CHOUDHARY (Migration)

[2019] AATA 3597

CHOUDHARY (Migration) [2019] AATA 3597 (27 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAJAT CHOUDHARY

CASE NUMBER:  1824951

HOME AFFAIRS REFERENCE(S):           BCC2018/1679373

MEMBER:Christine Kannis

DATE:27 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 27 July 2019 at 11:29am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –not enrolled in a registered course of study – breached condition 8202 – mental health problems – financial difficulties – no documentary evidence  to confirm financial difficulties – no medical certificate provided – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 189
Migration Regulations 1994 (Cth), Schedule 8

CASES
Liu v MIMIA [2003] FCA 1170.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 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. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 1 July 2019 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

7. Prior to the hearing the applicant provided additional documents which included but were not limited to a copy of his passport, correspondence from Edith Cowan University (ECU) a Medical Certificate, a Certificate III in Commercial Cookery dated 3 October 2017, medical reports, employment documentation and x-ray images.

   Did the applicant comply with Condition 8202?

8. On 18 June 2016 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

9. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since his enrolment in a Master of Management Information Systems was cancelled on 29 June 2017.

10. The documents provided prior to the hearing included a letter dated 3 October 2017 from Frontier Training and Technology advising that the applicant had completed a Certificate III in Commercial Cookery. The letter stated the course start date was 29 July 2017 and the course completion date was 3 October 2017.  A Certificate was also provided. Noting that this course was not recorded in the PRISMS the Tribunal asked the applicant whether he could provide a CoE for the course. He said he completed the course online while working in a kitchen and that he was not issued with a CoE. Based on the information available the Tribunal does not accept that completion of the Certificate III constituted enrolment in a registered course for the purposes of a student visa at any time.

11. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 29 June 2017. The Tribunal finds that he breached condition8202(2)(a) of his visa.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

13. 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’, as set out below.

14. On  9 August 2018 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

    Response to NOICC

15. On 11 August 2018 the applicant responded to the NOICC  and provided the following information:

    ·He arrived in Australia from India in 2016. He struggled to adjust to a new culture and new environment and as a result he experienced mental health problems. He was unable to sit his exams and he provided a doctor’s prescription to the university.

    ·He went to Sydney during his first summer vacation to meet with friends but his health issues were a problem and he returned to Perth and went to the university to obtain a deferment, that process taking a couple of days. While he was awaiting the deferment his brother, with whom he has a close relationship and who sponsored him to study higher education, lost his job and had a major accident. This affected his financial situation and he tried to help himself by looking for an option to make money easily and he began to gamble.

    ·After visiting the casino a few times he became addicted which made matters worse and he became depressed.

    ·After overseas travel and making some good friends he worked on and learnt some cookery skills. He completed a certificate in commercial cookery via fast track studies. India has a high demand for professional skilled people in this industry however in spite of this he was unable to stop gambling.

    ·Earlier in 2018 he travelled to India for two months to overcome his gambling addiction.

    ·He has discussed his problem with his family who are helping him overcome the situation. He owes money to a friend and to his brother. His brother is now well, back at his job and is able to financially support his studies.

    ·He would like to study cookery because he is interested in it and there is a lot of scope for it in his home country.

    Evidence at hearing

16. The applicant told the Tribunal he came to Australia in 2016 to study for his Master’s degree in Information Technology. He felt lonely and became depressed. This together with the language difficulties he experienced caused him to fail his units. He sought and was granted a deferral by ECU from 1 March 2017 until 29 June 2017. A Medical Certificate dated 18 February 2017 said:

    He states that he has stress, anxiety/depressed mood and homesickness for the last 6 months. He can’t concentrate his studies and he failed his exams. He is lonely and can’t sleep. He can’t cope well.

17. The Tribunal noted the Medical Certificate referred only to symptoms reported by the applicant. No diagnosis or treatment information was included in the Medical Certificate.

18. In response to the Tribunal asking the reason he ceased to be enrolled from 29 June 2017 the applicant said it was because he lost the financial support of his younger brother who was also his sponsor. His brother was in an accident and he lost his job for 1.5 years.

19. No documentary evidence regarding his brother’s financial circumstances was provided. A number of documents identified as Contracts of Employment were provided. The applicant said these documents showed his brother worked for the navy but did not work in the second half of 2017. The print in the documents was small and unclear. The Tribunal told the applicant it could not read the print in these documents and invited him to provide clearer copies following the hearing. No further copies were provided.

20. In relation his brother’s injuries caused by the accident in 2017, the applicant referred to Operation Theatre Notices, Discharge Summaries and x-ray images provided prior to the hearing. The Tribunal pointed out that these documents were all dated in 2018 and 2019. He said his brother broke his arm again in 2019.

