Pawanjot Singh (Migration)

[2019] AATA 4828

Pawanjot Singh (Migration) [2019] AATA 4828 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pawanjot Singh

CASE NUMBER:  1828080

HOME AFFAIRS REFERENCE(S):     BCC2018/1599982

MEMBERS:Dr Jason Harkess

DATE:15 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 15 July 2019 at 2:15pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – Bachelor of Business – not enrolled in registered course for nine months – death in family – emotional issues – financial difficulties – non-payment of fees – failed to take positive action to remedy situation – chose to work – lack of evidence – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000
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. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 21 September 2018 cancelling his 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 2014 with an original expiry date of 15 March 2019, providing for than four years and eight months 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 his stay in Australia. Specifically the Applicant was to enrol in and successfully complete Certificate IV in Frontline Management, Diploma in Management, Advanced Diploma in Business/Management and a Bachelor of Business. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him 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 15 July 2019 to give evidence and present arguments. He was assisted by his registered migration agent, Mr Ajay Bansal.

6. The Tribunal was assisted by an interpreter in the Punjabi and English languages. However, the Tribunal notes that the hearing was largely conducted without the interpreter’s assistance due to the Applicant’s proficiency in speaking English.

7. 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

2. 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 9 November 2017 to 8 August 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to 9 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, Acknowledge Education (also known as ‘Stott’s Colleges’), had cancelled his enrolment on 9 November 2017 due to the non-payment of fees. At the date of the delegate’s decision, the Applicant had not been enrolled in any registered course of study since 9 November 2017.

4. The Department of Home Affairs wrote to the Applicant on 3 August 2018, notifying him of its intention to consider cancelling his 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 his visa.

5. The Applicant responded to the NOICC on 17 August 2018 (‘the NOICC response’). In that response, he implicitly conceded that he was in breach of his visa as had been alleged by the delegate. In his evidence before the Tribunal on 15 July 2019, the Applicant also admitted that he had been in breach of his student visa for the period alleged.

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 him to study and successfully complete what is commonly referred to as an education ‘package’ for international students. He was to commence with a Certificate IV, following which he would study a Diploma, then an Advanced Diploma, and finally a Bachelor of Business. The Tribunal notes that it was principally the higher level Bachelor’s course that attracted the grant of the Subclass 573 student visa.

3. The Applicant’s evidence given at the hearing was largely consistent with the information contained in his NOICC response. In that regard, the Tribunal generally accepts the Applicant’s account of his history in Australia since arriving to study in the second half of 2014. The Applicant commenced and successfully completed the Certificate IV in Frontline Management at Academies Australasia Polytechnic (‘AAPoly’) as originally planned. That Certificate IV qualification was issued on 19 February 2015. However, as the Applicant then stated, after starting the Diploma course, students were informed that the course provider for the Bachelor’s degree, the University of Canberra (with whom AAPoly had an arrangement in place), were no longer offering the Bachelor’s course to AAPoly’s students. The Applicant was notified of this particular issue halfway through the semester.

4. Administration staff at AAPoly informed the Applicant, along with other students, that they could instead enrol for an equivalent Bachelor’s course at Federation University or change their course altogether. The Applicant stated that he opted for complete release from the package course. He left AAPoly in about July 2015 having only successfully obtained the Certificate IV in Frontline Management.

5. The Applicant then enrolled in another education package at Stott’s Colleges which included a Certificate III in Commercial Cookery, Certificate IV in commercial Cookery, Diploma of Hospitality and Bachelor of Business. He commenced the Certificate III and IV courses in cookery and it appears, from the evidence provided, that the Applicant effectively completed these courses. However, due to an issue relating to non-payment of fees arising with Stott’s Colleges, the Applicant was unable to produce copies of the actual certificates awarded. He was only able to produce a statement of attainment which, the Tribunal accepts, shows that he completed virtually all the course requirements.

6. In October 2016, the Applicant’s cousin died suddenly while the cousin was in Cyprus. It appears this had a significant impact on the Applicant. The Applicant stated in evidence that he was close to his cousin, who was about the same age as the Applicant. The Applicant returned to India in December where he remained for approximately one month. The Applicant stated that his return to India was due principally to deal with family situation that had arisen from his cousin’s sudden death.

7. The Applicant stated, which was reinforced in submissions by Mr Bansal, that the death of the Applicant’s cousin was the first of several factors that ultimately led to the Applicant formally ceasing his studies in November 2017. The Applicant stated that he was psychologically stressed from the pressure of his studies. He also referred to the stress that arose from his brother being refused a student visa. The Applicant stated said that he stopped attending classes in about October 2017. He stated that he was heartbroken and depressed when Stott’s College cancelled his enrolment on 9 November 2017.

8. In the course of the hearing, the Tribunal drew the Applicant’s attention to the fact that Stott’s College had cancelled his enrolment due to the non-payment of fees. The Tribunal inquired of the Applicant as to whether his financial situation was the issue, rather than stress, that led to his enrolment being terminated. The Applicant admitted that he was not in a financial position to pay for his fees at that time. The Applicant also stated that, as at the date of the hearing before the Tribunal, he owes Stott’s Colleges approximately $5,000 in unpaid fees.

9. The Tribunal inquired of the Applicant as to whether he sought any professional help for his depression and stress during this difficult period in his life. The Applicant stated that he did not. The Applicant also stated that, during the period of his continuous breach of his visa, he continue to work 20 hours per week as chef.

10. While the Tribunal accepts the Applicant’s evidence as a truthful account of his history of studies in Australia, it does not accept this evidence as providing a foundation for a satisfactory explanation for his decision to cease his studies altogether and breach his visa. Many student visa holders are forced to contend with personal difficulties during their stay in Australia, including the deaths of loved-ones and other family difficulties. 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.

11. 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 9 months he remained unenrolled in any registered course of study. He made no attempts to contact the Department of Home Affairs about his personal situation.

12. Beyond the Applicant’s assertions as to how he was feeling during this time, there is no independent evidence demonstrating that the Applicant was suffering a diagnosable chronic mental health condition. In these circumstances, the Tribunal has formed the view that the Applicant’s personal suffering arising from his family situation in India falls into the category of ordinary mental difficulties that people generally suffer on a daily basis in dealing with life’s stressors. In the end, the Applicant’s explanation of the situation effectively amounts to a statement that he was unable to deal with his personal problems while, at the same time, maintaining his legal obligation to comply with an essential condition of his student visa. He chose not to comply with an essential visa condition.

13. 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. His failure to do anything in this regard resulted in an ongoing breach of his visa. The Tribunal also notes that, while the Applicant failed to take positive action in relation to remedy the situation with respect to his continuing study obligations, he found the time to do other things while he remained in Australia. In particular, he chose to work. And so, it would seem, he continued to reap the benefits of relatively high wages that Australia’s economy yields. He chose not to study and, in doing so, he was not acting in a manner that was consistent with the fundamental purpose for which his visa was granted.

14. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification in the nature of a Bachelor’s degree. He has expended time and financial resources in his time in Australia so far. The Tribunal accepts his evidence that he highly values the opportunity to obtain an Australian Bachelor’s qualification and that his family will be disappointed if he does not return with a Bachelor’s degree. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he has been here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition continuously for 9 months.

15. 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.

16. 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 he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a 3 year exclusion period where he will not be eligible to have any temporary visa application approved if he 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.

17. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow his to make arrangements for his to depart Australia. He 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 his departure from Australia. Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

18. 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