Harnek Singh (Migration)

[2019] AATA 3629

Harnek Singh (Migration) [2019] AATA 3629 (20 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Harnek Singh

CASE NUMBER:  1910308

HOME AFFAIRS REFERENCE(S):          BCC2019/278804

MEMBER:D. Triaca

DATE:20 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2019 at 9:44am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – course enrolment – COE cancelled – medical condition – no deferment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
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 11 April 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 had not been enrolled in a registered course of study between 26 March 2018 and 3 April 2019. The applicant obtained a further confirmation of enrolment (CoE) on 3 April 2019, however this CoE was cancelled on 10 April 2019. 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 9 August 2019 to give evidence and present arguments.   

4. The applicant was represented in relation to the review by his registered migration agent who made submissions on behalf of the applicant.

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 finding was based on a report from the Provider Registration and International Student Management System (PRISMS) that stated the applicant had not been enrolled in a registered course of full time study between 26 March 2018 and 3 April 2019. On 3 April 2019 the applicant obtained a further CoE from Stotts College in a Bachelor of Business. On 10 April 2019 that CoE was cancelled. The delegate identified the relevant period from 26 March 2018 to 10 April 2019 as being the period in which the applicant was not enrolled in a registered course of study. This amounted to approximately 11 months during which the applicant was in continuous breach of the conditions of his visa.

10. In his oral evidence before the Tribunal, the applicant stated that he was not enrolled for a period of approximately 11 months between 26 March 2018 and 3 April 2019. He confirmed that he had obtained a further enrolment in a Bachelor of Business at Stotts College on 3 April 2019 but that CoE was cancelled on 10 April 2019.

11. Accordingly, the Tribunal is satisfied that the applicant was not enrolled in a registered course of study for the period of 26 March 2018 to 3 April 2019 and so finds that the applicant was in continuous breach of condition 8202(2) of his visa for a period of approximately 11 months from 26 March 2018.

    Consideration of the discretion to cancel the visa

12. 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 by 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 Evidence.

13. A summary of the applicant’s evidence before the Tribunal is as follows:

    (a)      He arrived in Australia on 1 March 2014.

    (b)      His intention was to study Information Technology and he enrolled in IT courses.

    (c)He did not enjoy IT. He says that he found it very hard and he took time getting used to the Australian culture and he worked out that he was not suited to IT.

    (d)He changed his studies to Hospitality and commenced studying hospitality related courses at Front Cooking School studying at the Brunswick campus. He successfully completed a Certificate III and IV in commercial cookery. At the hearing he provided the Tribunal with a copy of his certificates from those courses.

    (e)He says that he also completed a Diploma of Hospitality however he did not was not able to provide a copy of the relevant documentation.

    (f)        He completed his cooking studies at the end of 2017.

    (g)He says that in about 2016 he developed a thyroid condition. He provided the Tribunal with a number of documents that appear to be the results of tests he has undertaken in relation to his thyroid condition.

    (h)       He says that he was prescribed medication for the thyroid condition.

    (i)He says that in about 2018, he became concerned that there was no cure for his condition and was worried about taking tablets every day. He says that he stopped taking his tablets and stopped attending his doctor around the start of 2018 and this resulted in him being tired and lethargic. This coincided with him ceasing all forms of study.

    (j)He says he also has a problem with poor blood circulation but did not suggest that this contributed him to his failure to study.

    (k)He says that he had intended to commence the Bachelor of Business degree in the first semester of 2018. However, he did not do so and he spent most of 2018 at home.

    (l)When he received the NOICC in March 2019 he took steps to re-enrol in a Bachelor of Business course at Stotts College. This confirmation of enrolment, obtained on 3 April 2019 was cancelled on 10 April 2019.

    (m)He hopes to remain in Australia and study and intends to commence studying the Bachelor of Business degree.

