Italiya (Migration)

[2019] AATA 6126

Italiya (Migration) [2019] AATA 6126 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vimal Italiya

Ms Bhumi Jitendrakumar Savani         

CASE NUMBER:  1809554

HOMA AFFAIRS REFERENCE:               BCC2017/4833347

MEMBER:Joseph Lindsay

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 August 2019 at 2:37pm

DATE OF WRITTEN RECORD:                17 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 17 October 2019 at 4:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – genuine student – low or non-attendance and participation, non-completion of courses and course enrolment cancelled – discretion to cancel visa – factors for and against cancellation – unhappy arranged marriage with wife remaining in home country ended in divorce – mental health – inadequate medical documentation – no documentation of contact with course provider – no attempt to resume studies – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(fa)(i), (1A), 119, 140, 359

Migration Regulations 1994 (Cth), r 2.43(1C), (1D)

CASE

MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 April 2018 made by a delegated decision maker under Section s116 (General Power) of the Migration Act 1958 (the Act) to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(fa)(i) of the Act.

2. At the hearing on 15 August 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons. This written record is not a verbatim reflection of the exact words the Tribunal used in the hearing. However, this written record accurately reflects the Tribunal’s reasons for its decision.  

3. Mr Vimal Italiya attended the hearing before the Tribunal on 15 August 2019, however Ms Bhumi Jitendrakumar Savani did not attend the hearing.

4. The applicant spoke to the Tribunal in English and did not require the use of an interpreter.

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. Relevantly to this case, these include the ground set out in s.116(1)(fa)(i). 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.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A) of the Act and r.2.43(1C) and (1D) of the Migration Regulations 1994. The prescribed matters are set out in the attachment to this decision.

10. In the hearing, the applicant provided a certificate dated 29 September 2017. The applicant claimed that the person mentioned in the certificate was his doctor, although the certificate did not indicate that the person was the applicant’s doctor. The applicant provided a court document about his divorce from Ms Bhumi Jitendrakumar Savani on 15 April 2019. The applicant indicated that Ms Bhumi Jitendrakumar Savani was back in India.

11. The applicant indicated he had read and understood the delegate’s decision. He indicated he understood why the delegate had cancelled his visa on 4 April 2018. He indicated he did not finish his study and he understood that his visa was cancelled on the basis that he was not a genuine student.

12. When asked whether he agreed that he was not a genuine student and there was a ground to cancel his visa, the applicant disagreed and claimed he was a genuine student.

13. The Tribunal explained to the applicant that in the delegate’s decision, the delegate outlined the reasons why the delegate decided the applicant was not a genuine student. The Tribunal asked the applicant whether he agreed with the facts as found by the delegate. In response, he indicated that he did not.

14. The Tribunal then indicated to the applicant that it would consider the information in the delegate’s decision and asked the applicant to indicate which facts he did agree with or did not agree with.

15. The Tribunal put to the applicant that he got his student visa granted to him on 30 May 2016, to which he said “yes.”

16. The Tribunal put to the applicant that he had not completed any registered courses, to which he said “yes.”

17. The Tribunal put to the applicant that for the 17 months he had held a visa, he had only actively partaken in his studies for four months, and that for 76.5% of the time he held his visa he had not been studying (which was most of the time), to which the applicant indicated that this was true.

18. The Tribunal put to the applicant that he had not attended any study since 25 November 2016, which was quite a long time because he got his visa on 30 May 2016 and he had not attended any study since 25 November 2016, to which the applicant responded this was correct.

19. The Tribunal put to the applicant that his course enrolment (Confirmation of Enrolment – COE) was cancelled on 4 January 2018, to which he said “yes.”

20. The Tribunal put to the applicant that at the time he was sent the Notice of Intent to Consider Cancellation (NOICC) he was not enrolled, to which he said “yes.”

21. The Tribunal put to the applicant that he did not submit any assessment work or attend any exams therefore resulting in zero grade results, to which he said “yes.”

22. The Tribunal put to the applicant that the non-attendance was noted by his lecturers, to which he indicated this was correct.

23. The Tribunal put to the applicant that despite his enrolment in Semester 2, he failed all 16 units, to which he said “yes.”

