Jarman Singh (Migration)

[2019] AATA 1704

Jarman Singh (Migration) [2019] AATA 1704 (30 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jarman Singh

CASE NUMBER:  1726071

HOME AFFAIRS REFERENCE(S):           BCC2017/2921211

MEMBER:Joseph Lindsay

DATE:30 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 30 May 2019 at 2:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to ground for cancellation – incident of “random violence” involving relatives in India – severe neck and shoulder pain – parents’ situation in India – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant attended the hearing before the Tribunal on 8 April 2019. The applicant was represented by an agent but the agent did not attend the hearing. The applicant spoke English well and indicated he initially did need an interpreter but then he said he did not need an interpreter. The applicant also had a witness present at the hearing, Mr Vishaldeep Singh.

3. 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

4. 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?

5. 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).

6. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

7. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 24 October 2017 indicating that he had not been enrolled in a registered course of study since 27 February 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 27 February 2017. The applicant indicated that he knew that he needed to remain enrolled in a registered course of study in accordance with his visa conditions.

8. 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)(a) of the Act. The Tribunal finds that the ground for cancellation for the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

   Consideration of the discretion to cancel the visa

9. 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 circumstances in which the ground for cancellation arose

10. The Tribunal asked the applicant about what had happened to him that caused him to cease to be enrolled in early 2017. The applicant indicated that he got news of an incident of random violence in India and this impacted upon his studies. The Tribunal asked applicant what happened, and the applicant indicated that in early 2017 he was going into depression thinking about his family. When the Tribunal asked applicant if he consulted a mental health professional, he indicated that he obtained some medicine from India to treat his depression. When the Tribunal asked him how he got the medicine to Australia, the applicant indicated he got some of his relatives to bring it from India to Australia for him. When asked if his relatives posted the medicine to him, the applicant indicated that he got permission from a doctor in India to get the medicine. The applicant indicated that his relatives actually live in Australia but when they go to India to visit they get the medicine for him. He indicated he asked his parents in India to get the medicine for him to give to his relatives who then brought the medicine back from India to Australia for him. When asked what the medicine was, the applicant passed the Tribunal a piece of paper. The paper indicated it was from Dr Parkash Mohindra in India dated 31 January 2018 and had hand written references to what appeared to be medication. The Tribunal asked the applicant if the paper was a prescription, he indicated the document refers to medicine names. When the Tribunal told him the documents had “not for medicolegal purposes” written on it, the applicant said it is the paper he got for his medicine. The Tribunal asked if he took all this medicine, he responded he did take the medicine. The Tribunal asked when he started taking the medicine, and he said he’s been taking the medicine for the last one and a half years. When the Tribunal asked the applicant how long he has been taken medicine he then said one year. When asked whether he was still on medication, he said he was not on regular medication and he just had it when he wanted it. The Tribunal asked if the medication was antidepressants or antianxiety medication. In response, the applicant indicated the medicine was for stress. The Tribunal again asked whether the medication was antidepressant or antianxiety medication. In response, the applicant indicated he was not sure. When the Tribunal asked the applicant if he had seen a medical practitioner in Australia the applicant indicated he had seen a medical practitioner. When the Tribunal asked the applicant if he had any documentation to show that he had seen a medical practitioner, the applicant referred to information provided to the Tribunal indicating he had been to a physiotherapist. The Tribunal indicated to the applicant that the documentation indicated he had acute strain for his neck and shoulder. The Tribunal put to him that the documentation indicated the person he consulted was not a medical practitioner. In response the applicant indicated he had not seen a medical practitioner in Australia at all.

11. The applicant indicated that his relatives in India had had brought back prescription medication for him from India and he been taking it without him consulting an Australian medical practitioner. The Tribunal asked the applicant how he could take prescription medication without actually seeing a medical practitioner. In response he indicated that he did not have the money and indicated that was the reason why he did this.

12. The Tribunal asked the applicant whether he was on medications at the moment. In response, the applicant passed the Tribunal what appeared to be a packet of medication that he indicated he was taking. He said to the Tribunal “this is from India.” The Tribunal put to him that the medication was prescription medication (Etizola 0.25 mg). The applicant confirmed that the prescription medication was brought from India for him by his relatives without him actually seeing a medical practitioner.

13. The Tribunal put to the applicant that the information indicated that he had started taking the medication as of 31 January 2018. In response, the applicant indicated that he actually started taking the medication the following month which was in February 2018.

