Chahal (Migration)

[2020] AATA 3516

Chahal (Migration) [2020] AATA 3516 (15 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Prabhpreet Kaur Chahal

CASE NUMBER:  1924298

HOME AFFAIRS REFERENCE(S):          BCC2019/2693984

MEMBER:Mark O'Loughlin

DATE:15 July 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 15 July 2020 at 5:30pm

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 – circumstances giving rise to non-compliance – problems with education provider – health condition – not beyond the applicant’s control – 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 26 August 2019 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 relevant registered course in breach of condition 8202 and the grounds for cancelling the visa outweigh the reasons not to cancel it. 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 11 March 2020 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by her registered migration agent.

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. 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.

7. In making its decision the Tribunal has relied on the following documents that were provided to the Tribunal by the applicant:

   a.A copy of the decision of the delegate dated 26 August 2019;

   b.Submissions prepared by the applicant’s registered migration agent and dated 5 February 2020 together with annexures;

   c.An email from the applicant’s registered migration agent dated 6 February 2020 and annexed medical note dated 31 January 2020;

   d.Further email from the applicant to the registry of the Tribunal seeking a postponement of a hearing listed for 13 February 2020 in order to obtain medical evidence; and

   e.Note from Dr. Sadaf Khan of Stud Road Medical Centre undated addressed “To whom it may concern” and setting out that the applicant “consulting our clinic for the following issue and under management” and referring to the applicant’s past history of iron deficiency, vitamin D deficiency, depression, obesity and PCOS.  The note also sets out “current medications”.

8. After the hearing the Tribunal sent Australian Study Link Institute an invitation to provide information in writing and received a response by email on Friday 3 April 2020. As a result of that email the Tribunal sent the applicant an invitation to comment on or respond to information under s 359A. The Tribunal has had regard to both the response from Australian Study Link Institute of 3 April 2020 and to the applicant’s reply dated 28 May 2020.

9. The Tribunal has not relied on any other documents in making its decision.

   Did the applicant comply with Condition 8202?

10. 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)

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

12. The applicant gave evidence that she was granted a 573 Student visa and came to Australia on 30 January 2016. She was enrolled in a diploma of beauty therapy leading to a Bachelor’s degree in dermatology.  A 573 visa is issued to an applicant who is enrolled in a higher education course, which includes a Bachelor’s degree.

13. She said that after about six months she changed her course to a Certificate 3 in commercial cookery. At the same time she enrolled in further courses, namely a Certificate 4 and a Diploma in Hospitality Management.

14. She agreed that her 573 visa required her to be enrolled in a higher degree course and that the certificate 3 and 4 and the Diploma in Hospitality Management were not higher degree courses. She said that her University had indicated to her that when she finished the certificate three and four and the Diploma in Hospitality Management, they would enrol her in an Advanced Diploma.  The Advanced Diploma is the only one of these courses that satisfies the requirements of a 573 visa.

15. The applicant’s evidence was that she finished her Diploma in Hospitality Management in February 2019 but that the University refused to award her the qualification.

16. The applicant said that the University asked her to submit further assignments which she did submit in March 2019. She said that in that month she also enquired about being enrolled in the Advanced Diploma of Hospitality Management but did not get a satisfactory response.

17. She said that she did not get any emails or documents from the University refusing to confer her qualification.  Her evidence was that her approaches to the University to clarify the situation were made in person at the front desk, so she does not have corroborative evidence of those either. She said she did not remember with whom she dealt on these occasions.

18. Under section 359AA the Tribunal put information contained in records from the Provider Registration and International Student Management System (PRISMS). Those records said that she finished her Diploma of Hospitality Management on 14 February 2019. On the assumption that this meant that the applicant had passed her Diploma in Hospitality Management and the qualification had been conferred, the Tribunal put to the applicant that this information would be the reason or part of the reason to affirm the delegate’s decision.

19. The applicant maintained her position that the Diploma in Hospitality had not been conferred.

20. After the hearing the Tribunal sought clarification of the situation and as a result finds that the applicant had not passed her Diploma in Hospitality Management and the Tribunal does not rely on the PRISMS records as suggesting that she had (or for any other reason).  It appears that, in describing the applicant as having “finished”, it does not mean she had ‘passed’ her course.

21. Submissions provided on behalf of the applicant dated 5 February 2020 (which the applicant signed and adopted as true and correct to the best of her knowledge) concede that the ground for cancellation exist as the applicant had not complied with subclause 8202 (2).

