Patel (Migration)

[2019] AATA 1715

Patel (Migration) [2019] AATA 1715 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhruv Prashant Patel

CASE NUMBER:  1811205

HOME AFFAIRS REFERENCE(S):           BCC2017/3936803

MEMBER:Brendan Darcy

DATE:29 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 May 2019 at 11:12am

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 – genuine student – substantial period of non-compliance – actions after enrolment was cancelled – taking Australia’s migration laws and regulations seriously – 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 13 April 2018 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that the applicant was not compliant with condition 8202 and that the grounds for the visa’s cancellation outweighed the grounds not to cancel the visa. 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, a citizen of the Republic of India, appeared before the Tribunal on 14 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

4. 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

5. 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?

6. 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).

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

8. The delegate’s notification of the decision record was submitted to the Tribunal as part of this review application. It indicated the applicant had been granted a Subclass 573 Higher Education Sector student visa on 13 June 2014. It also indicated that the applicant’s Provider Registration and International Students Management System (PRISMS) records stating the applicant was enrolled in a registered course of study from 16 May 2017.

9. During the hearing, the applicant explained that he enrolled in a package of course in Western Australia, including English language coursework and a diploma of Science at Edith Cowan College (ECC) and a Bachelor of Engineering (Mechanical) at ECU While he completed his English language coursework, the applicant stated he cancelled his initial enrolments in a diploma and a Bachelor in Engineering in early 2015 favour of a Diploma of Bsuiness at ECC and a Bachelor of Business with ECU. He also claimed to have completed the Diploma of Business on March 2017 and admitted that his enrolment in the Bachelor degree was cancelled on 16 March 2017.

10. There is no evidence that the applicant further enrolled in any further coursework after 16 March 2017.

11. The Department validly issued a Notice of Intention to Consider Cancellation letter on 31 January 2018; and to respond to it in writing within five (5) working days. However the applicant did not respond to the NOICC at all.

12. A delegate on the Minister’s behalf proceeded to cancel the student visa on 13 April 2018. On 19 April 2018, the applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal.

13. During the scheduled hearing, the applicant did not dispute that that he had not been compliant with condition 8202.

14. Based on the available evidence, the Tribunal finds that the applicant had not been enrolled in a registered course of study commensurate with his Subclass 573 visa between 16 May 2017 and the date of cancellation on 13 April 2018 – a period of about (11) months.

15. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2). 

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

16. 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’.

17. On 8 May 2019, the applicant submitted copies of three hand-written medical certificates from a medical profession in Ahmedabad in Gujarat indicating the applicant had fever, nausea and abdominal pain on 28 March 2017; severe arthralgia and chikunygya (written as chicken conya) on 10 November 2017; and that on 15 February 2018 he was able to resume normal activities.

18. On the day of the scheduled hearing, the Tribunal received the following documents:

    ·A  page and quarter statement in the first person by the applicant outlining the reasons his visa should be reinstated, including due to ‘severe health conditions arising from arthralgia, that he wanted to complete a Business degree in Australia to enhance his registered business; and that he would be most humiliated if the visa remains cancelled;

    ·A deferral application to ECU and correspondence variously dated 8 March 2017, 10 March 2017,13 March 2017  indicating the education provider request a boarding pass;

    ·A copy of the applicant’s Indian tax return for 2016-2017 with attachment indicating the applicant earned income from an Indian business entity called ‘Shaivi Infrastructure’;

    ·A copy of the applicant’s valid Indian passport with entry and departure stamps;

    ·A copy of the applicant’s boarding passes from 23 March 2017 from Brisbane to Singapore and from Singapore to Ahmedabad;

    ·Flight confirmation for the applicant to travel from Melbourne to Colombo to Ahmedabad on 3 November 2017; and

    ·Flight booking for the applicant to travel from Melbourne to Denpasar to Kuala Lumpur to Kochi to Ahmedabad for February 2018.

    The purpose of the visa holder’s travel to and stay in Australia

19. The fact remains that the purpose of this visa under review is for full time study in a Bachelor or Master’s degree and that applicant’s enrolment in an enrolled course for higher education was over an eleven month period.

20. During the hearing, the applicant he completed he began science/engineering related courses and changed to business related. The applicant explained that that he would find the business related course work which included a Bachelor degree relevant to the jointly own business with his father (whom he claimed to be an engineer) back in India which he described as a construction business. The Tribunal enquired whether an engineering course might be more relevant. The applicant insisted he wanted to better understand the commercial and managerial aspects of a construction business. In this regard, the Tribunal notes the applicant provided some evidence in the form of a tax return to support his claims about co-owing a business.  It is also accepted that the applicant completed a diploma in business, as claimed.

21. On balance, the Tribunal accepts the review applicant is genuinely motivated to complete a degree in business that is relevant to his family business back in India.

