Chawla (Migration)

[2020] AATA 1236

Chawla (Migration) [2020] AATA 1236 (17 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harsimran Singh Chawla

CASE NUMBER:  1825717

HOME AFFAIRS REFERENCE(S):          BCC2018/1676858

MEMBER:Joseph Lindsay

DATE:17 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 January 2020 at 5:19pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – financial hardship – family medical difficulties – limited academic progress – accommodation difficulties – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), 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 28 August 2018 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. On 16 December 2019 the applicant attended a hearing with the Tribunal.

3. 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

4. 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?

5. 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).

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

7. As part of his application for review, the applicant provided a copy of the delegate’s decision to the Tribunal and the Tribunal has considered the information in that decision. The applicant noted that there was a reference to a person named Anmoldeep Singh Chauhan in the decision record, and that he does not know Anmoldeep Singh Chauhan. The Tribunal accepts this submission from the applicant and places no weight on this information in reference to Anmoldeep Singh Chauhan.

8. In the hearing, the applicant indicated that he had read and understood the delegate’s decision record dated 28 August 2018.

9. The applicant agreed that he had not been enrolled in a registered course of study since 5 October 2017 and that there were grounds for cancellation of his student visa.

10. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 5 October 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

11. 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’.

12. In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered course of study since 5 October 2017.

13. The Tribunal referred to the documentation the applicant had provided to the Department in his response to the Notice of Intention to Consider Cancellation (NOICC) dated 31 July 2018, including:

    -The information in respect to the applicant’s issues with being underpaid when he was working at a Caltex service station.

    -A document from Dr Jasani dated 13 August 2018, indicating that the applicant has visited Dr Jasani on 2 and 13 August 2018 about the issues regarding the applicant’s sick mother and his parents’ financial hardship.  

    -The information in respect to the applicant’s mother’s medical treatment at the [named health centre] in 2018. 

14. The Tribunal noted that the applicant provided this information in his application to the Tribunal.

15. The Tribunal noted that applicant had applied to the Tribunal for a fee reduction and had provided associated documentation.

16. The Tribunal also noted the email response to the NOICC dated 13 August 2018 in which he said:

    My name is Harsimran Singh Chawla born on 24th December 1996, Cancellation ID C6ZSB78YR and File number BCC2018/1676858 is writing this email explaining my response in brief to Notice of Intention to consider cancellation of Student (Temporary)(class TU) Higher Education Sector (subclass 573) visa under s116 (General Power) of the Migration Act 1958.

    I have suffered from Anxiety and Depression during the period of study in Spring 2017 as having been obstructed by the wage fraud by the Caltex franchisee to which I worked from December 2014 to January 2016 and because of my regular meetings with the Lawyer representing my side due to which time of routine study was cut short hence affecting my performance in class. Travelling expenses and other costs related in this matter added up very quickly hence putting me into financial burden leaving me short of my tuition fee for that semester and result of which I couldn't enrol in summer break study session. I have attached my Statutory Declaration from this matter and Letter of Offer from Caltex representative admitting to this underpayment fraud.

    3rd February 2018, Before I could revive myself from pain and depression and get myself enrolled into autumn study session I found out that my mother is diagnosed with [a medical condition] and had to go through extensive medical treatment which came with huge medical expenses. My father being the only earning hand back home had to be absent from Business to care for my mother thus suffering major loss at business, which put the family in financial hardship for short while. Due to these unforeseen circumstances I was unable to enrol myself into autumn and spring study sessions. I have attached documents as proof of above circumstances.

    Cancellation of my student visa will be a shock to my mother and can have devastating effect my mother's mental health. Being young and vulnerable and having been spent thousands of dollars on my studies in Australia and due to possibility of having the credit value of my study reduced to zero, I see uncertain future without education and it can have significant impact on my mental health and wellbeing. I have included my latest medical assessment In attached documents.

17. The Tribunal also noted that applicant had provided documents to the Tribunal including an email dated 9 December 2019 enclosing:

    -An affidavit from the applicant’s parents.

    -An email dated 4 October 2017.

    -An email dated 21 December 2017.

18. The email dated 9 December 2019 said:

    I Harsimran Singh Chawla is writing this Email to provide additional evidence that i wish to rely on during my hearing on 16th December 2019.