24. The Tribunal put to the applicant that he did not obtain an enrolment in 2017, to which he indicated “yes.”

25. The Tribunal put to the applicant that it had just gone through all of these facts and the applicant had agreed to them all, to which he said “yes.”

26. The Tribunal asked the applicant why then he thought he was a genuine student. In response, the applicant indicated he studied for a few months but was depressed so he could not study. The Tribunal put to the applicant that if he was a genuine student he would have studied but he did not study.

27. The Tribunal put to the applicant that the information, as the applicant had himself made admissions to, indicated that the applicant was not a genuine student. In response, the applicant indicated that there was nothing he wanted to say.

28. Accordingly, the Tribunal found that the applicant was not, or was not likely to be, a genuine student. The Tribunal was therefore satisfied that there was a ground for cancellation of the applicant’s student visa under s.116(1)(fa)(i) of the Act.

29. The Tribunal then considered the discretionary factors.

    Consideration of the discretion to cancel the visa

30. 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’.

31. The Tribunal asked the applicant whether the information he provided to the delegate in the NOICC was still correct, and he agreed the information was still correct.

32. The Tribunal noted that the applicant had not provided very much information to the delegate in his response, to which he agreed.

33. The Tribunal put to the applicant that he had said, in summary, that he was sick and his wife was sick, to which he agreed.

34. The Tribunal asked the applicant if he wanted to provide any further detail. In response, the applicant indicated he got married in 2015, and he came to Australia in 2016. He indicated his then wife’s parents wanted to send her to Australia. He indicated he could not afford to bring her to Australia. He indicated that a disagreement occurred where his then wife’s parents wanted him to bring his then wife to Australia. He indicated that the marriage was an arranged marriage. He indicated that he was living in Perth at the time, but that the marriage became an unhappy marriage. He indicated that, because of the unhappy marriage, he got depressed and got anxiety. He indicated that he could not focus. He indicated that she told him she did not want to be with him. He indicated that he felt “completely broken.” He said he spoke to his parents about it. He indicated he returned to India and while he was there he took tablets to treat his depression.

35. The Tribunal asked the applicant whether he contacted his course provider about his circumstances (unhappy marriage and getting sick). In response, the applicant indicated he did contact his course provider.

36. The Tribunal asked the applicant whether he had any documents about his contact with the course provider, and he said ‘no.’

37. The Tribunal asked the applicant whether he contacted the Department about his concerns and issues and he said ‘yes.’

38. The Tribunal asked the applicant whether he had any documents about his contact with the Department, and he said ‘no.’

39. The Tribunal considered the documentation about the applicant’s claim he had been diagnosed with schizophrenia. The Tribunal put to the applicant that nowhere on the documentation did the person (who the applicant claimed treated him in India) say he was a doctor or that he was the applicant’s doctor.

40. The Tribunal put to the applicant that the document indicated that the applicant had received a diagnosis of schizophrenia, and that he suffered depression and anxiety since 2016 that resulted in schizophrenia - “a significant mental illness that causes him to have an altered experience of reality.” The Tribunal put to the applicant that a diagnosis of schizophrenia was not an insignificant diagnosis to be given, and to that the only information about his diagnosis or treatment for schizophrenia was a single document with the deficiencies that had just been explained to him. The Tribunal put to the applicant that it was for these reasons that it may put low weight on the documentation. In response, the applicant said he could get more documents but he indicated that he did not have any further documents at the hearing.

41. The Tribunal asked the applicant that, in respect to his health condition, what he had done in Australia in relation to his health condition. The Tribunal asked the applicant what medication he had been taking. In response he said he had been taking antidepressants, but that he had stopped taking medication altogether because the doctor said to him ‘it’s fine.’ The Tribunal put to the applicant that he had claimed he had been diagnosed with schizophrenia and that he had told the Tribunal he had stopped taking medication. He responded that a doctor told him to stop. The Tribunal asked the applicant which doctor told him to stop taking medication. He responded that he was ‘constantly speaking with him.’ When the Tribunal asked the applicant who he had been speaking with, he indicated it was the same person who signed the documentation from India and that he had no treating doctor in Australia.

42. The Tribunal asked the applicant if he was indicating to the Tribunal that he was now healthy and well, and in response he said ‘yes.’

