Dhuria (Migration)

[2019] AATA 1981

Dhuria (Migration) [2019] AATA 1981 (28 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avi Dhuria

CASE NUMBER:  1724244

HOME AFFAIRS REFERENCE(S):           BCC2017/2619963

MEMBER:Nicola Findson

DATE:28 April 2019

PLACE OF DECISION:  Perth

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

Statement made on 28 April 2019 at 5:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Diploma of Management – not enrolled in registered course for nine months – worked full-time – concerns about genuineness of relationship with wife – entered into marriage in attempt to remain in Australia – credibility issues – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198
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 29 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 delegate cancelled the visa on the basis that Departmental records indicated that the applicant had not been enrolled in a registered course of study since 9 January 2017.  The delegate went on to consider that the factors in favour of cancellation outweighed those against and cancelled the visa. 

3. The applicant appeared before the Tribunal on 29 November 2018, to give evidence and present arguments. 

4. The applicant was represented in relation to the review by his registered migration agent, although the migration agent did not attend the hearing.

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. The delegate’s notification of cancellation, a copy of which was provided to the Tribunal by the applicant for the purposes of the review, records that on 1 August 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa.  In summary, that NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s student visa and also indicated that it appeared from the Provider Registration and International Student Management System (PRISMS) that the applicant had not been enrolled in a registered course of study since 9 January 2017. 

10. The applicant responded to the NOICC on 7 August 2017.  He did not dispute that the grounds for cancellation existed and the following is a summary of the information he provided:

    ·His purpose in coming Australia was to get a good education. 

    ·He completed an English course and Diploma of Management and had enrolled to study a commercial cookery course. 

    ·He started working for the Zambrero franchise in Rockingham in July 2016. After a few months he was asked to work full time, with the promise of a sponsored position.  He stopped studying and commenced working full time for the business in January 2017. However, the visa he had been promised did not eventuate; he was not paid properly for his work; and in April 2017, without warning, the owners shut their business and walked away from it.  Despite many attempts, he has not been able to contact the owners since that time.

    ·About 10 days after he lost his job, he tried to enrol at the Australian School of Management, but they had ceased to operate.

    ·He would like to complete the commercial cookery course he started, to make his future good.

11. At his hearing the applicant confirmed to the Tribunal that he did not hold enrolment in a registered course for a period after 9 January 2017, for the reasons he had outlined to the delegate.

12. On the evidence before it, the Tribunal finds that the applicant ceased to be enrolled in a registered course from 9 January 2017.  Accordingly, the applicant has not complied with condition 8202(2)(a) of his visa.

    Consideration of the discretion to cancel the visa

13. At his hearing, the applicant told the Tribunal that he came to Australia in September 2013, after he had completed a Bachelor of Commerce degree in India.  He said he completed a 3 month English course over 8 to 12 months at Edith Cowan University and then enrolled at that same institution to do a Masters Degree.  He said he attended classes, 3 days a week, for about 6 months, but was failing assignments and exams, so sought a letter of release to study an alternative course elsewhere.  He said he commenced studying Commercial Cookery at a different institution, but came to realise – after about 3 months – that he was not complying with his visa conditions by not studying in the higher education sector.  He said he then, subsequently, enrolled in a package of courses at the Cambridge College, which included a Diploma in Management, Certificates in Commercial Cookery and a Degree in Management.  He said he completed his Diploma in 6 months and then commenced his Certificate 3 in Commercial Cookery.  He was granted a further student visa, in September 2016, to enable him to continue studying. 

14. As to the circumstances giving rise to the breach of his visa condition, the applicant indicated to the Tribunal that he had been working at Zambrero to support himself while he studied three shifts a week.  He indicated that after several months the owners of the business approached him and offered him a full time job. The offer included making an application to sponsor him to work in the position of Manager.  He said that he was convinced by the owners, whom he trusted, that taking up the offer would be a good thing to do.  He said he

    liked the idea of having ‘full power’ at the restaurant; he enjoyed the work; and thought that it might be his career. He said he spoke to a lawyer in Joondalup, organised by the owners, in about January or February 2017 and trusted that the process of obtaining the visa would progress.