    On 25th September 2017, I have met with a Registered Agent named Rehana Sultana who worked at EEVS Education and Visa Services. During our meeting i have discussed applying for new Coe, to which she has advised me to get offer letter for further studies from University of Technology Sydney (UTS) and Central Queensland University (CQU) but looking at my academic transcript she has later advised that i am unlikely to get the offer letter from these institutions.

    She has later advised me to apply for studies at Victorian Institution of Technology, to which i agreed to and put in an application. My application to Victorian Institution of Technology was unsuccessful and i have attached evidence in form of a Screenshot of the Email from Institution.

    I have also attached a the Scan of Original copy of Affidavit attested on 26th August 2014 which contains the Names of parents, Raghbir Singh Chawla and Jagdeep Kaur Chawla. In affidavit parents declare to bear the part of expenses for the 4 year studies in Australia. The Affidavit was submitted with the documents required to apply for Australian Student Visa from India. The Affidavit holds significance in representing the direct argument to the Immigration officers claim in Decision Record sent on 28th August 2018, Page 5 officer has claimed that Anmoldeep Singh Chauhan has provied financial guarantee to the Department before the visa was granted to cover the cost of studies, accomodation, travel and overseas health cover. I have no relation to anybody named Anmoldeep Singh Chauhan and neither could i find the name in any of my records.

19. The Tribunal also noted that before the hearing the applicant had provided to the Tribunal documents including:

    -A GP Mental Health Care Plan and consultation notes dated 22 July 2019.

    -A letter from Western Sydney University (WSU) dated 7 August 2017 confirming that the applicant was then enrolled in the Bachelor of Engineering Course.

    -A Statutory Declaration dated 5 August 2014 signed by Parvinder Kaur.

    -A form 1008 application for a Bridging Visa E.  

20. The Tribunal asked the applicant how he went with the Bachelor of Engineering course at WSU. In response he said he started the course in 2014 and he was given a visa when he was a minor. The Tribunal again asked the applicant how he went with the Bachelor of Engineering course at WSU. In response he said he passed the first 8 units (first two semesters) but he was kicked out of his house by his legal guardian (his aunt) before he tuned 18. He then went to live at [a specified address]. He said all this happened in 2014.

21. The Tribunal asked the applicant why he was kicked out. He said that he lived in their garage. He said there were two cats who lived in the garage with him, but he did not like the smell of cat food and he did not wish to live with cats. He said he asked them to take the cats away and then his aunt got into an argument with him. He said his aunt asked him to move out. He then went to live at [the specified address].

22. The Tribunal again asked the applicant how he went with the Bachelor of Engineering course at WSU. In response he said he was not passing his subjects.

23. The Tribunal put to the applicant that in his submissions he made reference to an issue with his academic performance. The Tribunal asked the applicant when he started failing his subjects, and he responded that this occurred in semester one of 2015. Tribunal asked the applicant why he started failing his subjects, and he responded that it was because he was made to live independently when he was young and this was stressful for him.

24. The applicant admitted to struggling with the Bachelor of Engineering course. He indicated he got some help with fellow students and teachers. He said the subjects that caused him most difficulty were Soil Engineering and Material Mechanics. He indicated that he had trouble understanding the units. He said he was putting the effort in to his studies, and he was attending his lectures and practicals.

25. He said he started a job at that time (2015) but he was having difficulty in balancing working and going to university. He said he had no car, and had transportation problems. He said he would go to university 5 days a week and he would work on weekends. He admitted that he found it hard to balance work and study.

26. The Tribunal put to the applicant that as part of getting his student visa he had provided a financial guarantee that he could support himself and pay his course fees. In response he said he was living with his legal guardian and they asked him to start a job to pay rent. He said his uncle’s friend hired him for work.

27. The Tribunal put to the applicant that he did not cease to be enrolled until 5 October 2017. The Tribunal asked the applicant what was happening around 5 October 2017 that led to him no longer being enrolled. 

28. In response he said that he had been caught up in fraud with Caltex.

29. The Tribunal put to the applicant that it appreciated he had been caught up in a fraud matter with Caltex, but asked him why he stopped studying.

30. In response he said that he had been bullied at work and at university. He said that because he was a Sikh he used to look different because he used to wear a turban and beard. However, he was not wearing a turban and beard at the hearing. The Tribunal asked him why he changed his appearance, and in response he did not like being looked at with “bad eyes” by people. He said even students at university would not want to help him.