22. With no evidence to the contrary, the applicant has sufficiently demonstrated to the Tribunal that he is genuinely motivated to complete a Bachelor degree relevant to his family businesses back in his country of origin.  Accordingly, the Tribunal gives these considerations notable weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

23. During the scheduled hearing, the applicant claimed that he had not breached any further conditions on his visa and that his family continued to support him financially while he has not been studying. There is no strong evidence that the applicant has not been non-complaint with the other conditions imposed on him as a visa holder.  It places some weight on this in favour of the applicant.

24. Nonetheless the applicant has not been compliance with condition 8202 for more than 11 months. This is assessed by the Tribunal to be a considerable amount of time. While the Tribunal accepts there is evidence the applicant has sought a deferment in early March 2017 before his enrolment was cancelled, the applicant admitted that he did not provide the additional documents to the education provider which they sought. Furthermore, while it is accepted the applicant attempted to meaningfully mitigate the non-compliance by seeking to enrol with another provider, he did not seriously consider attempt to re-erol with ECU or complete six months of his ECU Bachelor in order to gain a release letter. As it is the applicant’s responsibilities to address these difficulties with his education provider, should they arise, or to seek alternative ways of remaining compliant, the Tribunal has placed a substantial amount of weight on both the length of time of his non-compliance with condition 8202 and the lack of meaningful action to avoid or mitigate that non-compliance towards the visa remaining cancelled.

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

25. During the scheduled hearing, the applicant stated that his parents have given him considerable money for his tuition in Australia and it will be hard for them to accept he has to return to India. The applicant elaborated that his parents wanted him be in Australia because they visited here in 2010 and saw how much progress their nephews had been making in Australia. He claimed that he has not informed them about the cancellation as it would be shameful for him and the society back home will not be kind toward him and his family. People in his society that the applicant has wasted his family’s money and it would be a hard situation to face. As discussed in the Tribunal, it appears the applicant is close to his father as his also a business partner with them and that this might indicate that the degree of disappointment or shame will not be great or long lasting. The applicant had also admitted that in not telling his parents about the cancellation of his enrolment and visa that he had been accepting tuition fees from his parents. The Tribunal enquired whether the applicant felt he was taking money under false pretences. The applicant insisted he was saving the tuition fees.

26. The Tribunal enquired whether the applicant could return to India or travel to another country to complete his studies. The applicant responded that his parents feared terrorism in the United States and that Canada was too cold. He added that he would have to gain permission from his parents for any further studies and feared that it would not be permitted.  While the Tribunal places no weight on the stated reasons for not studying in North America, the Tribunal does generally accept any further studies would involve consultation and/or approval from his parents, as claimed.

27. Overall it is accepted the applicant (and his family) will experience some disappointment and emotional hardship and that the applicant may not receive any further support for tertiary studies from his parents, if this visa remained cancelled. However the applicant belongs to a supportive family and the Tribunal assesses any emotional hardship or some financial reckoning arising from spent and/or unspent tuition fees will not be experienced on any long period of time. For these reasons, the Tribunal finds that the hardship arising from his visa remaining cancelled will not be severe or significant or even notable in degree. When cumulatively considering these hardships, the Tribunal gives them some but not a considerable amount of weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

28. The fact remains that the applicant was not enrolled since 16 March 2017 until the date of cancellation which the Tribunal assesses to be a considerable amount of time.

29. During the scheduled hearing, the applicant elaborated that he was required to travel to India in early 2017 due to a medical examination and because of pain in his knee joints arising from a diagnosis of arthralgia. He provided credible medical evidence to support this. 

30. The applicant requested for a deferment with ECU on 13 March 2017. However this request was not granted. As the submitted evidence indicated the applicant did not provide adequate travel documents for the request to be granted.  The education provider soon proceeded to cancel his enrolment in the same month. He claimed that he provided further documents, including medical documents, to be re-enrolled.  When the applicant applied to a new education provider (Kingdom Institute) for a Bachelor’s degree, the offer was refused as the applicant had not completed six months of his Bachelor’s degree with ECU.  HE then claimed that his health problems exacerbated again after he moved to Melbourne in later half of 2017.

31. The Tribunal further enquired into the reasons the applicant did not re-enrol with ECU and seek to complete the six months with the ECU and then change education providers. The applicant claimed that had been admitted into hospital. The applicant claimed the admission to hospital for four days in May 2017 – after the enrolment was cancelled in March of the same year.  Given the timing, this response is not considered by the Tribunal as convincing or adequate.

32. While noting the applicant has provided any documents to support this, such as a private health provider receipt or a hospital admission/release letter or even a statement of services, it accepts the applicant was hospitalised as claimed. However this specific circumstance does not adequately explain to the Tribunal the reasons the applicant did not complete at least six months of his bachelor degree when he had the opportunity.

33. The Tribunal also discussed the nature of the applicant’s physical health problems. He said that suffers from arthralgia and chikunygya which includes symptoms of fever and swelling joints and other symptoms. The applicant acknowledged his extensive travel and admitted that he has general mobility despite ongoing joint pain during this period.  The Tribunal accepts the applicant has the claimed ongoing medical problems which are supported by the submitted medical evidence. As discussed in the hearing, the nature of this problem, in combination with his short hospitalisation, does not indicate to the Tribunal that there were any significant barriers to the applicant in continuing to carry out his studies or remain being enrolled or seeking to be re-enrolled during the period of his non-compliance with condition 8202.