22. The applicant’s evidence to the Tribunal was that she was unable to obtain an enrolment after February 2019.

23. The applicant agreed that she was not enrolled in a relevant course between 14 February 2019 and the cancellation of her visa on 26 August 2019.

24. On the evidence before the Tribunal, the applicant was not enrolled in a registered course during that time. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

25. 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 Procedural Instruction ‘General visa cancellation powers’.

26. The applicant gave evidence that she came to Australia on the 30^th of January 2015. She came on a 573 visa which is a student visa that requires enrolment in a higher degree course as a condition of that visa.

27. She was enrolled in a Diploma in Beauty Therapy leading to a Degree in Dermatology.  After 6 months she changed to commercial cookery and agreed that from the time of that change she was not enrolled in a higher degree.

28. She gave evidence that the University had indicated to her that when she had done the diploma they would enrol her in a degree.

29. The Tribunal referred the applicant to the submissions that had been made and she agreed that there are 2 main issues that she says constitute reasons not to cancel her visa.

30. The first issue was the problem with the college and what she described as their refusal to grant her her Diploma.

31. She said that she spoke to someone at the college which was Australian Study Link Institute of Technology. She said that her discussions with them were held in person and that she does not have documents or copies of emails or anything else in writing from them.

32. She said that she was told in February 2019 that they would not issue her diploma because she had not completed her assignments. She gave evidence that she passed the assignments in but did not hear from the college.

33. She said that when she enquired later, they asked for the assignments again and so she submitted them once more.

34. The applicant said that she had not been able to enrol in any other college because she had not been given a letter of completion.  She said that she had been told that she had to pay further fees, or she would have to redo her assignments.

35. After the hearing the Tribunal sought to clarify the applicant’s evidence by sending a request for information to Australian Study Link Institute. 

36. The request for information sought details of the applicant’s progress in her studies with the Institute and a response to her oral evidence that she had completed her Diploma in Hospitality and Management in mid-February 2019, but that she had not been provided with a certificate or other confirmation that she had finished the course.

37. The Institute was also asked whether the applicant is entitled to the award of her Diploma and if not, whether she been advised what she must do to be so entitled.

38. The Institute replied to the Tribunal by email of 3 April 2020 confirming that the applicant had been enrolled in the Diploma of Hospitality Management and that she completed the course on 14 February 2019, but that she did not complete the qualification because 3 units were marked “not competent”.

39. The Institute advised that the applicant would only be entitled to a “statement of attainment” to reflect the parts of the course that she had passed.

40. The Institute further advised that, due to outstanding fees, she had not been sent a statement of attainment.

41. The Institute further indicated that the applicant had met her outstanding fees on 14 March 2019 but there had not been any further official application for further studies with Australian Study Link Institute.

42. The Tribunal then wrote to the applicant advising her that the Institute had indicated that she had not qualified for the award of a Diploma of Hospitality Management and had been marked “not competent” in 3 units.  She was also advised that she had not qualified for the award of the Diploma and that she had not been provided with a statement of attainment because she owed fees to the college.

43. She was advised that this information would be the reason or part of the reason for affirming the delegate’s decision, because the it suggests that the applicant’s failure to maintain her enrolment was not a matter that was outside of her control.

44. The applicant responded by letter to the Tribunal dated 28^th of May 2020. In that letter the applicant’s representative indicated that the applicant had not received any message or email regarding her failing in 3 units in the course. The letter said “she had never received any message or email regarding her failing in 3 units. They had never informed her about not passing. She is confident that she had passed all the units otherwise college should have provided her anything in written or any transcript.”

45. The Tribunal finds that the applicant had not passed all of the units in her Diploma of Hospitality and Management.

46. There is no evidence that the applicant was advised that she had not passed her course.

47. The Tribunal notes that in evidence the applicant said that she had passed the course. In response to the clear indication that she had not, she said that she had assumed that she had passed the course because she had not been advised otherwise.

48. There is nothing to corroborate the applicant’s evidence that she believed she had further assignments to submit. Whether or not the applicant knew that she had failed the course, the Tribunal finds that the applicant knew that she had not passed.

49. The Tribunal finds that the applicant was not misled into the belief that she had completed the course.

50. The Tribunal finds that to the extent that the applicant was confused about whether or not she had passed the course, such confusion was not a product of representations made by the Institute.

