Hari (Migration)

[2020] AATA 5027

Hari (Migration) [2020] AATA 5027 (9 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kushwinder Hari

CASE NUMBER:  1920429

HOME AFFAIRS REFERENCE(S):          BCC2019/1472973

MEMBER:Donna Petrovich

DATE:9 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 09 October 2020 at 4:21pm

CATCHWORDS
MIGRATION – cancellation – Subclass 500 (Student) visa – subclass 573 Student (Temporary) (Class TU) Higher Education Sector – not enrolled in registered course – return to home country to resolve health issues – subsequent cancellation of visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140
Migration Regulations 1994, condition 8202 of Schedule 8, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study for a period of 17 months, from 9 February 2018. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 16 September 2019 to give evidence and present arguments.  The applicant was not represented in relation to the review by a Migration Agent.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi 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.

   Background

7. The applicant is a young Indian man who arrived in Australia on 27 January 2014 and states that he came to Australia for the purpose of study. He submits that he was enrolled in a registered course of study, namely English Language Intensive Courses for Overseas Students. The Provider Registration and International Study Management system (PRISMS) records provided to the Tribunal by the applicant, with a copy of the applicant’s Decision Record shows the applicant was not enrolled from 9 February 2018 and remained so for 17months.

8. The applicant told the Tribunal that he experienced illness, with symptoms which he was concerned may have been bowel cancer.  He returned to India for treatment and upon his return found that his enrolment had been cancelled. 

9. A Notice of Intention to Consider Cancellation (NOICC) was issued on 30 May 2019 and sent to the applicant advising that he was in breach of a condition of his visa.  The applicant did not respond, and when asked why, he told the Tribunal that he was not checking his emails.

10. The delegate cancelled the applicant’s visa on 17 July 2019 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 9 February 2018 to 17 July 2019.

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

    Did the applicant comply with Condition 8202?

12. 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).

13. The Tribunal notes that enrolment in a registered course of study was at all times, a condition of the applicant’s subclass 573 Student (Temporary) (Class TU) Higher Education Sector visa. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

14. The applicant did not respond to the NOICC, and the applicant did not dispute the grounds for cancellation.  He acknowledged at the hearing that he was notified by the Department but did not respond as he was not checking his emails at that time.

15. Therefore, on the evidence before the Tribunal, the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202.

    Consideration of discretion to cancel the visa

16. Prior to the hearing the applicant provided a submission in response to the invitation to provide information dated 6 August 2019. In addition, the applicant provided the Tribunal with additional information in relation to his health at the hearing on 16 September 2019.  The Tribunal has read and considered the applicant’s submissions for the purposes of making this decision.

17. 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’.

    Applicant’s purpose of travelling and staying in Australia   

18. During the course of the hearing the applicant confirmed that his intended purpose in travelling and staying Australia was to study.  In addition, he stated he wished to continue his studies if given the opportunity.

19. However, the applicant’s enrolment in a registered course of study was cancelled on 9 February 2018 and he has not been enrolled in a registered course of study since that date.  Since being granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) on 9 January 2014 the applicant has not completed any course of study and has remained in Australia in breach of the conditions of his visa.

20. Accordingly, the Tribunal gives little weight to the applicant’s statement that the purpose of him travelling and staying in Australia was to study.

    Compliance with visa conditions

21. The applicant has not been enrolled in a registered course since 9 February 2018 and remained unenrolled for a period of 17 months. The Tribunal considers this a significant breach of his visa conditions.

22. Rather, the applicant has remained in Australia without having complied with the conditions of his visa.  As such, the applicant’s non-compliance is significant and as such the Tribunal gives no weight in favour of the applicant in considering this factor.

    Degree of Hardship that may be caused to the Applicant

23. The applicant did not raise any specific matters of hardship in the hearing.  The applicant told the Tribunal that his mother and father and two sisters resided in India and that he was particularly close to his mother, to whom he speaks twice per week. His mother is a housekeeper and father is a shopkeeper.

24. The Tribunal received oral evidence from the applicant that he arrived in Australia on 27 January 2014. He told the Tribunal he was not enrolled at the time his visa was cancelled, and the applicant’s visa was cancelled on the basis that he was not enrolled in a registered course for a period of 17 months.  The applicant did not respond to the NOICC, and told Tribunal that he would like to complete his studies and then return to India and start his own business.