31. He then admitted that he lost interest in civil engineering, and that was the reason why he contacted his agent. He said he had been failing many times and had therefore lost interest.

32. The Tribunal asked the applicant if he spoke to WSU about his options noting he had been failing his subjects. He said he did contact WSU. He said he also experienced bullying and low self-esteem.  He said he was going to get counselling but because he goes through anxiety and can’t confront people he failed to show up to counselling.

33. The Tribunal asked the applicant if there was any other reason why he failed to stay enrolled at WSU.

34. In response he said there was no other reason.

35. The Tribunal asked the applicant if he paid his course fees, and he indicated that he did not pay his fees for late 2017 – and therefore WSU ceased his enrolment.

36. The Tribunal asked the applicant what he did between 5 October 2017 and 31 July 2018, which was when the Department sent him the NOICC.

37. He said he met with his agent and discussed a further enrolment. However, he indicated that because he has a low Grade Point Average (GPA) he was unlikely to get an offer from another provider.

38. The Tribunal put to the applicant that if he realised he was failing, why he did not consider doing another course he might be able to pass. He said he gave up in 2017.

39. The Tribunal put to the applicant that he stayed on a student visa for 10 months without an enrolment. He claimed he applied for another course but his application was unsuccessful.

40. The applicant then said his mother got sick in February 2018 ([specified condition]) and his father has to pay his mother’s medical bills.

41. The Tribunal put to the applicant that it appeared that his mother’s illness in 2018 appeared to have nothing to do with him ceasing his enrolment in 2017. In response the applicant said he had to go to meetings with Caltex that took up a lot of his study time, and this situation caused his anxiety and depression.

42. The Tribunal put to the applicant that that only information in respect to the applicant’s mental health was the medical certificate from 2018, and the mental health plan in 2019.  The Tribunal put to the applicant that this information did not indicate that the applicant had any medical condition at all, let alone anxiety and depression, in 2017 when he stopped studying. In response the applicant indicated that in 2017 he did not seek any medical help because he did not like talking about his feelings to other people because he had anxiety.

43. The Tribunal put to the applicant that WSU had cancelled the applicant’s course enrolment in 2017 because he did not pay his course fees, and that the applicant had made a “request for fee reduction” to the Tribunal on the basis of financial hardship. The Tribunal put to the applicant that as part of having a student visa he would need to be able to pay his course fees and support himself during his studies. The Tribunal put to the applicant that the information before the Tribunal may lead the Tribunal to find that the applicant may not have the financial ability to pay his course fees and support himself during his studies. In response he said he was compensated by Caltex in 2018, and that his father is now back to work and his mother is no longer sick. He claimed his father could pay for his fees. He said he got five thousand dollars ($5000) in compensation. The Tribunal put to the applicant that international student fees are costly, more than $5000. He said he did not want to ask his parents to pay his fees while his mother was going through her medical treatment. 

44. In respect of the above, the Tribunal makes the following findings.

45. The Tribunal accepts that when the applicant came to Australia to study in 2014 he encountered problems when he lived with his aunt (who was his legal guardian) and had to find alternative accommodation. However the Tribunal does not accept that this issue had any impact at all on the applicant ceasing enrolment in his studies in October 2017 because the cessation of his course enrolment happened some three years after he experienced the issue with his aunt in 2014. Accordingly the Tribunal gives this issue no weight in the applicant’s favour.

46. The Tribunal accepts that the applicant was involved in a wage fraud matter with Caltex. The Tribunal accepts that this issue may have caused some distress to the applicant. Accordingly the Tribunal gives this issue some weight in the applicant’s favour.

47. The Tribunal accepts that the applicant felt he experienced some bullying at university, however the Tribunal gives this low weight because there is no corroborative evidence indicating that he ceased his course enrolment due to bullying at university.

48. The Tribunal accepts that the applicant was experiencing some stress in August 2018 but the Tribunal does not accept that the applicant experienced any medical condition around the time he ceased to be enrolled in October 2017, because there is no such diagnosis from a medical practitioner. Accordingly, the Tribunal gives the applicant low weight in his favour in respect to this information.

49. The Tribunal accepts that the applicant’s mother became ill in 2018 but the applicant’s mother’s medical problems in 2018 had no causal impact on the applicant’s cessation of his enrolment in 2017. Accordingly, the Tribunal gives the applicant no weight in his favour in respect to this information.