    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

14. The term “compelling need” is not defined in the PAM3. I take it to have its ordinary meaning, having regard to both the context and purpose of the PAM3 and s 116 of the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (“ Project Blue Sky ”) per McHugh, Gummow, Kirby and Hayne JJ at [69]. There is nothing in s 116 or the PAM3 , or elsewhere in the Act, to indicate that Parliament intended the phrase “compelling need” to be given anything other than its ordinary and natural meaning.

15. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs 143 FCR 204 (“Paduano”).  Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

16. “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

17. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said:

    “The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.”

18. “Need” was considered in Dimic v Djekovic (2014) NSWSC 1502, per Hallen J, at [111] as follows: "Need", of course, is also a relative concept: de Angelis v de Angelis [2003] VSC 432, per Dodds-Streeton J, at [45]. It is different from " want ". The latent difference between the words was stated by Lord Neuberger of Abbotsbury (now President of the Supreme Court of the United Kingdom), in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808, at [54]:

    "'Need' is a more flexible word than it might first appear. 'In need of' plainly means more than merely ' want ', but it falls far short of 'cannot survive without'."

19. ‘Need’ and ‘ want ’ are not interchangeable. The difference between ‘need ’ and ‘ want ’ is significant. See Boettcher v Driscoll (2014) SASC 86 at [41] per David J.

20. Having regard to these authorities, I take the phrase compelling need to have the ordinary meaning of the words, compelling, demanding attention or demanding interest or being forceful,  and need requiring something more than a mere want, but falling far short of requiring the applicant to demonstrate necessity in the sense that he cannot survive without it.

21. The Tribunal accepts that the applicant came to Australia with a purpose of studying and he did study in accordance this purpose for a period of approximately 3 years between 2014 and the end of 2017. He initially enrolled in IT courses but found them difficult. He changed his focus to study Hospitality courses and seems to have acquitted himself very well. He has now completed those courses and the Tribunal has read and had regard to the Certificates and Academic Transcripts from Front Cooking School provided by the Applicant at the hearing. I note that changing courses is not adverse to the applicant in circumstances in which Direction 69 contemplates a reasonable change in studies ought to be accommodated.

22. He has not studied since the end of 2017 and it appears that the purpose of his stay in Australia ceased has not been to study since that time. The applicant says that he would return to study if his visa is not cancelled and he hopes to commence the Bachelor of Business degree course.

23. The Tribunal also accepts his evidence that he intends to study in Australia in the future if given the opportunity. However, his wish to return to study must be tempered by the fact he spent a considerable period of time in Australia, on a student visa, without studying and without taking any steps to remedy the situation. The Tribunal does not consider the applicant has demonstrated a compelling need to travel or stay in Australia.

    The extent of compliance with visa conditions.

24. The applicant confirmed that he was not enrolled in a registered course of study for a period of approximately 11 months. This is a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs  towards the cancelling of the visa unless the Tribunal accepts the reasons for non-enrolment.

25. The applicant’s position is that in early 2018 he became very concerned that he was taking tablets every day on account of his thyroid condition. His Doctor told him that he needed to take tablets for the long term. He reacted by deciding to stop taking his medication altogether and stop seeking medical treatment. He says this caused his condition to worsen and he was tired and lethargic. He did not return to study in 2018 and he was not able to study during the whole of 2018. In 2019 he re-engaged with his Doctor, recommenced taking his medication and is now in a position to go back to study.

26. The difficulty for the applicant is that his evidence simply does not demonstrate that his medical condition was of such a nature that it prevented him from undertaking any form of study for a period of 11 months. The Tribunal accepts the applicant has had a thyroid condition that required medication and that it is a long standing problem. It also accepts  he has been concerned about his health and that he has had concerns in relation to the long term use of medication. Whilst the applicant’s provision of various test results allows the Tribunal to comfortably conclude he has a thyroid condition and has had this issue for a number of years, test results provided without any context do not explain his failure to maintain his enrolment in a registered course of study in accordance with his visa conditions. He provided no medical report to explain the relevance of the test results, his failure to study or enrol and why, after all this time he is now in a position to return to study.