25. The applicant provided no evidence that the he was enrolled in a course of study at the time that he went overseas for an operation for a period of three months, when he came back on 10 of September 2018 his enrolment was cancelled.  The applicant has remained in Australia since 2014 during which time he has displayed a lack of commitment and progress in his studies.  The Tribunal accepts that the applicant was concerned for his health during a period of time when he returned to India, and although diagnosed with haemorroids, he made submissions to the Tribunal of his continued concern for bowel cancer, in spite of having had a colonoscopy which disproved that this was the case. In considering this the applicant told the Tribunal that he did not notify his College or the Department in relation to his health issue or request a deferment from his education provider.  The Tribunal places no weight in favour of the applicant in this regard.

26. The applicant told the Tribunal that he would start his own business on his return to India but did not detail what type of business or how he was going to achieve this.  The Tribunal in considering this evidence does not accept that this is the applicant’s intent and places no weight in favour of the applicant in this regard.

27. The Tribunal accepts that some hardship will be caused to the applicant if his visa is cancelled including not being able to achieve qualifications in the area of hospitality and being required to depart Australia.  The Tribunal notes he would be eligible to apply for a bridging visa which may allow him to remain in Australia so that he can finalise any outstanding matters.

28. He told the Tribunal he was suffering financial hardship and so had not been able to seek a further enrolment, and that his parents would be affected if his visa was cancelled. The Tribunal accepts that the applicant is currently suffering some hardship and that whilst his parents will be disappointed this would not be any different to other parents in the same situation and therefore the Tribunal places no weight in this regard.

29. The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition, he will be subject to Public Interest Criterion 4013 which means that he may not be granted temporary visa for three years from the date of cancellation.

30. While the Tribunal accepts that if the applicant’s visa is cancelled he will suffer some hardship by having to return to India, it has not accepted the applicant’s evidence about the reason for him wanting to enrol in further studies and as such has given little weight to the hardship the applicant says he will suffer in making its decision.

    The circumstances in which grounds for cancellation arose – Applicants Medical condition

31. In 2018, the applicant’s doctor suggested that he was suffering from constipation and piles and gave him medicine which the applicant told the Tribunal did not work.  He was referred to a doctor in Burwood where that doctor suggested he have a colonoscopy. 

32. The applicant then googled his symptoms and became convinced that he was symptomatic and suffering from of bowel cancel. The applicant told the Tribunal that he flew to India the very next day and told his family he had bowel cancer, which caused them significant distress. He said that the doctor in India checked him properly, and gave him a diagnosis that it was not bowel cancer.  He took the medicine provided for one month and the bleeding stopped, he then went to another doctor who prescribed operation for haemorrhoids.  He continues to have trouble with haemorroids and continues to take medication, but still suffers from haemorrhoids. 

33. The Tribunal asked the applicant if he considered staying in India until he recovered, and the applicant told the Tribunal that when he was ill he was in India but thought he should come back to Australia to study.

34. After he came home, he experienced pain in his private parts.  He went to the doctor who said he should be checked for HIV, which came back clear, and he was checked for other STIs.  The doctor told him to drink plenty of water.  The old problem of his haemorroids flared up again, because he travelled in a car after the doctor had warned him about sitting for prolonged period. He told the Tribunal that he couldn’t concentrate on his study at this time although he was not enrolled.

35. The applicant told the Tribunal that he had employed an immigration agent in September 2018, and that the agent said he would get him a deferral and that the college would accept his medical certificates and he would work toward another COE.  The applicant then explained when questioned that this did not occur and the agent did not get the deferral, as the applicant did not employ the agent. The Tribunal found that the applicant seemed fixated on undiagnosed medical conditions which was the reason that he allowed his enrolment to lapse. Whilst sympathetic to the applicant’s condition, the Tribunal does not accept that his circumstances should have prevented him from continuing with his studies.  The Tribunal in considering the circumstances gives no weight in favour of the applicant in considering discretion not to cancel. 

36. When asked how he would be affected if the delegate’s decision was upheld, he told the Tribunal it would destroy him.  His qualifications would allow him to pursue his plan, and he could gain experience at home.  He would have liked to gain experience here.

37. The applicant’s told the Tribunal that his agent told him he could apply for a temporary visa, as he was working in Australia in hospitality. He washed dishes, did deliveries, and worked there for four months until the business was sold. The applicant said his life was ruined when his employer sold his business. At the time he was on a Student visa and the time was brief, he was able to seek and gain extensions in 2017. The Tribunal has considered this evidence and gives no weight in favour.

    Past and Present Behaviour of the applicant

38. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140

39. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (“the Act”). According to the Departments records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

40. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

41. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

42. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

43. 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).

44. Considering the circumstances, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Donna Petrovich
    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.