14. The Tribunal put to the applicant that the Tribunal wanted him to talk about the time when he ceased to be enrolled in early 2017. The Tribunal put to the applicant that he indicated that he had started taking medication one year after he stopped studying in early 2017. The Tribunal asked the applicant how this was relevant to the time he stopped studying in early 2017. The Tribunal indicated to the applicant that it may put low weight on his evidence that he started taking medication approximately one year after he ceased to be enrolled on the basis that the two events are not proximate to one another. The Tribunal put to the applicant the Tribunal was interested in what was happening to him in early 2017 when he ceased to be enrolled. The Tribunal put to the applicant that while it accepted that he had been taking the medications in the manner he said, the Tribunal did not consider that it was relevant to the events at the time he ceased to be enrolled in early 2017. The Tribunal again asked the applicant to explain what was happening to him in early 2017 when he stopped studying. In response the applicant indicated he was suffering from stress. The Tribunal asked the applicant to explain what he meant by that. In response the applicant indicated that there was an incident of what he called “random violence” with his family in India. The Tribunal invited the applicant to speak about the incident of what he called “random violence” with his family in India.

15. The applicant indicated he found out about the incident when he spoke to his father and mother by telephone. He indicated he asked his mother what was happening because he felt like his father was not talking to him properly. He indicated his mother explained everything that was happening to him. When the Tribunal asked what she explained to him, the applicant indicated that an incident of “random violence” happened to his brother-in-law’s family. The Tribunal asked the applicant if he could be more specific. He indicated that his brother-in-law went to the market at night time to get some food for his family. He indicated that some people at the market said some abusive or inappropriate words to his brother-in-law. He indicated his brother-in-law went back home where he told his brother-in-law’s brother. He indicated his brother-in-law’s brother got a gun and went back to the market. The applicant indicated that some family members tried to stop his brother-in-law’s brother. The applicant said his brother-in-law’s brother fired the gun at someone and killed him. He indicated that after this incident his parents were also stressed. When the Tribunal asked the applicant who his brother-in-law’s brother killed, the applicant said his brother-in-law’s brother was drunk, and he was trying to stop the person (the apparent victim) from fighting with his brother, and so he killed him.

16. The applicant again confirmed his brother-in-law had had a verbal argument with some men, had gone back home, told his brother about it, and his drunken brother went to see these men with a gun and he shot and killed one of them. The applicant clarified that the person who was the victim tried to stop a fight between his brother-in-law’s brother and the men, and so his brother-in-law’s brother shot that person.

17. The Tribunal then asked the applicant why this incident impacted on him in the way he claims it did to the point where it stopped him studying. The Tribunal put to the applicant that the connection between the incident of violence he claimed happened and himself appeared to be remote. The Tribunal put to the applicant that he indicated that the incident involved a family member but not immediate family. In response the applicant indicated that some police came and spoke to his parents. He indicated his parents told him on the phone not to speak to them until the situation had calmed down. The Tribunal asked the applicant if he had understood the question and in response the applicant indicated he did understand the Tribunal’s question. The Tribunal put to the applicant that it was trying to understand how the situation impacted on him to the point where he did not study. In response the applicant indicated that he always thinks about his sister. The Tribunal put to the applicant that it was not even his brother-in-law who had committed the crime, but his brother-in-law’s brother.

18. In response the applicant indicated that the incident simply affected him.

19. The Tribunal asked the applicant that if he spoke to his course provider or the Department about his situation, given he was so affected by this incident. In response, the applicant indicated he did tell his course provider. The applicant indicated he told his course provider he wanted to change his study days from the weekend to weekdays because no one was at home.

20. The Tribunal asked the applicant if he told his course provider what he had just told the Tribunal. In response he said “yep.” The applicant clarified that he did not tell the course provider. When the Tribunal asked again whether he told his course provider, the applicant said, “no”. When the Tribunal asked the applicant if he spoke to the Department, the applicant said, “no”. When the Tribunal asked the applicant if there is a reason why he did not tell his course provider or the Department, the applicant indicated that he could not understand at the time what he should do.

21. The Tribunal put to the applicant that come February 2017 he was no longer enrolled in his course. The Tribunal asked the applicant what he was doing at that time. The Tribunal asked the applicant how he was trying to fix the situation. The Tribunal asked the applicant if he did anything at all about it. The applicant responded that he just lived at home and nothing else. The Tribunal put the applicant that if he was not enrolled, and he was on a student visa he was going to receive a notice from the Department. In response he said, “yes”. The Tribunal put to the applicant that he did respond to the notice. In response the applicant said he forgot. The Tribunal asked the applicant if he remembered or not and indicated he did not remember. The Tribunal put to the applicant that it was not that long ago he had received a notice from the Department. The Tribunal put to the applicant that he did write back to the Department and that further he actually responded to the Department three separate dates – on 27 September 2017, 13 October 2017 and 24 October 2017. When the Tribunal asked the applicant if he knew that he responded, “yep.” The Tribunal asked if he wrote the responses; he said, “yes”.

