

LEGISLATION

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 November 2016 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 under s.116(1)(b) on the basis that that the applicant had not been enrolled in a registered course of study from 7 April 2015 until the Department issued a Notice of Intention to Consider Cancellation (NOICC) letter on 26 October 2016. Therefore, the requirements of condition 8202(2) attached to the visa were not met. As the applicant did not comply with condition 8202, according to the Migration Act, the visa may be cancelled. The issue in the present case is whether that 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. A student visa was first granted on 30 September 2013 and was valid until 30 September 2017. The applicant had been granted the visa to study a Bachelor of Information Technology. He commenced his studies with a Diploma of IT leading to a Bachelor’s but did not continue and did not undertake the Bachelor degree. At the time of the visa cancellation, the applicant had not completed any courses in Australia.

4. The applicant appeared before the Tribunal on 4 October 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. The applicant submitted the following evidence in support of his application for review:

   ·     Representative’s submission dated 27 September 2018;

   ·     IELTS Test Report Forms;

   ·     Statement of Results and Diploma dated 17 April 2018 from Sydney Metro College for a Diploma of Business;

   ·     Enrolment letter from AHMI dated 27 September 2018 in regards to an Advanced Diploma of Business;

   ·      Letters dated1 November 2016 and 28 September 2018 from [a named health professional];

   ·     Receipts from 2016, 2017 and 2018 for consultations with [two named health professionals];

   ·     Certificates of enrolment in the following courses: Diploma of IT, Bachelor of IT, University Foundation Studies, Bachelor of Business and Commerce, Diploma of Management, Certificate IV in Business Administration, Diploma and Advanced Diploma of Management, Diploma of Leadership and Management, Diploma and Advanced Diploma of Business;

   ·     Letter of offer for a Bachelor of Business from Group Colleges Australia commencing 21 January 2019 and ending on 3 December 2021.

7. Following the Department’s NOICC letter, on 1 November 2016 the applicant had submitted an email response addressing the reasons for his failure to study which has also been taken into account in this decision.

   The hearing

8. The applicant came to Australia to study a Diploma leading to a Bachelor degree in IT. His background was a Diploma in computer applications prior to coming to Australia. On his arrival he commenced studying a Diploma that was to lead on to a Bachelor degree. He said he enrolled and attended the Diploma course but did not pass. He claimed he had difficulty understanding and was too hard so he only did the first semester.

9. According to the applicant, because of his difficulties he spoke to his education provider and they invited him to do something else, so he chose a Foundation course leading to a Bachelor degree in Business and Commerce. In the second semester he studied the foundation course but failed the exams. The applicant said he was [unwell] at the time as his family in India had business problems and [there was a family issue]. He said he was not focussing on his studies but did not ask for leave. Instead the applicant enrolled in a private college and began a Diploma of Business.

10. The applicant was asked why he did not seek to change the conditions of his visa in order to avoid breaching his visa. He said he just followed other students and did not do the right thing. He said he started the Diploma of Business in 2014 but did not complete it due to the problems back in India that led to [a health condition]. He claimed to have been enrolled the whole time except for three or four months prior to the cancellation when he was not in good condition.

11. After the cancellation, the applicant said he had treatment and has now completed a Diploma of Business and is studying an Advanced Diploma. The applicant conceded he had breached the terms of his visa but wanted to explain his circumstances. He reiterated he [was affected by a family issue]. Also his father had a family/business dispute and the applicant was very upset and unable to focus on his studies or his future.

12. The applicant said he decided to study in Australia for a better future and because the universities are better. He said he did not have a plan following his studies except to get a better job either here or back in India. The applicant declared he had not breached any other visa conditions. At the time of cancellation, the applicant said he was taking treatment from the doctor for [his condition] but he did three IELTS English exams. He then gained admission to Sydney Metro College to do a Diploma of Business which he completed in April 2018. After completing an Advanced Diploma the applicant said he expects to take up a Bachelor degree beginning in January 2019.

13. The applicant was invited to make submissions regarding the hardship that would result from his visa being cancelled. He said he [had a health condition] and not studying properly. After further explanation from the Tribunal the applicant said he is in better condition now, is on the right track and wants to finish his studies. He was asked how he can be sure he will not face similar difficulties in future, the applicant said he does not want to be like that again. Regarding any further study, the applicant said he has not planned what he will do after a Bachelor degree.

