Dahiya (Migration)

[2019] AATA 5998

Dahiya (Migration) [2019] AATA 5998 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Neeraj Dahiya

CASE NUMBER:  1723266

HOME AFFAIRS REFERENCE(S):          BCC2017/2709706

MEMBER:Elizabeth Tueno

DATE:19 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 19 September 2019 at 8:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Information Technology – not enrolled in registered course – failed multiple subjects – ceased studying diploma – enrolment cancelled – illness in family – study difficulties – lack of evidence – 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 22 September 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 applicant is a 25 year old Indian national.  On 9 October 2014 he was granted a student visa to study a Diploma of Information Technology from 19 January 2015 to 25 November 2016 and a Bachelor of Information Technology from 13 February 2017 to 31 December 2018. 

3. 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 20 January 2017 until 9 September 2017.  The delegate was not satisfied that the grounds for not cancelling the visa outweighed the grounds for 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.

4. The applicant appeared before the Tribunal on 17 September 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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.

   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. Other than the oral evidence he gave at the hearing, the applicant provided no other material to the Tribunal.  However, the Tribunal has reviewed the Department’s file and found a letter dated 5 September 2017 that the applicant sent to the Department.  The Tribunal has taken the contents of the Department’s file, including the applicant’s letter, into consideration as well as the oral evidence given by the applicant at the hearing. 

10. At the hearing, the applicant accepted that he had breached Condition 8202.  In his letter, he explained that he arrived in Australia in November 2014 and commenced his studies at Academies Australasia Institute in January 2015.  He completed two “sessions” of the enrolled Diploma course before transferring to the same course at Australis Institute of Technology and Education.

11. He stated that he was not receiving satisfactory results in this course.  At the hearing, he explained that he had not been passing his subjects because his mother in India was unwell and he was receiving daily phone calls about this.  He said that he developed depression and hypertension, although the Tribunal notes there was no corroborating evidence about either his own illness or that of his mother’s.  He said in his evidence that he stopped studying for the Diploma with approximately 2 months to go.  As a result of not completing the Diploma, the University of Canberra did not allow him to commence the Bachelor course, and therefore his enrolment was cancelled. 

12. The applicant confirmed that he is not presently enrolled in any course.  He said that his agent enrolled him in a Diploma of Business at Hanney Accreditation, however when he attended on the first day he was thrown out and threatened by the institute that they would call the police on him.  A confirmation of enrolment was on the Department file for this course that commenced on 25 September 2017.

13. 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

14. 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

15. The applicant stated at the hearing that his reason for coming to Australia was to “fulfil his drive” to study.  He previously had studied at Kurukshtra University India before coming to Australia to study.  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

16. As noted above, the applicant said that after changing from a Diploma of Information Technology to a Diploma of Business, he was not passing subjects.  This was due to his mother being unwell, which in turn caused him to develop depression and hypertension.  The applicant said that because he had not completed the Diploma, he was not allowed to commence the Bachelor course at the University of Canberra. 

17. In his letter to the Department, the applicant had stated:

    I have stayed enrolled and studied at AITE till the date mentioned on my CoE, though my results were not satisfactory, so I went to the UoC [University of Canberra] in order to get my Bachelor CoE revised, as I knew I might have to face delay in starting my Bachelor program.

    To my surprise, the University of Canberra informed me that my enrolment from Bachelor course has been cancelled by the University of Canberra, for which I never received any formal or informal notification till the date.  I tried to request them to reinstate the CoE, but they informed me that it cannot be reinstated and also that I may not receive a new offer from UoC, as they cancelled my earlier enrolment.

18. However, at the hearing, the applicant denied writing this letter.  He said that he had been received an email from the Department asking his name and address.  He also said that he had been approached by an agent who advised him to transfer $750 to the agent and that the visa would not be cancelled.  The applicant said that the agent told him to get a Confirmation of Enrolment (CoE) and a diploma as soon as possible and if he did, then his visa would not be cancelled.

19. He went onto state that this agent wrote emails from the applicant’s own email address and that it was the agent who had written the letter to the Department.  He said that he had paid the agent $2000 to $3000 to assist him.