22. The Tribunal put to the applicant that it had been quite a number of months, six or seven months, where he was not enrolled when the Department had come after him to seek an explanation.

23. The Tribunal spoke to the applicant about his response dated 27 September 2017, where he asked the Department not cancel his visa. The Tribunal spoke to the applicant about his response dated 13 October 2017, that explained to the Department he was changing his course. The Tribunal put to the applicant that he had said in his response that he had consulted a general practitioner because he had neck and shoulder pain. The Tribunal asked the applicant whether he had seen a general practitioner or not. The applicant responded that he did see a general practitioner just one time for neck and shoulder pain. The Tribunal put to the applicant that he had previously said in the hearing that he had not seen a general practitioner at all in his time in Australia. In response the applicant said he was talking about the stress problem. The applicant again indicated he did see a general practitioner for his neck and shoulder pain on one occasion. The Tribunal put to the applicant that he had said in his response that he was constantly seeing a GP, which was more than once. The Tribunal asked the applicant whether he saw a GP once or more than once. The applicant indicated he saw the GP once. The Tribunal put to the applicant that once is not constantly. The Tribunal referred to the applicant about his reference to the physiotherapist and referred to the certificate dated 22 December 2016. The Tribunal put to the applicant that the certificate from Roger Chan indicated the applicant could not attend classes for 22 December 2016 and 23 December 2016. The Tribunal put to the applicant that that was for only two days to which he agreed. The Tribunal put to the applicant that he had said he developed severe pain in his neck and shoulder to which he agreed. The Tribunal put to the applicant that it had no medical documentation to show that he had developed severe pain in his neck and shoulder. The Tribunal asked the applicant if he understood the issue; the applicant responded that he did understand. The Tribunal put to the applicant that he had said the pain was so severe that he missed classes and could not complete assignments on time. The Tribunal put to the applicant he said that this situation created a lot of anxiety for him. The Tribunal put to the applicant that he said the situation caused him to fall behind and then he found it hard to catch up on his studies. The Tribunal put to the applicant that he said he did not get any support from his course provider for the missed lectures or delays in submitting assignments. The Tribunal put to applicant he said that the course was technical and that because of the lack of support it made it hard for him to do the course. The Tribunal put to the applicant that he said that as a result he got demotivated and fell behind in his studies. The applicant agreed that he had made these claims.

24. The Tribunal asked the applicant what he told his provider, if anything, in relation to his neck and shoulder pain. In response the applicant indicated he did not tell his provider anything at all in relation to his neck and shoulder pain. When the Tribunal asked why not, the applicant responded that it was due to the stress from his family situation. The Tribunal put to the applicant that he was the visa holder and the Tribunal would reasonably expect that he would go and tell his provider and go and tell the Department if he was encountering a situation that really impacted upon his studies. The Tribunal put to the applicant that if the situation was going to stop him studying it would stop him complying with his visa, and that he as the visa holder was obliged to comply with his visa conditions. The Tribunal invited the applicant to respond, however the applicant made no response to the Tribunal.

25. The Tribunal asked the applicant what the situation was in regard to his parents. The Tribunal put to the applicant that he had said he had had a family situation with his brother-in-law’s brother. The Tribunal asked the applicant if his brother-in-law’s brother situation was the only issue his parents were involved in, and in response he said, “yes”. The applicant then indicated his parents sold their home because the applicant was in Australia to undertake his studies. The applicant then clarified that there was no other issue his parents were involved with that impacted upon his study.

26. The Tribunal put to the applicant that that was not what he had written in his response to the Department. The Tribunal again asked the applicant whether he had written his response dated 13 October 2017, and he responded, “yes”. When the Tribunal asked the applicant whether he remembered what he wrote he indicated he did not remember.