15. The applicant indicated to the Tribunal that problems first started about 4 months after he started working full time, when the owners stopped paying him a wage.  It was explained to him that his visa expenses would be taken care of (in lieu of the full wage) and he would be given a little bit of money to support himself each fortnight.  He said he was paid between $200 to $400 each fortnight from the cash register of the business. The applicant said that not long after this, the owners locked up their store and their house and disappeared.   A copy of an email dated 12 April 2017 and purporting to be from the Business Operations Manager of Zambrero, supports the applicant’s evidence that the franchise partners of Zambrero Rockingham ceased trading and abandoned their restaurant in April 2017.

16. The applicant conceded to the Tribunal that his greed had been his downfall.  He told the Tribunal that he would like to complete his cookery course.  He said it would only take six months for him to complete his Certificate IV cookery qualification. He said before problems arose for him, he was a good student and obeyed the rules.  He said that if he returned to India with a higher education qualification, he would have a better chance of getting work there.

17. The Tribunal indicated to the applicant that it was concerned that there had been no contact with the Department to explain his situation.  The applicant told the Tribunal that not contacting the Department had been a mistake.

18. At the hearing, the applicant produced a copy of a marriage certificate which indicated that he married an Australian woman – Ms Elle McSwain - on 15 October 2018.  When the Tribunal explored with the applicant the timing of his marriage, when his visa situation was so uncertain, the applicant conceded that he had married to remain in Australia and maintained that by doing so he had not done anything wrong.  He said he had met his wife while they were both working at Zambrero and that they had been in a relationship since the beginning of 2018.   

19. The Tribunal asked the applicant if he or others would suffer hardship if the visa were cancelled.  The applicant indicated that he did not want his visa to be cancelled as he wanted to finish his studies, particularly his commercial cookery studies, and to have his work rights reinstated.  He said he has a family of his own now and it will be difficult for his wife if he has to leave Australia.  He said that she is unable to work because her 6 year old son from a previous relationship is unwell.   He also indicated that he owes money to a lot of people, including his parents and partner, who have supported him while he has been in Australia, and it will be difficult for him to repay that money if the visa remains cancelled.

20. When asked what impact any visa cancellation would have on his new wife, the applicant told the Tribunal that every time they speak about the possibility of his visa being cancelled, she chooses to believe he will have his visa reinstated.  He said that she would probably travel to India to spend time with him if he leaves Australia, but would find it difficult to spend long periods of time there because of her son and him requiring access to good medical care. 

21. The Tribunal asked the applicant why his wife had not attended the hearing to, at the very least, support him.  By way of response the applicant said that he had come alone as he was not aware his wife needed to be at the hearing.

22. The Tribunal also asked the applicant to comment, pursuant to the s359AA procedure, on an Autism Spectrum Disorder Diagnostic Assessment Report dated 2 November 2018 in relation to his wife’s son which he had provided to the Tribunal during the review process.  The Tribunal discussed with the applicant the detailed background set out in the report which makes mention of the biological father (with whom the son has contact with each month) as well as Ms McSwain’s previous partner, with whom the report indicates she separated from about 3 months before the assessment was carried out.  The Tribunal also noted to the applicant that a Government of Western Australia Child and Adolescent Health Service Report dated 12 September 2018, provided to the Tribunal on the day of his hearing, also refers to the son’s biological father as well as Ms McSwain’s previous partner, with whom it states she entered a relationship when her son was aged 2 and which endured for 4 years. The Tribunal suggested to the applicant that the fact that these reports indicate that his wife was still in a relationship with another man until about June 2018, and makes absolutely no mention of him being a significant person in the son’s life, causes it great concern.  It told the applicant that this information may lead it to doubt the reliability of his evidence about the history and nature of his relationship with Ms McSwain and indeed his credibility generally.  By way of response to this information, the applicant indicated that the Autism assessment occurred 8 to 12 months before they received the final report and that at the time his wife had separated from her previous partner.  The Tribunal, however, does not accept the applicant’s evidence in this regard given that, as discussed with him, the relevant report states that the assessment was carried out on 21 September 2018 – about 6 weeks before the date of the report.  The Tribunal has significant concerns, on the basis of this evidence, that the applicant has entered into marriage with Ms McSwain in an attempt to remain in Australia and therefore the genuineness of their relationship, and about his credibility generally.