20. The applicant denied that he was ever contacted by the University of Canberra notifying him that his enrolment had been cancelled.  He said the first he heard about the cancellation was in September 2017.  He said that he never wrote to the University or contacted them about his enrolment being cancelled.

21. From a review of the Department’s file, the Tribunal has found an email dated 17 August 2017 sent by a visa cancellation officer with the Department of Immigration and Border Protection.  The email requested that he advise his address, phone number and email address as he had not updated his contact details and there was an important formal notification that needed to be sent to him about his visa.  On the same day, the applicant responded with the requested information. 

22. The Tribunal notes that on 30 August 2017, the Department sent the applicant notice of intention to consider cancellation of his student visa as it appeared he had not been enrolled in a registered course since 20 January 2017.

23. At the hearing, the applicant said that the real culprit was the agent.  The Tribunal finds it concerning that the applicant continues to blame others and accepts no responsibility for his failure to comply with Condition 8202.  His evidence at the hearing was that even after finding out about the cancelation, he did not make any enquiries about it with the University.    

24. Other than the applicant oral evidence, the Tribunal finds no evidence of the applicant engaging the services of an agent to assist him around the time of the delegate’s decision.  The Tribunal has difficulty accepting the applicant’s evidence about this agent, in particular that the agent wrote the letter pretending to be the applicant and used the applicant’s own email address to send emails.  This is because the Department’s email dated 17 August 2017 contradicts the applicant’s evidence about receiving an email from an agent, who advised him to pay $750 to the agent and that his visa would not be cancelled.  It is this email that contains a request his updated contact details.  Even if the Tribunal accepted, which it does not, that the applicant was confused about who contacted him it does not accept that a letter that contained his own name addressing his circumstances was not prepared by the applicant himself.  The Tribunal notes that there is nothing on the Department’s file to indicate that the applicant had engaged the services of a migration agent to act on his behalf.  The applicant presented none of the correspondence purportedly received by this agent. 

25. As to the issue about the applicant suffering from depression and hypertension, at the hearing the applicant admitted that he had never been to see a doctor (in fact had not been to see a doctor in the last 5 years).  He agreed this was a self-diagnosis based on his own belief that he suffered from these conditions.  There is no corroborating evidence to support that he was suffering from either depression or hypertension.  Therefore, the Tribunal is not prepared to accept medical evidence where it comes from the applicant’s own self-diagnosis. 

26. As to the applicant’s assertions that Hanney Accreditation threatened to call the police on him and did not allow him to study, despite having enrolled in the course, the Tribunal also have difficulty accepting this without some corroborating piece of evidence given the other findings the Tribunal has made about the applicant’s evidence. 

27. In light of the above, the Tribunal gives weight to the circumstances in which the cancellation arose and finds it in favour of cancelling the visa.

    The extent of compliance with visa conditions

28. 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.  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)

29. When asked if he would suffer any hardship might be caused if his visa remained cancelled, the applicant said if he had graduated from the Bachelor of Information Technology, he could go back to India and find a job.  He said that it was too late for him to enrol at University in India in the same course because it is a university requirement that he not be older than 21 years of age.  The Tribunal notes there was no supporting evidence to this statement made by the applicant about the age requirement.  It is an unusual submission to make and without further evidence about this, the Tribunal does not accept that Universities in India have an age cut off for enrolment.

30. The applicant said that he wants to continue his studies and graduate in Australia.  He said that if he returns home without completing his studies that it would be shameful for him. 

31. The Tribunal accepts that the applicant will suffer some hardship in that he will be shamed to return home without completing his studies.  It gives a little weight in favour against cancelling the visa. 

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

33. 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

34. 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

35. The applicant gave no evidence about any legal consequences for him, nor did he make any submissions about this.

36. 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. 

37. 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.

38. The Tribunal gives no weight in favour of not cancelling the visa under this consideration.

    Australia’s international obligations

39. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations.  There is no evidence that the accused has any children in Australia (or elsewhere).  Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa. 

    Any other relevant matters

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

41. Considering the circumstances as a whole, the Tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa.  Accordingly, the Tribunal finds that the visa should be cancelled.

    DECISION

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