1. The Tribunal put to the applicant that he had said his parents back in India had been involved in a major legal dispute over land, they were getting death threats and they feared for their lives. The Tribunal put to the applicant that he said he got very stressed as things unfolded and he indicated his parents had to go into hiding because they received threatening phone calls from “goons”. The Tribunal put to the applicant that he indicated that his parents made a complaint to police to seek protection. The Tribunal put to the applicant that he indicated his parents would cry over the phone to him and that he wanted to go back to India to help them, but they advised him that he would risk his life if he came to India during the legal dispute. In response the applicant agreed he had said all of this information in his response to the Department. The Tribunal put to the applicant that he had said nothing at the hearing about this circumstance in relation to any property dispute. The Tribunal put to the applicant that he said there were no other issues affecting his parents but then in his written response to the Department, there were clearly other issues that he had talked about. In response the applicant indicated he forgot about these issues, but that he actually bought an airplane ticket to return to India, which he did not use because his parents told him not to go back to India. The Tribunal put to the applicant its concern that the applicant was not giving credible information to the Tribunal about his circumstances, because he was giving inconsistent information. The Tribunal put to the applicant that at one point during the hearing the applicant indicated that the only problem he had with his parents was in relation to his brother-in-law’s brother, and that was all. The Tribunal put to the applicant that he then indicated in his response to the Department something very different about a property dispute his parents were involved in in India, that they were getting death threats, had to go to the police and were extremely to the distressed to the point where he was considering going back to India. The Tribunal put to the applicant that due to this inconsistent information the Tribunal may find that he hasn’t given credible information to the Tribunal about the circumstances surrounding why he stopped studying. In response the applicant indicated that he did not wish to respond, but then he said he can’t say anything.

2. The Tribunal put to the applicant that he had provided a lot of documentation on his Department file. The Tribunal put to the applicant that there was a forensic report on his file. The Tribunal asked the applicant what the forensic report was about. In response the applicant indicated it was about the incident of what he called “random violence.” The Tribunal put to the applicant that the document was difficult to understand. The Tribunal asked the applicant how he got the documentation. In response the applicant indicated he got the documentation by email from his parents. The Tribunal asked the applicant to explain what these documents had to do with himself. The Tribunal asked the applicant if these documents related to his situation he had just told the Tribunal about. The applicant did not respond to the Tribunal’s questions. The Tribunal put to the applicant that he was not clear as to how the documents were relevant to his situation or what they were related to. In response the applicant indicated that the documents were proof of the violence he said happened. The Tribunal put to the applicant the document appeared to be a forensic report for cartridges and a gun. When the Tribunal asked the applicant why he had this information the applicant responded that he was just showing evidence of the violence. The Tribunal asked the applicant when the act of violence happened. In response the applicant indicated it should be in 2016. The Tribunal again put the question to the applicant and indicated to him that was an important question and asked him to again tell the Tribunal when the incident of violence happened. In response the applicant indicated he could not really remember but it was around August 2016. Then said it should be before October 2016. The Tribunal put to the applicant that he had claimed to the Tribunal that this incident of violence and the consequential matters that flowed from that incident of violence was such a significant factor in him ceasing his course enrolment in early 2017 that the Tribunal would reasonably expect that the applicant would know when the incident of violence happened. The Tribunal again asked the applicant when the incident of violence happened and in response the applicant indicated he did not know the date that the incident happened. The applicant indicated he did not remember the date the incident happened. The applicant then said he thought the year the incident happened was 2016. The Tribunal emphasised with the applicant the importance of him explaining to the Tribunal whether he was sure of the date or unsure of the date, and he responded he was unsure. The Tribunal asked the applicant if he could remember the year the incident happened, and in response he said, “2015”. Then he said it may be 2016. The Tribunal put to the applicant that he appeared to be evasive in his response to the Tribunal’s questions. The Tribunal put to the applicant that it was a key part of his claim that he said the incident of violence happened. The applicant then said the incident happened in 2016. When the Tribunal asked the applicant if he was sure, the applicant responded yes. The Tribunal expressed its concern to the applicant that he appeared to be unclear about what had happened to him, given that it was a central part of his claim that this incident was the cause of the stress that led to him not studying any more. The applicant again indicated to the Tribunal he thought the incident happened in 2016.

3. The Tribunal put to the applicant that it had a concern with what he was saying because the forensic report was dated 2015. In response the applicant indicated he forgot the date. The Tribunal then put to the applicant its concern as to whether or not he was giving the Tribunal credible information, because the applicant was being evasive about the date of the incident of violence, an important incident that happened that caused distress to him to the point where he stopped studying. The Tribunal also put to the applicant that he told the Tribunal that the incident happened in 2016 when the forensic report is dated in 2015. The Tribunal put to the applicant that for these reasons the Tribunal may find that he has not given credible information to the Tribunal. When the Tribunal asked the applicant for a response he would not respond to the Tribunal. When the Tribunal asked the applicant whether he was telling the truth to the Tribunal the applicant responded that he was telling the truth, he just forgot the date.

4. The Tribunal asked the applicant what his brother-in-law’s brother’s name was. The Tribunal indicated to the applicant that he hadn’t told the Tribunal the names of those who he alleged were involved in the incident. In response the applicant indicated that he did not know his brother-in-law’s brother’s real name, but that he called him “Denku.”