23. Following his hearing, the Tribunal received a statutory declaration from Ms McSwain, sworn on 5 December 2018, in support of the applicant’s review application.  In her statutory declaration Ms McSwain states that she has not been in a relationship with her previous partner since December 2017 and she had entered into a relationship with the applicant in February 2018.  She states that her son continued to see her previous partner once a week after they separated up until the end of March or early April 2018.  She further states that the applicant supports her financially, mentally and has taken her son on as his own.   The Tribunal has had regard to this written evidence, however it does not overcome the Tribunal’s concerns noted above. 

24. 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   

25. It was the evidence of the applicant that his purpose in coming to and staying in Australia was to study in the higher education sector.  However, due to his poor English skills and his poor progress in his Masters degree, he sought a letter of release from Edith Cowan University and ultimately enrolled in a package of courses – a Diploma in Management, Certificates in Commercial Cookery and a Degree in Management – at a different education provider.

26. The Tribunal acknowledges the applicant’s evidence regarding his intended purpose of travel to Australia, and accepts that he may have travelled to Australia intending to study.  However, the Tribunal notes that on the information before it, since the applicant’s arrival in Australia in September 2013 and up until his student visa was cancelled on 29 September 2017, he has only managed to successfully complete a three month English course and a six month Diploma of Management course. 

27. The Tribunal has considered whether the applicant has a compelling need to remain in Australia in order to remain with his new wife (who is an Australian citizen) and her child from a previous relationship.  The Tribunal has considered Ms McSwain’s claim set out in her statutory declaration that the applicant supports her financially, mentally and has taken her son on as his own. The Tribunal has also considered the applicant’s claims that he supports Ms McSwain as she is unable to work because her young son is unwell, and whilst Ms McSwain would visit him in India if he is required to return there, this would not be for long periods because of her son and him requiring access to good medical care. On the basis of its significant concerns about the history and nature of the applicant’s relationship with Ms McSwain and his credibility, the Tribunal is not persuaded that there is a compelling need for the applicant to remain in Australia for these reasons.

28. The Tribunal has taken into consideration the applicant’s claims that completing his cookery qualifications would enable him to get a better job if he has to return to India.  

29. However, on the basis of the evidence before it, and coupled with its concerns about the genuineness of his claims, the Tribunal only gives minimal weight to the applicant’s claimed purpose for travelling to and remaining in Australia.

    The extent of compliance with visa conditions

30. The applicant admitted that he had not been enrolled in a registered course after 9 January 2017 up until his visa was cancelled on 29 September 2017, a period of some 9 months, which the Tribunal considers to be significant. 

31. The applicant stated, and the Tribunal accepts and affords some limited weight to the fact, that the applicant did not breach any other conditions on his student visa.

32. As noted below, the Tribunal does not find any of the reasons for his breach of the enrolment condition convincing.  The Tribunal considers this condition to be important, because one of the primary reasons for holding a student visa is to be enrolled and to study, and the applicant has admitted to doing neither for a considerable period of time.  When the Tribunal weighs his reasons, and its views on those reasons as set out below, against the long period of non-enrolment, the Tribunal has significant concerns about the period of breach which leads it to give this factor some weight towards the visa being cancelled.