27. The applicant stated he was depressed as a result of his concerns in relation to long term medication. However he says he did not seek any medical treatment for depression. The Tribunal considers that in the absence of any formal diagnosis, or any evidence of medical treatment, there is no evidence to conclude that the applicant suffered from mental illness at the relevant time.

28. It is also apparent that whilst the applicant has had difficulties due to his thyroid condition, he was able to study and make solid academic progress with his condition during 2015 – 2017 when he completed his Hospitality courses.

29. The Tribunal also notes that the applicant does not appear to have engaged with his course provider, or the Department in relation to his personal circumstances. There is no evidence that he sought a deferral. Alternatively, the applicant could have returned to his home country until such a time as he was ready to resume his studies. The tribunal considers that a student on a student visa who finds that his personal circumstances are such that he may be in breach of his student visa conditions has a definite choice. One choice is to advise the Department that the student is at risk of breaching Condition 8202 and return to the student’s home country until such time as the student  is personally ready to study successfully in the selected course. Another choice is to remain in Australia on a valid student visa which the Tribunal considers is a decision to recommit to achieving satisfactory course progress.

30. The evidence falls well short of demonstrating that the applicant was unable to study for a substantial period of time due to his medical condition or mental illness. Accordingly, the Tribunal weighs this factor against the application.

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

31. In his written response to the NOICC, the applicant states his parents have invested nearly 1.5million Indian Rupees to provide him with an education in Australia. If his visa is cancelled, and he returns to India without any qualification his family will be in dire hardship.

32. The Tribunal accepts that returning to India without the qualifications he sought to achieve may face some stress and anxiety and considering the evidence I accept that the applicant would suffer some degree of hardship if the visa remains cancelled and I give this some weight towards not cancelling the visa.

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

33. The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

    Whether there would be any consequential cancellations under s 140

34. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled under s 140 of the Act.

    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 , 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 Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.

36. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

37. The Tribunal considers these are the intended consequences of the legislation.

38. In any event, the applicant’s evidence was that if the visa remained cancelled he would return home to India and therefore there is no indication that he would become unlawful or be subject to detention so I give this factor no weight.

    Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation.

39. The circumstances of the case are not such as to engage Australia’s international obligations.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

40. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters.

41. The Tribunal notes that in the delegate’s decision, reference is made to the applicant’s stated laziness as a reason for his inability to study and this appears to have factored in the delegate’s decision. It is apparent from the applicant’s evidence that his use of the term lazy is in the context of the lethargy he felt as a result of his medical condition rather than any negative connotation that may be associated with the plain English use of the term. I accept his evidence on this point and have regard had regard to it.

42. The Tribunal notes that at the conclusion of the hearing, the applicant’s representative made submissions to the effect that there was an “systemic problem” at the Holmes Institute in that in his experience it was a common occurrence that students at Holmes were not notified of a cancellation of their enrolment by the institution. In circumstances in which there was no evidence of such a “systemic problem” tendered by the applicant or his representative I have paid that assertion no regard.

43. However, I note that even if there was evidence provided in relation to this point, it would not have altered my decision. I consider that the critical issue with regard to the applicant’s dealings with Holmes is not whether or not the institute communicated with him effectively in relation to either the deferral or the cancellation of his CoE. Rather, the issue that I have placed weight on is that taking the applicant’s evidence at its highest, if his deferment was accepted by Holmes it would have been for a 3 month period concluding in June 2018 and I would expect a genuine student, having been granted a 3 month deferral, to return to the institute after that time and either re-commence studying or, if he continued to be unable to study for personal reasons, seek a further deferral and provide evidence to support the application. This applicant did neither and there is no evidence that he took any steps towards re-engaging in study for a further 8 months.

44. There appear to be no other relevant matters of significance in relation to the present application for review.

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

   DECISION

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

   D. Triaca
   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.