Parminder Singh Ralh (Migration)

[2019] AATA 6051

Parminder Singh Ralh (Migration) [2019] AATA 6051 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Parminder Singh Ralh

CASE NUMBER:  1828847

HOME AFFAIRS REFERENCE(S):          BCC2018/1399012

MEMBER:D. Triaca

DATE:3 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 October 2019 at 12:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – difficulty with study and change of college and course to study at lower level –physical and mental health – substantial period of non-enrolment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

CASES
Boettcher v Driscoll (2014) SASC 86
De Angelis v de Angelis [2003] VSC 432
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course, enlivening the cancellation power under s 116(1). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 14 August 2019 to give evidence and present arguments. 

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, relevantly requires the applicant to be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Prior to the cancellation he was sent a Notice of Intention to Consider Cancellation (NOICC), to which he responded.

9. The delegate of the Department found that the applicant had not been enrolled in a registered course of study for a period of approximately 9 months between 20 October 2017 and 2 August 2018. In his evidence before the Tribunal, the applicant confirmed this was true and correct. In these circumstances the Tribunal finds the applicant was in continuous breach of his visa requirement for that period.

10. 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).

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    Applicant’s Evidence

12. The applicant is 25 year old citizen of India. He arrived in Australia in 2014 with the intention of studying Bachelor of Engineering and Technology at Chisholm Institute.

13. He enrolled and commenced studying that course. However, he found the course difficult and his results were poor. He says he failed 50% of the course in the first year.

14. Around that time the supervisor of the course suggested that he consider changing courses.

15. He subsequently enrolled in a cookery courses at Stotts College.

16. He provided documentary evidence to confirm that he had completed a Certificate III in commercial cookery and begun a certificate IV in commercial cookery and provided Statements of Attainment dated 22 February 2017.

17. He suffered from ill health in late 2017 suffering a liver infection. He provided medical certificates dated 9 to 20 October 2017 and 28 October 2017 to 9 November 2017.

18. He says that he was depressed due to his health issues but did not have any formal diagnosis and did not seek any medical treatment.

19. Since around mid- 2018 he attempted to engage with different education providers and return to study. He is hoping to complete his study at ACOT as his new education provider. He hopes to return to study and finish a Diploma and Bachelor of Hospitality.

20. He says he will suffer hardship if he has to return home without a finishing his qualifications. His parents are not financially stable and he cannot rely on his parents. It is difficult to obtain work in India without qualifications.

21. His health issues have now resolved.

    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

22. The term “compelling need” is not defined in the PAM3. I take it to have its ordinary meaning, having regard to both the context and the purpose of the PAM3 and s 116 of the Act.[1]

    [1] Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28

23. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs[2] (“Paduano”).  Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    [2] (2005) 143 FCR 204

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

25. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said (emphasis added):

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

27. “Need” is a relative concept.[3]  It has been described as different from “want”. Need has been said to be a more flexible word than it may first appear. “In need of” plainly means more than want, but if falls far short of “cannot survive without.”[4]  Need and want are not interchangeable.[5]

    [3] De Angelis v de Angelis (2003) VSC 432 per Dodds Streeton J at [45]

    [4] See Lord Neuberger of Abbotsbury, in the House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]

    [5] Boettcher v Driscoll (2014) SASC 86 at [41] per David J

28. The Tribunal accepts that the applicant’s initial purpose of travel to Australia was to study and that he enrolled in a registered course in accordance with that purpose. However, after failing to progress academically he transferred to lower level courses, studying a Certificate III and IV in Commercial Cookery.

29. His enrolment was cancelled in October 2017.

30. In a nutshell, the applicant’s argument is that his health issues were such that they caused him to be unable to study in October 2017 and they were of such a nature that they prevented him from returning to study for a period of at least 9 months.

31. I accept that the applicant suffered from ill health in about October and November 2017. A liver infection is no doubt a serious condition and it does not surprise me that this had an impact on his studying. However, the applicant’s documentary evidence is that he was unable to study for a period of approximately a month.

32. The thrust of the applicant’s evidence was that this physical illness combined with depression to prevent him from leaving the house and going back to study for an extended period of time. However, he did not obtain any formal diagnosis and he did not seek treatment and as such, the evidence falls well short of establishing that during late 2017 and most of 2018 he suffered from a mental health issue that was of such a nature that he was effectively housebound for an extended period of time.

33. In these circumstances I accept that a medical condition may have prevented him from studying for a period of time, I do not accept that his medical condition was of such a nature that it prevented him from studying for a period of approximately 9 months and I consider that in 2018 the applicant was in Australia on a student visa but not studying and not taking sufficient steps to rectify this situation. I do not consider the applicant‘s purpose in Australia was studying during this period and this weighs against the application.

34. It also weighs against the application that the applicant’s academic progress in Australia was minimal in the first year in Australia. He says that he failed at least 50% of this course at Chisholm. The only academic progress the applicant has made in Australia appears to be in courses at a lower level to which the applicant intended to study upon his arrival in Australia.

35. I accept that the applicant may return to study if given the opportunity. However, the applicant’s present intention to return to study must be balanced against his failure to do so for an extended period of time when having the opportunity so I give this only minimal weight in his favour.

36. Having regard to the applicant’s evidence and his NOICC response, the Tribunal does not consider the applicant has demonstrated a compelling need to travel or stay in Australia. Accordingly, the Tribunal gives only marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions.

37. The applicant confirmed that he was not enrolled in a registered course of study from 21 May 2018 until the cancellation of his student visa for a period of approximately 9 months. This was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs towards the cancelling of the visa unless the Tribunal accepts the reasons for non- enrolment.

38. In his evidence, the applicant stated reasons for his non enrolment is the result of his ill health.

39. The Tribunal refers to paragraphs 28 – 32 above in this regard.

40. The Tribunal considers the applicant’s behaviour since arriving in Australia demonstrates a lack of commitment to his studies and he did not satisfactorily explain his failure to maintain his enrolment in a registered course or his failure to remedy that situation and the Tribunal gives this factor weight in favour of cancelling the student visa.

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

41. The applicant states he will suffer hardship if he returns to India without finishing his qualifications. The Tribunal accepts that returning to India without the qualifications he sought to achieve may cause some stress and anxiety. Whilst the applicant will have the benefit of the skills has learned in the Certificates III and IV in commercial cookery, I accept that the applicant may suffer some degree of hardship if the visa remains cancelled and I give this some weight towards not cancelling the visa.

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

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

    Whether there would be any consequential cancellations under s 140

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

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

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

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

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

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

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

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

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

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

    Any other relevant matters.

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

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

    DECISION

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

    D. Triaca
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.