Kaur (Migration)

[2019] AATA 2549

Kaur (Migration) [2019] AATA 2549 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Simranjeet Kaur

CASE NUMBER:  1823740

HOME AFFAIRS REFERENCE(S):     BCC2018/1677602

MEMBERS:Dr Jason Harkess

DATE:4 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 04 July 2019 at 1:33pm

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 – family problems – reasonable steps to maintain enrolment – purpose of visa not fulfilled – 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. The Applicant is a citizen of India. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 9 August 2018 cancelling her Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 10 July 2015 with an original expiry date of 9 August 2018, providing for more than three years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of her stay in Australia. Specifically, the Applicant was to enrol in and successfully complete a Bachelor of Information Technology. The delegate cancelled the Applicant’s visa on the basis that she had breached that condition of the visa which required her to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 4 July 2019 to give evidence and present arguments. She was assisted by her registered migration agent, Ms Gurpreet Kaur Dhawan.

6. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 6 October 2017 to 1 August 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to almost 10 months during which the Applicant was in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s education provider, MIT, had cancelled her enrolment on 6 October 2017 due to the Applicant failing to make satisfactory course progress. The delegate also referred to the fact that the Applicant’s last day of study at the course provider was 21 April 2017. At the date of the delegate’s decision, the Applicant had not been enrolled in any registered course of study since 6 October 2017.

4. The Department of Home Affairs wrote to the Applicant on 26 July 2018, notifying her of its intention to consider cancelling her student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel her visa. The Applicant did not respond to the NOICC.

5. In her evidence before the Tribunal on 4 July 2019, the Applicant conceded that she had been in breach of her student visa for the period alleged by the delegate.

6. Based on the material available, the Tribunal is therefore satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The purpose for which the Applicant’s visa had originally been granted was for her to study and successfully complete a Bachelor of Information Technology at Charles Sturt University (‘Charles Sturt’), commencing in July 2015. The Applicant stated that, after she arrived in Australia, she commenced that course as planned. However, after the first semester she decided to transfer to an equivalent Bachelor’s course at Melbourne Institute of Technology (‘MIT’). The Applicant explained her reasons for changing course providers as being due to her friends making a similar change from Charles Sturt to MIT.

3. In the course of the hearing, the Tribunal inquired of the Applicant as to what academic progress she achieved at Charles Sturt in the second half of 2015 and at MIT throughout 2016. She suggested that she had attended classes during these periods. However, it became evident as the hearing progressed that she did not perform satisfactorily at all. The Tribunal asked if she had copies of her academic records from Charles Sturt and MIT for those respective time periods. She said that she did not. The Tribunal explained to the Applicant that, in the absence of such absence, the inference to be drawn is that she did not progress to a satisfactory level. By the end of the hearing, and after considering the submissions of the Applicant’s representative, it seemed reasonably clear that the Applicant had not achieved anything by way of academic progress in the 18 months that she had been in Australia up to the end of 2016.

4. In early 2017, it came to the Applicant’s attention that there were some significant family problems beginning to manifest back in India. Her maternal aunt, who had been separated from her husband (the Applicant’s uncle) for some years, approached her husband to resurrect the relationship. The Applicant’s uncle had recently retired from the armed forces. The Applicant’s uncle agreed to move back in with the Applicant’s aunt in an attempt to restore the relationship. However, shortly after resuming the relationship, the Applicant’s uncle ‘walked-in’ on the aunt, in their home, when she was in a compromising position with another man. That man occupied a senior position within the Indian police force. The situation of the affair, and other affairs with other men in public roles, subsequently became public knowledge. The Applicant has provided evidence that the whole affair relating to her aunt and uncle received significant media attention in India, as well as on social media. According to the Applicant, the whole situation created significant and long-lasting humiliation and embarrassment for the Applicant’s extended family in India.

5. According to the Applicant, the situation that was occurring in India in relation to her aunt and uncle also created a significant amount of distress and humiliation for her. According to the Applicant, it impacted on her ability to study. She ceased her studies altogether, and this cessation of studies is reflected in the delegate’s decision record as summarised above. In the course of her written submissions, the Applicant’s migration agent also referred to other problems that arose in Australia in 2017, including a minor car accident she was involved in on 3 December 2017. The suggestion, it seems, is that such incidents aggravated her stress.

6. While the Tribunal accepts all the evidence in relation to the Applicant’s family situation back in India, and about the car accident in Australia, it does not accept this evidence as providing a foundation for a satisfactory explanation for her decision to cease her studies altogether and breach her visa. Many student visa holders are forced to contend with personal difficulties during their stay in Australia. They are all burdened in their own way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. While the public scandal associated with the Applicant’s family situation in India creates a somewhat unusual situation, the Tribunal does not consider it to be a situation creating a situation of exceptional stress for an international student in the Applicant’s situation.

7. In any event, in such circumstances, registered course providers and the Department of Home Affairs have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. For 10 months she remained unenrolled in any registered course of study. She made no attempts to contact the Department of Home Affairs about her personal situation or her course provider to seek a deferral of her studies. The Tribunal is of the view that the Applicant’s behaviour in this regard fell short of a reasonable student visa holder in this kind of situation. Her failure to do anything in this regard resulted in an ongoing breach of her visa.

8. In these circumstances, the Tribunal has significant doubts about the veracity of the Applicant’s claims that she was mentally impeded to such an extent that she was unable to study. The Applicant’s migration agent referred to the fact that the Applicant saw a psychologist in 2018 and was prescribed medication to deal with her mental health situation. While that may be the case, the Applicant stated that she only took this medication for a brief period of 1-2 months. There is also no evidence before the Tribunal that indicates that the Applicant was suffering a diagnosable mental condition that would have impacted her ability to make rational decisions throughout 2017 and 2018.

9. In these circumstances, the Tribunal has formed the view that her personal suffering arising from her family situation in India falls into the category ordinary mental difficulties that people generally suffer on a daily basis in dealing with life’s stressors. Furthermore, the problems associated with her aunt and uncle, while impacting on her family, seem too remote from her circumstances in Australia at the time to justify a decision to breach her visa. In the end, the Applicant’s explanation of the situation effectively amounts to a statement that she was unable to deal with her personal problems while, at the same time, maintaining her legal obligation to comply with an essential condition of her student visa. She chose not to comply with an essential visa condition

10. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete her education. The Tribunal accepts that it would be difficult for her were she not allowed to complete successfully an Australian qualification. She has expended time and financial resources in her time in Australia so far. The Tribunal accepts her evidence that she highly values the opportunity to obtain an Australian qualification and that her family will be disappointed if she does not return with a Bachelor’s degree. However, that desire must be tempered with the extent of her non-compliance with the conditions of the visa. It was a student visa which obliged her to prioritise studying in Australia the entire time she has been here. In the Tribunal’s view, she has not provided a satisfactory explanation for not complying with that fundamental condition. Indeed, it seems that she has achieved nothing at all in terms of study progress for the entire operational period of the visa. It seems that she has fundamentally failed to utilise her student visa effectively for the purpose it was designed to serve.

11. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

12. The Tribunal notes that if the visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Migration Act 1958 if she does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting her options to apply for further visas from within Australia. She will also be subject to a 3 year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

13. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow her to make arrangements for her to depart Australia. She is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to her departure from Australia.

14. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

15. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa.

Dr Jason Harkess
Member