CHAHAL (Migration)

[2019] AATA 6122

CHAHAL (Migration) [2019] AATA 6122 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajpreet Singh CHAHAL

CASE NUMBER:  1727473

HOME AFFAIRS REFERENCE(S):          BCC2017/2938592

MEMBER:Elizabeth Tueno

DATE:14 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 October 2019 at 12:08pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – grandfather’s serious illness – mental health – return to home country to visit grandfather – grandfather’s death – treatment for mental health – study and career plans – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 November 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 condition 8202(a) in that he had not been enrolled in a registered course from 22 February to 27 August 2017.  The delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling 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 19 September 2019 to give evidence and present arguments.  The applicant was represented in relation to the review by his registered migration agent.

4. Prior to the commencement of the hearing, the applicant provided documents to the Tribunal including: a response to the delegate dated 11 September 2017; written submissions by Ms Diana Tong; his migration agent, dated 17 September 2019; certificate for the completion of a Diploma of Management; statement of attainment for an Advanced Diploma of Business; Consultation notes from Dr Thakur;  confirmation of enrolment in a Bachelor of Accounting at Group Colleges Australia commencing 28 August 2017 and ending on 21 August 2020. The Tribunal has taken this documents into consideration in addition to the oral evidence given by the applicant at the hearing. 

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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.

   Did the applicant comply with Condition 8202?

7. 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).

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

9. The applicant is a 23 year old Indian national.  He came to Australia in 2014 on a student visa.  He successfully completed a Diploma of Business Management and an Advanced Diploma of Business Management.  In October 2016, he enrolled in a Bachelor of Accounting course.

10. He agreed in evidence that he was not enrolled in a registered course of study from 22 February to 27 August 2017.  He said the reason for this was his grandfather was suffering from cancer.  He did not advise his college of what was going on at the time.  The applicant said that he was feeling helpless and depressed.  Ms Tong stated in her written submissions that the applicant returned to India to visit his grandfather between 26 December 2016 and 7 January 2017. 

11. By August 2017, he had recovered enough to re-enrol in the Bachelor of Accounting course, which he commenced and is one subject away from completing. 

12. 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

13. 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

    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

14. The applicant stated at the hearing that his reason for coming to Australia was to get an education before returning home to work for his father’s business.  There is nothing to suggest that the applicant came to Australia for any purpose other than for study.  Accordingly, the Tribunal accepts that the applicant travelled and stayed in Australia for the purpose of study and gives some weight against cancelling the visa.

    The circumstances in which ground of cancellation arose

15. As discussed above, the applicant said that he was unable to cope with studying when his grandfather in India became ill with throat cancer.  He said that he was very close with his grandfather and had lived with him for a period of time when he was younger before moving to the city with his parents.  After that, he would stay with his grandfather during school holidays.  He said that his grandfather was a big supporter of his.  His written response to the delegate in 2017, he stated:

    “Me and my grandfather was having a special bonding [sic].  Being a blue-eyed grandson, I used to enjoy all sorts of benefits and advantages at his behest.  My grandfather was not only a role model but also a guiding force for me. 

    While pursuing my studies diligently, I was shocked to learn that my grandfather is detected with cancer and is in the last stage of his life.  It was a big blow for me.  Immediately thereafter, went [sic] back to India in December 2016 to meet and take care of my ailing grandfather.  Though, I did not want to leave my grandfather but he forced me to come back and continue with my studies”.

16. The applicant gave evidence that he did not advise his college of what was going on at the time.  The applicant said that he was feeling helpless and depressed.  He used to locked himself in his room thinking about his grandfather.  He said that didn’t feel like eating or socialising.  He just wanted to Skype call with his grandfather. 

17. In April 2017, his grandfather passed away.

18. He eventually sought medical assistance on 9 May 2017.  Dr Thakur’s notes confirm that he was experiencing depression as he notes that the reason for his visit was “distressed/disturbed and scanty sleep/anxiety/low and irritable mood behaviours/depression/home sickness/social isolation”.  It was noted that the applicant was feeling depressed for loss of his grandfather.The notes indicate that he was counselled and given advice about depression.  The applicant confirmed that he was not prescribed medication however he was given ayurvedic medicine to help with his stress.  The applicant saw Dr Thakur again on 10 June 2017.

19. The applicant said that he eventually pulled himself out of his predicament after his brother spoke to their father about his situation.  His father in turn spoke to the applicant and told him he needed to move on and get on with life.  The applicant took this advice and re-enrolled in a Bachelor of Accounting.  The applicant is now just one unit away from completing this course and will finish in December 2019.  He said he wants his parents to attend for graduation and then he will return to India where he will do an internship in the accounting department of his father’s hotel.

20. The Tribunal accepts that the applicant was distressed and depressed about his grandfather’s illness and his death in April 2017.  It accepts based on the his oral evidence as well as the medical evidence that this had a profound effect on him that led to him being unable to study for some six months.  It is in these circumstances that his student visa was cancelled.  The fact that he has recovered and got on his with his studies is to the applicant’s credit.  The Tribunal also takes into account the fact that the applicant is now only one unit shy of completing his studies.

21. Accordingly, the Tribunal gives some weight in favour of not cancelling the visa under this consideration.

    The extent of compliance with visa conditions

22. Aside from not complying with Condition 8202 for a period of 6 months, there is no evidence to suggest that the applicant has not complied with any other condition of his visa.  Accordingly some weight is given in favour of not cancelling the visa.

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

23. The applicant said that it would be really hard on him if were unable to complete his studies.  He said he had spent five years in Australia and if he cannot get his degree, there would be a black mark over his future.  He said there would be a three year ban on him re-entering Australia if his visa is cancelled.  He also said it would not be good for his father’s reputation when his relatives and work colleagues found out about that his visa had been cancelled and that he did not have a degree.  He also said he needs to be “an idol” for his brother as he is the eldest and needs to set a good example. 

24. In addition to the evidence given by the applicant, the Tribunal considers it would be emotionally and financially hard on the applicant to have successfully completed all but one of the units of the Bachelor of Accounting over the last 2 years and is due to complete the course in approximately 2 months from now. 

25. The Tribunal accepts that the applicant will suffer some hardship and it gives some weight in favour against cancelling the visa. 

26. Past and present behaviour of the visa holder towards the department

27. Aside from not complying with Condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa.  Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department.  Accordingly the Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

28. This is not applicable.

    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

29. The applicant stated that if his visa were to be cancelled then he would be prevented from entering Australia for three years.   

30. There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation. 

31. If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa.  Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention.  The applicant could also be precluded from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013.  The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.

32. The Tribunal gives a little weight against cancelling the visa under this consideration.

    Australia’s international obligations

33. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations.  The applicant has no children and is not in a relationship.  Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa. 

    Any other relevant matters

    The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Elizabeth Tueno
    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.