34. The Tribunal acknowledges the applicant did make a genuine effort to defer his studies before the cancellation of his enrolment in March 2017. However, it is not accepted that he did make an attempt to re-enrol with the same provider. These actions further consolidate the Tribunal’s view that the applicant had knowledge of the importance of maintaining his enrolment. It is the lack of any further meaningful action, when it was open to him, after the enrolment was cancelled, that has strongly invited the Tribunal to consider that the applicant has not taken condition 8202 more seriously as student visa holder.

35. Noting that the applicant does not claim any severe or significant psychological or familial reasons for his non-compliance with condition 8202 as extenuating circumstances, the Tribunal finds that the applicant did not have any extenuating or exceptional circumstances, medical or otherwise claimed, beyond his control that led to the grounds for the cancellation existing.  Accordingly, the Tribunal gives the applicant’s circumstances no weight towards this student visa under review in not being cancelled.

36. Given the Tribunal does not accept there were no extenuating circumstances beyond the applicant’s control that led to the grounds for cancellation existing, the Tribunal makes a further finding that the applicant has not taken seriously the condition imposed on this student visa under review.

    Past and present conduct of the visa holder towards the Department

37. The applicant did not respond to the invitation to respond to the validly issued NOICC. The applicant stated that he was in India at the time of the issuing of the NOICC and he did not receive it. The Tribunal pointed out that the applicant had been emailed, as well as posted, a copy of the NOICC. The applicant stated he only knew about the NOICC when the visa was cancelled. The Tribunal finds this answer to be inadequate. The applicant was issued with a NOICC in January 2018 and his visa was cancelled in April of the same year. He had more than an adequate amount of time to check the email account he nominated to communicate with the Department. Furthermore the applicant returned to Australia on 14 March 2018 and had adequate time to read the posted version of the NOICC. There is no indication the posted NOICC was returned to the Department on the departmental file.  The Tribunal does not accept the applicant did not have the opportunity to respond to the validly issued NOICC as claimed.  The Tribunal gives this lack of responsiveness towards the Department some weight in favour of the visa remaining cancelled.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

38. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

39. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained.

40. The applicant responded to this information by stating generally he cannot handle it if he returned to his country and he could not go home. There is no medical or psychological evidence to suggest to the Tribunal the applicant has any severe or significant mental health symptoms. Accordingly the Tribunal places not weight on the applicant’s claim that ‘he could not handle’ the mandatory legal consequences arising from this visa remaining cancelled.

1. Relatedly it is noted that the applicant claimed in a written statement that he have spent four years in Australia as a criminal where he has no right to study or to return to India to visit his parents. There is no evidence before the Tribunal that the applicant has breach any criminal or other laws of Australia. The applicant should be aware he was not kept in Australia for a year. As a student visa holder, the evidence before the Tribunal has been the applicant has been free to depart and return to Australia right up to the date of his visa was cancelled. As a bridging visa holder it was open to him to apply for study rights. However he did not. The Australian authorities have not prevented the applicant from departing Australia at any stage.  Even if this visa is cancelled, the applicant can return in a minimum of three years.

2. In having regard to the above, the applicant has failed to demonstrate any notable or significant hardship arising from the mandatory legal consequences arising from this visa being cancelled. Accordingly the Tribunal gives these considerations little weight towards the visa not remaining cancelled.

   Whether there would be consequential cancellations under s.140

3. As the applicant has no dependants, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Whether any international obligations would be breached as a result of the cancellation

4. No claim during the schedule hearing was advanced that the applicant has any fears from the government or some other actor if he were to return to the Republic of India. He did mention that he feared generalised violence in India. Noting the applicant has not applied for a protection visa, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Any other relevant considerations

5. The Tribunal has considered the applicant’s relative immaturity as a 24 year old. It is not unusual for young adults at such an age to make poor decisions and take risks, including with their migration status, especially when there is some distance from parental supervision for the first time in their lives. The Tribunal finds this is a factor in the applicant’s non-compliance but not one with extenuating circumstances.  Nonetheless, it places a little weight in favour of the applicant’s visa not being cancelled.

6. There are no further relevant considerations in this review application.

   Conclusion

7. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

8. Overall the applicant has failed to demonstrate any extenuating circumstances beyond the applicant’s control that led to the cancellation of the visa or any notable or significant degree of hardship to be faced if the visa remains cancelled. While the Tribunal finds the applicant to be a genuine student, the fact remains he was considerably non-compliant with condition 8202 which is a very serious matter. In this regard, the Tribunal has concluded that the applicants have not taken seriously Australia’s migration laws and regulations and it has placed much emphasis on this finding.

9. In this decision, a range of unfavourable factors, cumulatively considered, are found to have notably outweighed those countervailing favourable factors towards not cancelling the applicant’s student visa.

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

    DECISION

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

    Brendan Darcy
    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.