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

33. The applicant indicated that he has borrowed a lot of money from different people, including his parents and new partner, and it would be difficult for him to repay that money if his visa remained cancelled.  He indicated that it would be difficult for him to return to India without a higher education sector qualification. The evidence before the Tribunal also indicates that the applicant’s new wife and her son would be impacted if the visa remains cancelled.  Specifically, Ms McSwain and her son would lose the financial and emotional support that it is claimed the applicant provides them.  Ms McSwain would also be unable to visit the applicant in India for long periods because of her son and him requiring access to good medical care.

34. The Tribunal has had regard to the claims of the applicant and accepts that the applicant would prefer to remain in Australia and that there may be some consequences and hardship to the applicant and his family if the visa remains cancelled.  However, in the Tribunal’s view, on the evidence before it, the applicant does have employment prospects in India on the basis of the study (including the tertiary study in India) he has completed.  Further, given its significant concerns about the circumstances of the applicant’s recent marriage and the genuineness of the applicant’s relationship with Ms McSwain and her son, the Tribunal is not persuaded that there would be any significant impact on them.

35. After careful consideration, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

    Circumstances in which the ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

36. The Tribunal has had regard to the applicant’s explanations and responses at hearing and the evidence provided. The Tribunal has found above that the applicant was not enrolled in a registered course for a period of 9 months from January 2017 until his visa was cancelled on 29 September 2017. The Tribunal has considered the applicant’s claims that after he lost his job at Zambrero in Rockingham he tried to enrol at the Australian School of Management, but it had ceased to operate.  The Tribunal has also considered the applicant’s claims in relation to the circumstances surrounding the breach being the lure of full time work and the promise of being sponsored to remain in Australia.  The Tribunal has considered his explanations for why he was not enrolled for this significant period and therefore in breach, and it does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. 

1. The Tribunal gives this factor very significant weight towards the visa being cancelled.

   Past and present conduct of the visa holder towards the Department

2. According to the delegate’s decision record, there is no evidence that the applicant has been uncooperative towards the Department.  The Tribunal gives this little weight towards the visa not being cancelled.

   Whether any international obligations would be breached as a result of the cancellation

3. The applicant indicated to the Tribunal that there was no reason he could not return to India and has not made any claims which would relate to this consideration.

4. The applicant’s new wife has a child, who is six years old.  As a signatory to the Convention on the Rights of the Child, Australia has an obligation to consider the applicant’s stepson.  Specifically, the Tribunal needs to consider how the best interests of the applicant’s step-child would be affected by a decision to cancel the applicant’s visa.  The Tribunal has set out above, that it has serious concerns about the genuineness of the applicant’s relationship with Ms McSwain.  In addition to the timing of their marriage, this is primarily because of information contained in recent medical reports prepared in respect of Ms McSwain’s son, which indicates that Ms McSwain was living with another man up until mid-2018 (and not the applicant, as claimed).  In addition, the reports do not refer at all to the applicant as being a significant person in the life of the child, or at all, whereas the reports do mention Ms McSwain’s son having contact on a regular basis with his biological father.  Because of the concerns about the reliability of the applicant’s evidence concerning the history and nature of his relationship with Ms McSwain, the Tribunal considers that the cancellation of the visa would not have a meaningful impact on the best interests of Ms McSwain’s child.  Accordingly, the Tribunal is not satisfied that Australia would be in breach of the Convention on the Rights of the Child if the visa is cancelled in this case.

5. The Tribunal gives no weight to this consideration.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

6. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia. The Tribunal gives these consequences some limited weight in favour of not cancelling the visa.

   Whether there are any persons in Australia whose visas would, or may, be cancelled under s.140

7. There are no persons in Australia who would be affected by consequential cancellations in this case.

8. The Tribunal has carefully considered the applicant’s evidence at hearing, and the limited documents he has provided, and finds that, considering the circumstances as a whole, the visa should be cancelled.

   DECISION

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

   Nicola Findson
   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.