50. The Tribunal finds that a significant contributing factor to the applicant’s cessation of enrolment in a registered course of study in October 2017 was that he did not pay all of his course fees. The information before the Tribunal, as indicated above, leads the Tribunal to find that the applicant may not have the financial ability to pay his course fees and support himself during his studies if he were to be granted a student visa. Accordingly, the Tribunal gives high weight against the applicant in respect to this information.

51. The Tribunal finds that the applicant failed to take reasonable steps to manage his compliance with the conditions of his student visa, in particular condition 8202, where he failed to pay all of his course fees and he failed to notify the Department of his circumstances from the time he ceased enrolment in October 2017 to the time he received the NOICC on 31 July 2018 – a period of approximately nine months. Accordingly, the Tribunal gives high weight against the applicant in respect to this information.

1. In all the circumstances as detailed above, the Tribunal does not accept that the applicant took reasonable steps to maintain compliance with his obligation to remain enrolled in a registered course of study under visa condition 8202. Accordingly, the Tribunal places high weight on this information against the applicant.

2. In consideration of the above circumstances, the Tribunal finds that these circumstances are not exceptional circumstances. Accordingly, the Tribunal places high weight on this information against the applicant.

   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

3. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

   The extent of compliance with visa conditions

4. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

5. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

6. In response he indicated that it would be a shock to his parents because they have paid many thousands of dollars in fees.

7. The Tribunal accepts that it would be a shock to his parents if his visa was cancelled and gives this some weight.

   Past and present behaviour of the applicant towards the Department

8. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s.140

9. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

   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

10. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

11. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

12. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

13. The Tribunal places low weight on this information in the applicant’s favour.

    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

14. The Tribunal asked the applicant if he feared anything in returning to India. In response he said he had no fear for his life, and no fears if he went back to India.

15. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

16. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

17. The applicant indicated he did contact his provider (WSU) but he did not speak to the Department when he ceased his enrolment.

18. The Tribunal referred to the email dated 21 December 2017 the applicant provided to the Tribunal. The email states:

    Thanks for sending this student to us. However, based on the student onshore academic records, the student does not meet our entry requirement as his visa was over 2 years.

    Secondly, with more than 2, 5 years studying Bachelor of Engineering course, the student manage passed only 2 units. Lastly no study evidence provide for second half year of 2017. (emphasis by Tribunal)

    Therefore, based on these information provided, we do regret not take further processing for this application.  

19. In response the applicant said the information in the email was true.

20. The Tribunal put to the applicant that, beside any inability he might have to pay for his course fees, given he had only managed to pass 2 units over 2.5 years, he has demonstrated a lack of ability to successfully study and pass the course, and he said that he had said he lost interest in the course.

21. The Tribunal asked the applicant what other courses he had applied for. He responded that he wanted to study IT, but he had applied for an IT course at the Victorian Institute of Technology.

22. The applicant then said his parents and his agent failed to explain to him the rules of the student visa. The Tribunal put to the applicant that, as the visa holder it was his responsibility to understand and abide by the conditions of the visa. In response he said he was a minor and his agent failed to explain the rules. He maintained that he was not aware of the rules and conditions of the visa in 2017. The applicant indicated he was hoping to enrol in a course in 2018 but he could not. He indicated he was hoping to extend his visa and apply to study a different course.

23. In respect of the above, the Tribunal makes the following findings.

24. The Tribunal accepts the information about the student’s academic performance as detailed in the emailed dated 21 December 2017, and finds that the student has demonstrated poor academic performance.  Accordingly, the Tribunal gives high weight against the applicant in respect to this information.

25. The Tribunal does not give any weight to the applicant’s submission that his parents and his agent failed to explain to him the rules of the student visa. The Tribunal finds that as the visa holder it was the applicant’s responsibility to understand and abide by the conditions of the visa. The Tribunal accepts that the applicant was a minor when he was initially granted the student visa. However, the Tribunal finds that when the applicant breached condition 8202 in 2017 a) he was no longer a minor, b) he was an adult and c) he had been in Australia for a number of years on a student visa. Accordingly, the Tribunal does not give any weight to the applicant’s submission in this respect.

    Conclusion

26. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.

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

    DECISION

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

    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.