43. The Tribunal put to the applicant that it had significant concerns with what he had told the Tribunal, that the applicant had claimed he had been given a diagnosis of schizophrenia, depression and anxiety since 2016, and this was not a small or inconsequential diagnosis, and that for him to say that he had got advice from someone who does not even identify themselves as a doctor in another country that he was ‘ok’ now and that he did not need to take medication anymore and that he was healthy and well was concerning. The Tribunal put to the applicant that, for those reasons, it may put low weight on what he was saying. In response, the applicant said that when he spoke with the person in India he told that person he was feeling alright and that he just wanted to start afresh and forget everything. He indicated that every day he was speaking with his parents who were giving him moral support. He indicated they wanted him to start afresh and focus on his career.

44. The Tribunal asked the applicant about his divorce, and asked the applicant what he wanted the Tribunal to know about that situation. In response, he indicated that the marriage was an arranged marriage but it was not a happy marriage. He indicated that he could not tell anyone in India about this situation. He indicated that this was the main reason why he could not focus on his studies and that he still could not believe what had happened to him.

45. The Tribunal asked the applicant if there was anything else he wanted to say about the circumstances in which the ground for cancellation arose, and he indicated he had nothing further to add.

46. In respect to the other conditions of his visa, the applicant indicated he had complied with the other conditions of his visa.

47. In respect to the purpose of his travel to Australia, the applicant indicated that his purpose was to study.

48. In respect to his past and present behaviour towards the Department, the applicant indicated that there was nothing he wanted to say about that.

49. In respect to s.140 of the Act and any consequential cancellations, the applicant indicated that his ex-wife was on the visa but that she had never in fact come to Australia at all. The Tribunal asked the applicant how it was that he had fought with his now ex-wife given she never came to Australia. In response, he said there was “nothing” and that his ex-wife did not want to speak to him. The applicant indicated that he was in Australia, and that he also had his brother in Australia with him. The Tribunal asked the applicant how his ex-wife could be causing difficulty for him in Australia, given she never came to Australia. He indicated he had his new married life when he was in India but that it was when he came to Australia things changed for him. When the Tribunal asked the applicant why he did not go back to India for her, he said he tried but she did not want to listen to him, and she told him she wanted to come to Australia to be with him.

50. The Tribunal asked the applicant if he went to see his now ex-wife when he went back to India in 2017. He said he tried to but her parents said no. When the Tribunal asked why not, he said he was told “she does not want to live with you anymore.” He said his ex-wife’s parents wanted to send their daughter to Australia but his parents could not afford that.

51. The Tribunal put to the applicant that, in the arranged marriage, because his parents could not afford to send her to Australia she did not want to be with him, and in response he agreed this was correct.  He said that was the main reason. He indicated the marriage had been important to him because his ex-wife was his first love and they had lived together for 6-7 months. The applicant confirmed that it was possible to get a divorce in India without him being there, by using a notary to act on his behalf. He indicated that, reluctantly, he agreed to the divorce in accordance with her wishes.

52. In respect to the legal consequences of cancelling his visa, the applicant indicated he was aware that he would become an unlawful citizen liable to detention and removal. The applicant made clear that if his visa was cancelled he would not go unlawful and he would return voluntarily to India. He indicated he was aware that he would have to wait for three years before he could apply for another visa.

53. In respect to any fear he had in going back to India, he responded that life would be hard and he did not know what he was going to do or how he was going to survive without an education.

54. In respect to any degree of hardship that may be caused to him if his visa in cancelled, he indicated his father borrowed money from a family member and he also sold property to send the applicant to Australia. He indicated he did not know how he was going to face his father. He indicated his brother was working in Australia on a 457 visa. He indicated his brother was paying everything because he did not work since his student visa was cancelled.

55. In respect to any other relevant factors, the applicant indicated there was nothing further he wanted to raise.

56. The applicant’s representative made mention about the applicant taking medication. The applicant indicated he got medication from overseas through his friend. The Tribunal then called an adjournment.