21. The applicant told the Tribunal that his grandfather is a landlord in India however because of bad crops from the end of 2016 until 2018 he was not able to pay his course fees when his brother was unable to provide financial support.

22. The applicant told the Tribunal that because his brother was unable to provide financial assistance after 29 June 2017, he asked ECU if he could reduce his study load thereby reducing his fees. ECU advised him that because he was an international student he was required to enrol in four units and his study load could not be reduced. No documentary evidence to substantiate that this request was made or ECU’s response was provided.

23. Regarding the applicant’s claim that he was unable to maintain the required enrolment due to financial difficulties, the Tribunal notes that it is a requirement for the grant of a student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia. If a visa holder is experiencing financial difficulties it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.  

24. The Tribunal notes that the applicant presented no documentary evidence whatsoever to confirm his claim that his brother’s reduced financial capacity from 29 June 2017 affected his enrolment. In the Tribunal’s view, such evidence should be readily available, for example, in the form of bank statements or evidence from the applicant’s brother who, he claims, gave him the funds. In the absence of any documentary evidence, the Tribunal does not accept that the applicant experienced any financial difficulties arising from his brother’s accident that that prevented him from enrolling in a course from 29 June 2017.

25. The applicant told the Tribunal that in mid-2017 he developed a gambling addiction and he lost his enrolment fees when gambling. He used money earned from his paid employment and money borrowed from friends to gamble. He went to visit friends in Sydney for a couple of months at the end of 2017 and travelled to India for a month in early 2018.  He made these trips to help him stop gambling.

26. On his return to Australia he looked for part-time cookery work but he did not attempt to enrol in study in 2018 because of his addiction. He said he was mentally unstable and was back at the casino.

27. The applicant told the Tribunal he had made a couple of mistakes and he wanted another chance to study. He said he had not wavered in his intention to study Information Technology. The Tribunal referred him to his response to the NOICC in which he said he wanted to study Cookery. In response he said he was confused at that time because of his depression and his mental state.

28. The applicant said his brother is once again able to financially support his study in Australia. The Tribunal noted the applicant’s evidence was that his brother has broken his arm again in 2019 however it accepts that he has financial support. He said following cancellation of his visa he applied to the Department to have his study and work rights reinstated on three occasions however his requests were denied because of  the cash transactions which appear in his bank statements. The cash transactions relate to gambling money.

29. No medical evidence to substantiate the applicant’s claims that he had mental health issues from 29 June 2017 was provided. The Tribunal noted that the Certificate III and the applicants’ oral evidence indicates that he was engaging in study and work during the period 29 July 2017 to 3 October 2017.

30. When asked about the hardship that may result from cancellation of his visa the applicant said that if he returns to India without an international degree it will take him more time to establish himself in a job and he will waste a couple of years. He said there is not much scope for further study in India. He said he is in his early 30s and he wants a chance to complete his study after making mistakes.

31. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

32. The applicant told the Tribunal his purpose in coming to Australia was to study Information Technology. At the time the NOICC was issued the applicant had not been enrolled in a registered course for 13 months. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. 

33. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said there were none apart from the fact that he wants to complete his study and be an asset to himself and to his family. 

34. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

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

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

36. The Tribunal accepts that the cancellation of the applicant’s visa may cause him hardship in finding suitable employment in India however it is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

37. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. He said the reason for failing to maintain enrolment in 2017 was because his brother was unable to financially support him. He said his brother did not work for 1.5 years. No documentary evidence was provided to substantiate the applicant’s claim that his brother’s accident and injury resulted in financial difficulties which prevented him from enrolling in a course from 29 June 2017.

38. The Tribunal noted the applicant’s evidence was that he commenced gambling in mid-2017 and he developed a gambling addiction. No evidence of an addiction was provided however the Tribunal accepts that the applicant engaged in gambling from mid-2017. In the Tribunal’s view this is likely to have significantly contributed towards his failure to maintain enrolment rather than the claimed financial difficulties arising from his brother’s accident. The applicant’s evidence was that the money he used to gamble included money provided for payment of his enrolment fees.

39. The Tribunal considered whether the applicant’s gambling was a circumstance beyond his control. As noted, no evidence of an addiction was provided. The applicant’s evidence was that he travelled to Sydney and to India to help him stop gambling. He did not seek professional assistance and he was able to engage in part-time employment.

40. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

41. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

42. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

    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

43. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh 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

44. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation.

    Any other relevant matters

45. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

46. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8202 of his visa.  The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking the study for which is visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

47. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.