14. The Tribunal asked the applicant what treatment he had received for his [condition]. He said he has had appointments for “like speech therapy”, and prescription medication for [his condition]. (vague)

    Evidence of the representative

15. The representative passed up documents in relation to the applicant’s treatment and prescriptions. It was submitted the applicant last had an appointment in January last year. The applicant apparently tried three different colleges and programs after ceasing Diploma plus Bachelor at UTS and Foundation plus Bachelor at the same place. The representative submitted the evidence demonstrated the applicant tried to find a study program that suited him and the issue was whether the visa he had was the right one, and perhaps he should have committed to a Diploma without going on to a Bachelor first.

16. At the time of cancellation the representative submitted the applicant was [unwell] due to a family disruption to do with business where his family lost out, leading to [health issues]. In addition, his [family issue arose] and as a result he was unable to continue studying. It was submitted the applicant did take three IELTS exams shortly after his visa was cancelled which demonstrates he was trying to continue, as further evidenced by his multiple prior enrolments. The representative said after the cancellation he did not simply work full time or go to the beach but continued to try and find a study path. In the event he successfully completed a Diploma of Business going on to an Advanced Diploma and with a recent offer of a Bachelor degree. The representative acknowledged the applicant was in breach of visa conditions because he did not maintain enrolment in a Bachelor degree but submitted he should nonetheless be able to finish his studies. It was claimed the evidence indicates the applicant has demonstrated he is on the correct trajectory and found a study path that is right for him.

17. The applicant was asked if he considered putting his studies on hold to deal with his personal problems. He said he was afraid of appearing to be a failure overseas and decided to have treatment here. He said he was trying to study and is confident he is now on the right track. The applicant confirmed he found IT too difficult and is pursuing Business instead. The applicant said the issues that happened to him were beyond his control and affected his [health].

18. 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

19. 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?

20. 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).

21. In the present case, the applicant’s visa was cancelled on the basis he had not continued to be a person who would satisfy the primary criteria for the grant of the visa. He was not enrolled in a course of study commensurate with his Subclass 573 Higher education student visa and was therefore in breach of Condition 8202(2)(a).

22. The applicant conceded he did not comply with the conditions of his visa regarding his student enrolment. Therefore, as the conditions of his visa were not met, the applicant’s visa may be cancelled.

23. On the evidence before the Tribunal, the applicant was not enrolled to study as required by the terms of his visa. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel visa

24. 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

25. The applicant travelled to Australia as the holder of a student visa which was granted on 30 September 2013 and was valid until 30 September 2017. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

26. In responding to the Department considering cancelling his visa the applicant claimed he had been unable to continue studying due to [his condition] but had been undertaking treatment and wanted to continue to pursue his studies. As of the date of the hearing, the evidence was that the applicant has since completed a Diploma of Business and is enrolled in an Advanced Diploma of Business. He has a letter of offer to commence a Bachelor of Business from 21 January 2019 to 03 December 2021.

27. The Tribunal notes the applicant is currently studying and has approval to enrol in a Bachelor’s degree in 2019. However, he did not provide any particular reason for wishing to obtain qualifications in Business, or a Bachelor degree. He did not demonstrate specific plans for his future and advised only that he wanted to be able to get an education and a better job.

28. The Tribunal has carefully considered the evidence before it and is satisfied the applicant originally came to Australia to study. However, while the applicant may say he wants to continue his studies, he has not demonstrated a powerful or convincing reason for doing so. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

29. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

30. 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 his [health condition] and not being able to focus on study. When asked why he did not defer his studies due to his [health] problems, the applicant spoke about not wanting to appear to be a failure. The representative stated in the written submission that having to leave Australia would be devastating and the applicant would feel shame and cultural disconnection and would be branded a failed student.

31. The Tribunal acknowledges that the cancellation of the visa would mean the applicant would not be able to continue his studies in Australia and this may cause him a degree of financial, psychological or emotional hardship. The Tribunal has given some weight in the applicant’s favour in this regard.

32. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     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

33. The applicant’s visa was cancelled because he did not maintain enrolment in the Higher Education Sector which was a breach of visa conditions. The applicant gave three distinct reasons for this; first, he had difficulty finding a study program he was capable of; second, his family had business problems and third, [a family issue] in January 2014 which led to [a health condition] and an inability to focus on study.