57. After the adjournment, the hearing resumed. The Tribunal then spoke with the applicant about a certificate issued s.359 of the Act on the applicant’s departmental file.  The Tribunal then spoke with the applicant about the validity of the certificate. The Tribunal read the information on the certificate to the applicant, indicating that the certificate covered information to the department about what essentially was an anonymous “tip-off.” The Tribunal considered the certificate and was satisfied the certificate was valid. The Tribunal then spoke with the applicant about whether the information covered by the certificate was relevant to the review. The Tribunal put to the applicant that the information appeared to be relevant and adverse to the applicant. The Tribunal put to the applicant that someone had anonymously had given information to the department indicating that the applicant was not studying. The Tribunal put to the applicant that he had already told the Tribunal that he had not studied, so this information was not new or in dispute. The Tribunal put to the applicant that the information was from an anonymous source that could not be identified. The Tribunal put to the applicant that it was not able to contact that person or call them as a witness or do anything to test the veracity of the information that person provided. Accordingly, the Tribunal put to the applicant that it was not proposing to put any weight at all on the information covered by the certificate. 

58. The applicant then claimed the person who put in the “anonymous tip-off” was his ex-wife’s uncle in some attempt to blackmail him. He indicated his ex-wife’s uncle was rich and wanted to blackmail him in order to make him bring his wife over to Australia. When asked what was the motivation behind his ex-wife’s uncle attempt to blackmail him to make him bring his wife over to Australia, given his ex-wife had a visa to come to Australia. The applicant indicated that there was pressure brought to bear on his father to pay, but his father had no money.

1. The Tribunal confirmed that it would not put any weight on the information covered by the certificate.

2. The Tribunal then noted that it had been indicated by the applicant and his representative that they did not wish to make any further submissions and that the Tribunal may proceed to making an oral decision. The Tribunal then called an adjournment.

3. After the adjournment, the Tribunal informed the applicant and his representative that the Tribunal was going to make an oral decision. These are the Tribunal’s findings as follows.

4. The Tribunal found that the applicant was not, or was not likely to be, a genuine student for the following reasons.

5. The Tribunal accepted:

   -The applicant arrived in Australia on his TU-573 Higher Education Sector visa on 12 June 2016 and have remained onshore since.

   -Since being granted the visa on 30 May 2016 the applicant has not completed any registered courses.

   -Of the time for which the applicant held his student visa, he had only actively partaken in his studies for four (4) months. That is, for 76.5% of the time he held his student visa, he had not been studying.

   -The applicant did not submit any assessment work or attend exams therefore resulting in zero grade results.

   -The applicant’s non-attendance was noted by his lecturers.

   -Despite his enrolment in Semester 2, the applicant failed all 16 units; and he did not obtain enrolment in 2017.

   -The applicant made admissions to the Tribunal in the hearing that all of these facts are correct.

   -The Tribunal indicated to him that a genuine student would reasonably have made more progress on their studies than he did and in response to appeared to accept that proposition.

   -The Tribunal found that it is reasonable to expect that if the applicant were a genuine student he would reasonably have progressed his studies to a greater extent over the period of time in which he was enrolled.

   -Accordingly, the Tribunal found that the applicant was not, or are not likely to be, a genuine student.

   -The Tribunal was therefore satisfied that there is a ground for cancellation of the applicant’s student visa under s.116(1)(fa)(i) of the Act.

6. In respect to the discretion as to whether or not to cancel the applicant’s student visa, the Tribunal made the following findings: 

   -The Tribunal accepted that the purpose of the applicant’s travel to and stay in Australia was to study and the Tribunal gave this some weight in his favour.

   -The Tribunal accepted that the applicant appeared to have complied with the other conditions of his visa and the Tribunal gave this some weight in his favour.

   -The Tribunal accepted that there may be some degree of hardship caused to the applicant and his family members if his student visa was cancelled. The Tribunal accepted that that the applicant’s father borrowed money and sold property to help the applicant in his studies and his parents have limited financial means to assist him. The Tribunal accepted that the applicant did not know how we was going to face his family on his return to India. Accordingly the Tribunal accepted that there may be some degree of hardship caused to the applicant and his family members if his student visa was cancelled and the Tribunal gave this some weight in his favour.

   -In respect to the circumstances in which the ground for the applicant’s student visa cancellation arose, the Tribunal accepted his submissions where he indicated he came to Australia in an arranged marriage, but that it was an unhappy marriage that ended in mutually agreed divorce earlier this year. The Tribunal accepted that the applicant’s now ex-wife, who was also a dependent on his student visa, never came to Australia. The Tribunal accepted that the effect of the disharmonious situation adversely impacted on the applicant. The Tribunal accepted that when the applicant went back to India in 2017 he was informed that he had a diagnosis of schizophrenia and depression and anxiety for which he obtained a number of different medications from India but now he had received advice that he was better and he had stopped taking medication. Accordingly the Tribunal give the applicant some weight in his favour in this respect.