5. The Tribunal put to the applicant that another concern about his evidence was that he told the Tribunal earlier in the hearing that he did not see a general practitioner, yet the Tribunal noted that the documentary information indicated he had seen a general practitioner. The Tribunal indicated the certificate was from Dr Farshad dated 11 October 2017, indicating that the applicant had family-related stressful condition/depression and anxiety. When the Tribunal asked the applicant if this information was correct, he indicated the information was correct. The Tribunal put to the applicant that the date 11 October 2017 was well after the date that he stopped studying. The Tribunal asked the applicant how this information was relevant to the time he stopped studying in early 2017. In response the applicant said he didn’t go to his college for study. The Tribunal asked the applicant what he was trying to tell the Tribunal. In response he said after that date he never went to college for study. The applicant indicated that he went to the college one time in 2017.

6. The Tribunal asked the applicant about the statutory declaration dated 13 October 2017 from the applicant’s friend, Ravinder Singh. The Tribunal put to the applicant that it may not put much weight on the information in this statutory declaration because his friend was not available at the Tribunal to give evidence. The Tribunal asked the applicant where Ravinder Singh was. The applicant responded that he was at home. Tribunal asked the applicant why he didn’t bring Ravinder Singh to the hearing as a witness, if he had provided a statutory declaration for him. In response the applicant said, “I didn’t bring him here”. The applicant said that’s Ravinder Singh’s arm was not working so he left him at home and he was having a rest.

7. The Tribunal put to the applicant that if the Tribunal could not speak to Mr Ravinder Singh, it could not test what he was saying in his statutory declaration. The Tribunal put to the applicant that Mr Ravinder Singh had provided a mobile phone number and asked the applicant whether he wanted the Tribunal to ring Mr Ravinder Singh. In response he said, “yes, sure”.

8. The Tribunal telephoned the mobile phone number for Ravinder Singh (**** *** 301) on two occasions and on each occasion the message was provided that the mobile phone number was not connected. The applicant provided another mobile phone number for Ravinder Singh (**** *** 911).  The Tribunal put to the applicant that it may put low weight on the information in the statutory declaration because the Tribunal was not able to speak to Ravinder Singh about the information in the statutory declaration.

9. The Tribunal attempted to telephone Kuldeep Singh (**** *** 299) as he had provided a letter to the Tribunal dated 22 May 2018. The Tribunal attempted to telephone Kuldeep Singh on two occasions and on each occasion the phone call did not go through.  The Tribunal put to the applicant that it may put low weight on the information in the statutory declaration because the Tribunal was not able to speak to Kuldeep Singh about the information in his letter.

10. The Tribunal put information to the applicant in accordance with s.359AA of the Act. The Tribunal explained to the applicant that the Tribunal was considering the reasons why the applicant stopped studying in early 2017. The Tribunal put to the applicant that his PRISMS record indicated that his course enrolment was cancelled by his provider on 17 February 2017 because he did not pay his fees. The Tribunal put to the applicant that at no time had he mentioned at the hearing that he did not or could not pay his fees, and that it was not mentioned in any of the written submissions that he provided. The Tribunal put to the applicant concerns that he had not given credible information as to the reasons why he did not remain enrolled in his course in early 2017. The Tribunal explained that that was the reason why this information was relevant to the review, because it may indicate to the Tribunal that the applicant is not giving credible information as to why he did not remain enrolled in his course in early 2017, and that this may cause the Tribunal to find that his student visa should be cancelled.  The applicant indicated he understood what the Tribunal has said to him and he indicated that he did not want additional time to respond or an adjournment, and that he wanted to answer the Tribunal.

11. In response the applicant indicated that he did not have any money to pay the fees in early 2017. The Tribunal asked the applicant why he didn’t say so earlier. In response the applicant indicated that he had lost his employment at that time and he couldn’t borrow money from anybody. He indicated he did not tell his parents he needed the money. The Tribunal asked the applicant if he told his course provider or the Department about his financial difficulties. In response he indicated that he told the branch of the college in Footscray. When the Tribunal asked the applicant if he had any documentary evidence about his communication with his provider, he indicated that he only had a face-to-face interview at the time and did not have any documentation. The applicant indicated that he did not talk to the Department about his financial difficulties. The Tribunal put to the applicant that as the visa holder the Tribunal would reasonably have expected him to speak to the Department if he had difficulty in paying his course fees. The Tribunal put to the applicant that it would reasonably have expected him to speak to his provider to endeavour to find a solution to manage his enrolment. The Tribunal put to the applicant that by early 2017 he had been in Australia for two years. The Tribunal put to the applicant that it had several changes to his confirmation of enrolment over that time. The Tribunal put to the applicant that he had previously changed his confirmation of enrolment, which indicated he knew how to change his confirmation of enrolment. In response the applicant indicated he simply did not have the money to pay his course fees. The Tribunal put to the applicant that he had provided a financial guarantee that he could pay his course fees. In response the applicant indicated that when he changed his course he spent all of his money. When the Tribunal asked the applicant to explain what he meant, he said he spent all of his money changing his course and getting a new confirmation of enrolment. The Tribunal put to the applicant that it was his choice to change his course. In response the applicant agreed it was his choice to change his course.