34. The applicant gave evidence that he found his original Diploma of IT, leading to a Bachelor degree too difficult. He changed to a Foundation course that was also to lead to a Bachelor degree but did not pass. The applicant attributed his poor results to his family’s business problems and his girlfriend’s engagement to another person. The applicant did not seek compassionate leave but instead enrolled in a private college and began a Diploma of Business. However, by the time the visa was cancelled the applicant had not completed any courses of study in Australia.

35. The representative made submissions about the applicant’s inability to find a study program that suited him and as a consequence, he had enrolled in various courses that were not pursued or completed. The Tribunal accepts the applicant may have had problems with the higher education path but it was open to him to apply to change the terms of his visa to allow him to study at a lower level. During the hearing the applicant acknowledged he did not do the right thing and said he just followed other students.

36. No independent evidence was provided about the family business difficulties, neither was there a satisfactory explanation of what had happened. The only detail provided was in the applicant’s response on 1 November 2016 to the Department’s Notice of Intention to Consider Cancellation where he said “in 2015 my family divided their business with my uncles so it gave me a lot of stress due to some family disputes…” This does not explain how or why the applicant was personally affected or why it contributed to his inability to study or complete courses for a long period.

37. Regarding the applicant’s claim [about his family issue] early in 2014, even if this occurred, it does not account for his inability to focus on studying for several years. According to his [health professional], the applicant sought professional help for his [condition] on 27 September 2016. The Tribunal notes there is no documentation in respect of that first consultation. A Medical Certificate from [one named health professional] dated 1 November 2016 stated the applicant was suffering a [specified condition], a condition that had worsened over the previous six months and had a background of untreated [condition] over two years. It also said the applicant’s recovery would take 12 to 16 weeks. This medical certificate (and a letter from the same [health professional] on 28 September 2018) is brief and does not contain any detail about the reasons for the applicant’s condition or how it was assessed. Neither document is a comprehensive [assessment] as would be expected given the applicant is said to have suffered long term [symptoms] during which he was said to be “[detailed deleted]”. The applicant provided receipts for visits to a [health professional], also at [the same centre] in 2017 but there are no reports and no details of what occurred during those consultations.

38. The Tribunal considers that in the applicant’s case, the severity of his [condition] may have been exaggerated. This is because the reasons given to the Tribunal, that his family had business difficulties and his [family issue], are part of the vicissitudes of life that most people face. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while disregarding the conditions of his student visa and failing to study or progress as a student over a long period of time.  

39. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. The applicant acknowledged he did not do the right thing after he discontinued enrolment in the Higher Education Sector and the Tribunal does not consider he was incapacitated by [his condition] to the extent he was unable to take appropriate measures such as deferring his studies until he had resolved his personal matters. As stated by the representative, the applicant had enrolled in, and discontinued, numerous courses during his time in Australia which indicates he was capable of carrying out everyday activities.

    ·     past and present behaviour of the visa holder towards the department

1. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

   ·     whether there would be consequential cancellations under s.140

2. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

   ·     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 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 consequences of the legislation and is not sufficient reason for the applicant’s visa to not be cancelled.

   ·     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

4. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

   ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

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

   ·     any other relevant matters

6. The representative urged the Tribunal to consider that the applicant undertook three IELTS English tests after his visa was cancelled and that he had tried to continue his studies, as evidenced by his multiple prior enrolments. It was claimed that after the cancellation, the applicant continued to try and find a study path and is now on the right track. In this regard the Tribunal notes the applicant gave evidence that he had not been enrolled for around three months prior to cancellation. It appears the applicant was then triggered to act once he received the Departments Notice of Intention to Consider Cancellation on 26 October 2016 and not because, after trying for two to three years, he had coincidently finally found a study path that suited him. On 1 November 2016, days after receiving the Notice, the applicant obtained a Medical Certificate from his psychiatrist and on 10 December 2016 the applicant took the first of three IELTS English tests. Only then did he enrol in a Diploma of Business and complete it. As already stated, the Tribunal does not accept the applicant was unable to take steps to ensure he did not breach visa conditions at the relevant time which was when he decided the Higher Education Stream was too difficult. The Tribunal is not satisfied that there are any other relevant reasons why the applicant’s visa should not be cancelled.

   Conclusion

7. 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 in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions early on and not completing any course of study until 25 February 2018 to be unreasonable. The Tribunal is not satisfied the problems encountered by the applicant account for his failure to comply with the terms of his visa.

8. The Tribunal concludes that the ground for cancellation in s.116(1)(b) exists and having regard to all the relevant circumstances, as discussed above, the Tribunal considers the visa should be cancelled.

   DECISION

9. 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.