   -The Tribunal accepted that there was a s.376 certificate on the applicant’s file that the Tribunal decided was valid but also decided the Tribunal would not place any weight on the information covered by the certificate because the information was from an anonymous person that the Tribunal had no way of testing. The Tribunal indicated to the applicant that the anonymous tip off indicated, in summary, the applicant was not a genuine student. Despite informing the applicant that the Tribunal would not place any weight on this information, the applicant indicated to the Tribunal that the tip off was from his ex-wife’s uncle who he indicated was trying to blackmail him. Accordingly the Tribunal placed no weight on the information subject to the certificate.

   -When the Tribunal asked the applicant if he had contacted his course provider or the department in an attempt to bring his issues to their attention and to address his situation, the applicant indicated that he did but that he did not have any documentation at the hearing in respect to such contact. Accordingly the Tribunal placed low weight on these facts in the applicant’s favour.

   -However, despite these circumstances the Tribunal was not satisfied that the applicant took sufficient steps to resume his studies and complete his education despite having a more than ample opportunity to do so. Despite not undertaking any further study since 25 November 2016, the applicant did not seek assistance for his health issues until his return to India in 2017. Despite obtaining that assistance, the applicant never resumed his studies and when he received the NOICC on 8 March 2018, he was not registered or studying in a registered course of study. This is all against a background of events that the applicant agreed were correct, including that a) of the time for which he held his student visa, he had only actively partaken in his studies for four (4) months - that is, for 76.5% of the time he held his student visa he had not been studying; b) the applicant did not submit any assessment work or attend exams therefore resulting in zero grade results; c) his non-attendance was noted by his Lecturers; d) despite his enrolment in Semester 2, he failed all 16 units and he did not obtain enrolment in 2017. Accordingly for these reasons the Tribunal placed heavy weight on these facts against the applicant.

   -The applicant came to Australia in 2016 on a higher education student visa to study higher education and he did not adequately progress his studies and the Tribunal did not accept that he took reasonable steps in relation to his course provider or the department to notify them of his circumstances or of his actions and to make reasonable attempts to complete his studies. In all the circumstances as discussed, the Tribunal did not accept that the circumstances in which the ground for cancelling the applicant’s student visa were beyond his control.

   -The Tribunal had no information in regard to the applicant’s past and present behaviour towards the Department. Accordingly, the Tribunal give the applicant no weight in respect to this factor.

   -The Tribunal accepted that if the applicant’s student visa was cancelled his now ex-wife’s visa would also be cancelled under s.140 of the Act but, given she never actually came to Australia and the applicant was now divorced, the Tribunal gave this no weight in the applicant’s favour.

   -The Tribunal accepted that there were legal consequences as discussed to the applicant if his student visa was cancelled. The Tribunal accepted that the applicant would become an unlawful non-citizen and he may be liable to detention and removal from Australia if he did not voluntarily depart. The Tribunal accepted the applicant may be subject to s48 of the Act that would limit his options of applying for further visas in Australia. The Tribunal accepted that the applicant would be subject to Public Interest Criterion 4013 that means he may not be granted a temporary visa for three years from the date of the decision. In respect to these legal consequences to the applicant, The Tribunal gave low weight to the consideration for not cancelling the student visa.

   -The Tribunal accepted there was no indication that any international obligations would be breached as a result of cancelling the applicant’s student visa.

   -The Tribunal accepted the applicant indicated there were no other relevant factors as to why his student visa should not be cancelled.

   -After careful consideration of the information before the Tribunal, the Tribunal did not accept that the circumstances of the applicant’s visa cancelation were beyond his control and the Tribunal was satisfied that there was a ground for cancelling his student visa. The Tribunal was satisfied that the circumstances in favour of cancelling the applicant’s student visa outweigh the circumstances for not cancelling his student visa.

   DECISION

7. The Tribunal affirmed the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector visa (Subclass 573).

   Joseph Lindsay

   
   

   Member

   ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

   …

   (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

   (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

   (a)because of the conduct of the holder; or

   (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

   (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

   (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.