12. The Tribunal put to the applicant that he had come to Australia on a Subclass 573 visa which was a higher education visa. The applicant agreed. The Tribunal put to the applicant that at no stage was his choice of enrolment ever leading to a higher education degree. The Tribunal put to the applicant that he enrolled in a Certificate III and a Certificate IV in automotive but that this was not higher education. In response the applicant indicated he knew he needed to be enrolled in a higher education course.

13. The Tribunal spoke to Vishaldeep Singh.  The Tribunal put to Vishaldeep Singh that he had said specific things in his letter and the Tribunal invited him to speak about that. He said that he lived for almost two years with the applicant. He indicated he also was on a student visa. He indicated he was aware he had to remain enrolled himself. He said the applicant took medicine. He said the applicant bought a ticket to fly to India. The Tribunal asked him why the applicant’s parents would fear for his life. The Tribunal put to Vishaldeep Singh that the applicant had not said to the Tribunal that he feared for his life, and asked Vishaldeep Singh why he had said that in his letter. In response he indicated that he thought the applicant “maybe” had a fear for his life. The Tribunal put to him it wasn’t an issue of “maybe.”  The Tribunal put to him that a person either did or did not have a fear for their life. The Tribunal put to him that it wanted to know why he was saying that the applicant’s parents don’t want the applicant to go to India because they fear for his life. The Tribunal asked him why he was saying that and how he knew that. In response he said he knew from his family. When the Tribunal asked him who his family was he said his parents. He said his parents gave him this information. When the Tribunal asked him when his parents told him this information he did not answer the Tribunal’s question. The Tribunal put to him that the Tribunal may place low weight on the information he provided because it was in direct contradiction to what the applicant had just told the Tribunal during the hearing. The Tribunal put to him that it was a serious thing to say that a person had fear for their life. The Tribunal would reasonably expect that if a person had a fear for their life there would be a clear reason explaining why they felt that fear. The Tribunal put to him that he was not making that clear to the Tribunal. In response he said nothing. The Tribunal put to him that he said the applicant had applied for study rights and was refused. In response he said, “yeah, he told me”.

14. The Tribunal then spoke to the applicant and asked whether he wrote his written submission dated 31 March 2019. In response he said, “yes”. The applicant claimed he wrote the submission and then sent it to his agent who corrected some words. The Tribunal put to the applicant that once again in his submission dated 31 March 2019 he said he had to constantly see a GP as well as a physiotherapist. The Tribunal put to the applicant the Tribunal had one report from a GP and one report from a physiotherapist. The Tribunal put to the applicant that it did not consider that, based on the information provided, he had constantly seen a GP and a physiotherapist, and that this had been previously discussed in the hearing. The Tribunal put to the applicant that he had again talked about the land dispute and that the Tribunal had discussed this issue with the applicant previously in the hearing. The Tribunal put to the applicant that his 31 March 2019 submission said that his parents were being threatened by dangerous gangs in India. The Tribunal put to the applicant that he had not raised any such issue with the Tribunal during the hearing at all that his parents were being threatened by dangerous gangs in India. The Tribunal put to the applicant there was nothing in his 31 March 2019 submission about the random act of violence that he had previously spoken about concerning his brother-in-law’s brother.

15. The Tribunal asked the applicant if there was any issue that the Tribunal had not raised with the applicant, and he indicated he had a plane ticket to go back to India but did not go. When the Tribunal asked how this was relevant applicant he said it was relevant to the random violence case where his parents told him he could not go back to India.

16. The Tribunal asked applicant why he kept referring to the incident as an incident of “random violence” and asked the applicant what was “random” about it. In the response the applicant said it was gun violence. The Tribunal again asked what was “random” about it, he said, “make some noise for his brother-in-law and his parents.” The Tribunal put to the applicant that it could not understand what he had said. The applicant offered no further explanation as to what he said. The Tribunal again asked why the incident of violence was “random”, and the applicant indicated it was just “random.”

17. The Tribunal asked the applicant how he got the medication. The applicant again indicated he got it from his relatives. When the Tribunal asked the applicant precisely which relatives brought him the medication, he indicated that he did not know their full names and he called one of them “Lucky.” When the Tribunal put to the applicant that he said that “Lucky” got him the medication, he said, “yes”.