51. Tribunal finds that the applicant’s confusion, to the extent that it existed, was a creature of her own misunderstanding of informal communications between herself and the Institute.

52. The other issue that the applicant said had significantly affected her failure to maintain enrolment was her health.

53. This matter had been raised in submissions provided by the applicant’s representative dated the 5^th of February 2020. Those submissions it was stated that at about the time the applicant’s enrolment finished in mid-February 2019, the applicant was suffering from a gynaecological complaint and from anxiety.

54. The submissions further said that she was under severe stress and had tried to harm herself physically.

55. Annexed to the submissions question documents from a GP Dr Sadaf Khan indicating that he had seen her on 4 occasions between 23 July 6 August 2019 and another note from a different GP, Dr Effat Farag, dated 31 January 2020 stating that the applicant is suffering from depression.

56. There is nothing in this evidence to suggest that the applicant was suffering from physical or mental difficulties at the time of the breach being mid-February 2019.

57. The applicant’s representative’s submissions say that she was unable to get a detailed report about her mental and physical health because the GP who was seeing her was not available. She sought more time within which to get a detailed report but did not ultimately provide one. A one month adjournment had been granted to the applicant but no relevant report was provided.

58. The Tribunal finds that the applicant’s health was not a contributing factor to her breach of the enrolment condition.

59. There is no evidence that the visa holder has a purpose other than study for her travel to or stay in Australia.  There is no evidence of any compelling need to travel to or remain in Australia other than study.

60. The applicant was not enrolled in a registered course from 15 February 2019 until the cancellation of her visa on 26 August 2019.  The Tribunal finds that this breach is relatively extensive.

61. The applicant said that the cancellation of her visa would cause her hardship because of the stress and depression from which she had been suffering.  There is no evidence that this is the case.  The Tribunal finds that the applicant has not established that the cancellation of her visa would cause her more than disappointment and finds that this is not a ”hardship” that weighs against cancelling the applicant’s visa.

62. The applicant said that she had wasted time and money with her visa problems.  There is nothing to suggest that a decision not to cancel her visa will ease those problems and the Tribunal finds that they are not relevant “hardships” for the purposes of this application.

63. The applicant gave evidence that she would be compromised in her career if she does not finish her hospitality qualifications although she did not have any evidence to corroborate that complaint.  She said that she planned to return to India and open a restaurant but the Tribunal is not satisfied that the qualifications that she proposes to obtain will assist her in that regard and notes that she does not suggest that she will be seeking work but will be opening a business with the help of her family. 

64. The Tribunal is not satisfied that the applicant will suffer hardship in her future career if her visa is cancelled. The Tribunal does not accord this factor weight against cancelling the applicant’s visa.

65. The Tribunal is not satisfied that the grounds for cancellation arose in circumstances that were not within the applicant’s control.  The Tribunal does not accord that consideration any weight against cancelling the applicant’s visa.

66. There is nothing in the applicant’s past and present behaviour towards the Department that suggests that her visa should be cancelled.  The Tribunal does not accord this factor weight against cancelling the applicant’s visa.

67. There is no evidence that there would be consequential visa cancellations under s.140 if the applicant’s visa is cancelled.  The Tribunal does not accord this consideration any weight for or against cancellation of the applicant’s visa.

68. If the applicant’s visa is cancelled there will be the usual legal consequences.  She will become an unlawful non-citizen and she may be detained and removed from Australia if she does not leave of her own accord.  She will also be restricted in making further applications for visas to Australia.  In particular, Public Interest Criterion 4013 would apply and she may not be granted a further Student visa for 3 years.

69. These are the usual consequences of visa cancellation in these circumstances and the Tribunal accords these legal consequences no weight against cancelling the applicant’s visa.

70. The applicant did not seek to put any other relevant matters before the Tribunal and it does not appear to the Tribunal that there are any such matters.

71. There is no evidence that cancellation of the applicant’s visa would breach any of Australia’s international obligations and these considerations do not weigh against cancelling the applicant’s visa.

72. The Tribunal has weighed the evidence that the applicant has put before it.  The Tribunal is not satisfied that the breach occurred for reasons outside the applicant’s control.  Further the Tribunal is not satisfied that applicant has demonstrated that she will suffer hardship if her visa is cancelled.

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

    DECISION

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

    Mark O'Loughlin
    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.