18. In considering the above, the Tribunal makes the following findings:

    ·The applicant has been taking prescription medications prescribed by a medical practitioner in India without having actually personally consulted that medical practitioner for those prescription medications.

    ·The prescription medications were brought from India to Australia for him by a relative named “Lucky”. 

    ·The applicant is not sure what exactly the medication is, and he does not know whether it is antidepressant or antianxiety medication.

    ·The applicant has been taking the prescription medication whenever he wanted it.

    ·The applicant started taking the prescription medication from February 2018.

    ·The applicant’s consumption of prescription medication started approximately a year after he ceased his student enrolment.

    ·The applicant’s consumption of prescription medication approximately a year after he ceased his student enrolment had nothing to do with the cessation of his enrolment approximately one year prior. 

    ·The Tribunal does not accept the applicant’s claim that his brother-in-law’s brother fired a gun at someone and killed them on the basis that it was vague and lacked detail.

    ·The applicant gave conflicting evidence as to when the alleged incident of “random violence” happened.

    ·The applicant’s account of how the incident of “random violence” impacted on the cessation of his student enrolment in early 2017 was vague.

    ·The applicant gave conflicting evidence about whether he spoke to his course provider about his circumstances at the time his student enrolment ceased in early 2017 and the Tribunal finds that the applicant did not tell his course provider about his circumstances at the time his student enrolment ceased in early 2017.

    ·The Tribunal finds that the applicant did not tell the Department about his circumstances at the time his student enrolment ceased in early 2017.

    ·The Tribunal finds that the applicant did not do anything to remedy his student enrolment situation in early 2017 and that he just lived at home and did nothing else.

    ·Despite the fact that the applicant provided three separate responses to the Department dated 27 September 2017, 13 October 2017, and 24 October 2017, he did not remember what he had said in those responses.

    ·The applicant did consult a general practitioner just one time for neck and shoulder pain, but he did not consult a general practitioner ‘constantly’ as he claimed.

    ·The applicant did consult a physiotherapist just one time for neck and shoulder pain, but he did not consult a physiotherapist “constantly” as he claimed.

    ·While the applicant had a certificate from the physiotherapist indicating that he could not attend classes for two days (22 and 23 December 2016), there is no medical documentation supporting his claim to have had severe neck and shoulder pain to the extent that it caused him to stop studying.

    ·The Tribunal finds that the applicant’s claim that severe neck and shoulder pain caused the cessation of his course enrolment not to be credible.

    ·The Tribunal finds that if the applicant genuinely had severe neck and shoulder pain to the point where this caused the cessation of his course enrolment he would reasonably have notified his course provider and the Department of his circumstances.

    ·The applicant gave conflicting information in regard to his parents’ situation in India, a situation he claimed caused him stress that impacted on his ability to study, where at one point he indicated that his brother-in-law’s brother’s situation was the only issue his parents were involved in, then he indicated his parents sold their home as the applicant was in Australia to undertake his studies, and this conflicted with his statement to the Department that his parents back in India had been involved in a major legal dispute over land, they were getting death threats, they feared for their lives, they had to go into hiding because they received threatening phone calls from “goons”, they made a complaint to police to seek protection, they would cry over the phone to him and that he wanted to go back to India to help them but they advised him that he would risk his life if he came to India during the legal dispute.

    ·The Tribunal does not accept the applicant’s explanation that he “forgot” as to why he did not tell the Tribunal about his statement to the Department that his parents back in India had been involved in a major legal dispute over land, they were getting death threats, they feared for their lives, they had to go into hiding because they received threatening phone calls from “goons”, they made a complaint to police to seek protection, they would cry over the phone to him and that he wanted to go back to India to help them but they advised him that he would risk his life if he came to India during the legal dispute.

    ·The Tribunal does not accept that applicant’s claims are credible that his parents back in India had been involved in a major legal dispute over land, they were getting death threats, they feared for their lives, they had to go into hiding because they received threatening phone calls from “goons”, they made a complaint to police to seek protection, they would cry over the phone to him and that he wanted to go back to India to help them but they advised him that he would risk his life if he came to India during the legal dispute.

    ·The Tribunal does not accept the applicant’s submission that his purchase of an airline ticket to India that he did not use supports his claims that his parents back in India had been involved in a major legal dispute over land, they were getting death threats, they feared for their lives, they had to go into hiding because they received threatening phone calls from “goons”, they made a complaint to police to seek protection, they would cry over the phone to him and that he wanted to go back to India to help them but they advised him that he would risk his life if he came to India during the legal dispute.

    ·The Tribunal does not accept the applicant’s submission that his purchase of an airline ticket to India that he did not use supports his claims that his brother-in-law’s brother was involved in an incident of random violence that affected his parents or himself.

    ·The Tribunal does not accept the applicant’s submission that the forensic report supports his claims that his brother-in-law’s brother was involved in an incident of random violence that affected his parents or himself.

    ·The applicant was vague and evasive in his evidence regarding when the incident of violence occurred.

    ·The applicant was vague in his evidence regarding the name of his brother-in-law’s brother’s real name, but that he called him “Denku.”

    ·The Tribunal does not accept that the applicant’s claims that his brother-in-law’s brother was involved in an incident of random violence that affected his parents or himself are credible.

    ·The applicant’s consultation with Dr Farshad on 11 October 2017 has no relevance to the reason why the applicant ceased his student enrolment in early 2017, as the consultation occurred well after the cessation of enrolment.

    ·The Tribunal gives no weight to the information in the statutory declaration dated 13 October 2017 from the applicant’s friend Ravinder Singh because the Tribunal was not able to speak to Ravinder Singh despite attempting to contact Ravinder Singh.

    ·The Tribunal gives no weight to the information in the letter dated 22 May 2018 from the applicant’s friend Kuldeep Singh because the Tribunal was not able to speak to Kuldeep Singh despite attempting to contact Kuldeep Singh.

    ·The reason why the applicant ceased his student enrolment in early 2017 was because he did not pay his course fees – as he admitted during the hearing.

    ·The applicant did not talk to the Department about his financial difficulties.

    ·The Tribunal does not accept that the applicant spoke to his provider about his financial difficulties.

    ·The Tribunal gives no weight to the information from the applicant’s friend Vishaldeep Singh because the Tribunal finds that the information the applicant’s friend Vishaldeep Singh gave to the Tribunal was vague, evasive and lacking in credibility.

    ·The Tribunal does not accept that the applicant’s parents fear for their lives or that the applicant fears for his life if he returns to India in the foreseeable future.

1. The Tribunal finds that the applicant’s circumstances as to why he did not remain enrolled, that he did not pay his student fees, are not exceptional circumstances.

2. The Tribunal gives no weight to the applicant’s circumstances as to why he did not maintain his course enrolment.

   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

3. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

   The extent of compliance with visa conditions

4. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

5. In respect of the degree of hardship that may be caused to the applicant should his student visa be cancelled, the Tribunal noted that he had already provided some information about this in the response to the Department and in his written submission to the Tribunal dated 31 March 2019 where he indicated that he would face a significant degree of hardship if his visa would be cancelled.

6. At the hearing, the Tribunal invited the applicant to speak further about this issue. He indicated that if his student visa was cancelled and he returned to India he could not do anything.

7. In consideration of the above, the Tribunal accepts that if the applicant’s student visa was cancelled, he would experience some hardship. However, the Tribunal does not accept the applicant’s assertion that he could not do anything if he returned to India.

8. The Tribunal accepts that if the applicant’s visa is cancelled and he returns to India without completing his Australian degree, this situation will cause emotional distress to himself and his family in India.

9. However, it is expected that the circumstances would reasonably cause emotional distress for the applicant and his family. For this reason, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

   Past and present behaviour of the applicant towards the Department

10. There is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

11. There were no dependants attached to the applicant’s student visa. The Tribunal places low weight on this information in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

12. The Tribunal accepts that the applicant is subject to legal consequences with the cancellation of his student visa.

13. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

14. The Tribunal places low weight on this information in the applicant’s favour.

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

15. The Tribunal asked the applicant if he feared anything in returning India and in response he indicated that he had no fear.

16. As indicated above, the Tribunal gives no weight to the information from the applicant’s friend Vishaldeep Singh because the Tribunal finds that the information the applicant’s friend Vishaldeep Singh gave to the Tribunal was vague, evasive and lacking in credibility. The Tribunal does not accept that the applicant’s parents fear for their lives or that the applicant fears for his life if he returns to India in the foreseeable future.

17. The Tribunal places high weight on the applicant’s evidence that he had no fear of returning to India. 

18. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

19. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

20. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated that he was trying to go back to India in 2016 but he could not get there. The Tribunal asked applicant to further explain; he said his parents told him he had to stay in Australia.

21. The Tribunal places low weight on this information in the applicant’s favour.

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

    Conclusion

23. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 27 February 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

24. The Tribunal finds that the circumstances that led the applicant ceasing his enrolment in a registered course of study, as detailed above, are not exceptional circumstances. 

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

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Class TU Subclass 573 Higher Education Sector visa.

    Joseph Lindsay

    
    

    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.