SABHARWAL (Migration)

[2020] AATA 2125

SABHARWAL (Migration) [2020] AATA 2125 (18 February 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr ANMOLPREET SINGH SABHARWAL

CASE NUMBER:  1823522

DIBP REFERENCE(S):  BCC2018/1296603

MEMBER:  Peter Newton

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 February 2020 at 12:20 pm (NSW time)

DATE OF WRITTEN RECORD:                15 April 2020

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

Statement made on 15 April 2020 at 4:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – not enrolled in registered course – study, accommodation and personal difficulties – mental health – money sent by parents for tuition fees used for other purposes – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA, 376
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 August 2018 to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa under the Migration Act 1958 (Act).

2. At the hearing on 18 February 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

   1. The delegate cancelled the applicant’s visa on the basis that in breach of condition 8202(a) of schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) the applicant was not enrolled in a registered course of study since 3 October 2017.

   2. The applicant appeared before the tribunal on 18 February 2020 to give evidence and present arguments. The applicant was assisted by an interpreter in the Punjabi and English language and interpreted questions I asked and answers in evidence given by the applicant. The applicant was also able to clearly answer questions in English and read a document provided to him written in English. The applicant accepted that he was not enrolled in a registered course of study from 3 October 2017 up to 17 July 2018 when he acknowledged receipt of a notice of intention to consider cancellation of his visa from the Department of Immigration.

   CONSIDERATION OF CLAIMS IN EVIDENCE
   Did the applicant comply with condition 8202?

   3. As the applicant accepts, he was not enrolled in a registered course of study from 3 October 2017 to 17 July 2018 when the notification of intention to consider cancellation of the visa was issued, the ground for cancellation of the visa has been established.

   4. Condition 8202, as it applies in this case, relevantly, requires the applicant:

   a.    to be enrolled in a registered course, or in limited cases, a full-time course of study or training: 8202(2);

   b.    has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and

   c.     has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3) (b).

   5. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course of study since 2 October 2017. As indicated, the applicant accepts that he was not enrolled in a registered course of study from 3 October 2017. Accordingly, the applicant has not complied with condition 8202(2). That is, I am satisfied the applicant breached condition 8202 of schedule 8 to the Regulations. Accordingly, under section 116(1) of the Act, the visa may be cancelled.

   CONSIDERATON OF THE DISCRETION TO CANCEL THE VISA

   6. As the applicant has not complied with the conditions 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

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applicant and matters in the Department’s Procedures Advice Manual (PAN3) “General Visa Cancellation Power”.

1. I have considered all of the information contained in the Department’s files and the Tribunal’s files. I have also considered all of the evidence provided by the applicant at the hearing on 18 February 2018. The Tribunal’s file contains a certificates and notification regarding Administrative Appeals Tribunal’s discretion to disclose certain information under section 376 of the Act. The Tribunal has been given a document or information and has been notified that section 376 applies in relation to that document and information. I advised the applicant of this. I formed the view not to have regard to the document or information to which the certificate under section 376 has been given. I have not taken into account that document or information in determining this application. I informed the applicant of this. I provided to the applicant a copy of the certificate under section 376 of the Act. The applicant read it. I invited the applicant to comment on the certificate. He declined to do so.

2. The file of the Tribunal contains a document from the Provider Registration and International Student Management System (PRISMS) administered by the Department of Education and Training dated 3 December 2019. I have read the information contained in that document. During the hearing and in accordance with section 359AA of the Act, I put to the applicant particulars of information in the document from PRISMS that I considered would be the reason, or a part of the reason, for affirming the decision under review. During the hearing, I invited the applicant to comment on or respond to the information I provided to the applicant from the document from PRISMS, and I advised the applicant that he may seek additional time to comment on or respond to the information, and if he sought additional time to comment on or respond to the

information, that I should adjourn the review if I considered the applicant reasonably needs additional time to comment on or respond to the information. The applicant responded to the information provided to him from the document provided from PRISMS and did not seek additional time to comment on or respond to the information.

1. By reference to the following factors, the evidence and submissions set out below is relevant to my determination.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to and remain in Australia

10.  The applicant’s student (Temporary) (class TU) vocational education and training sector subclass 572 visa was granted on 5 October 2015. On 9 October 2015, the applicant first arrived in Australia. He says he came to Australia to study a Certificate IV in Business leading to a Diploma of Business Management. The applicant was enrolled in a Certificate IV in Business, which was cancelled for unsatisfactory course progress. During the hearing, the applicant said that he commenced studying the Certificate IV in Business course. The applicant said that when he first came to Australia he was living in Harris Park. The college at which he commenced studying the Certificate IV in Business was near Rosehill at Camellia.

11.  The applicant says that he was evicted from the premises he was living at in Harris Park and moved to premises in Penrith. He says that he could not continue studying the Certificate IV Business course at Camellia because it was too far away. He said he had informed the course provider of this. He indicated that on his days of study he was studying seven to eight hours per day at college, commencing at about 10 am and concluding at about 4.30 pm. The applicant indicated that when he told the course provider of difficulties in travelling a distance to his course of study, the course provider indicated that they could change the study to night from 4 pm to 10 pm. The applicant

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said he did not wish to travel at night and ceased attending studies for the Certificate IV in Business. The applicant said that the course provider indicated that it would refund his fees for that course but it did not do so.

12. During the hearing, the applicant said that he was enrolled in an Advanced Diploma of Hospitality and Management course. The information provided by PRISMS indicates or records that that course was cancelled for non-payment of fees. The applicant says that his parents sent him fees from India to Australia to pay tuition fees for the Advanced Diploma of Hospitality and Management course. The applicant says that at the time he was in love with a girl in India, and rather than spend the money provided by his parents for tuition fees, he sent the money to the girl in India. The applicant says that he thereafter became depressed. During the hearing, the applicant said that he was unable to pay the fees for the Advanced Diploma of Hospitality and Management course because, contrary to his parents’ express wishes, he used the money provided by them not for the payment of fees but to give to a girl he was in love with in India. In a letter from the applicant to the Department of Immigration dated 7 August 2018, the applicant stated:

“I came to Australia in October 2015 to study Certificate IV in Business Management, leading to Diploma and Advanced Diploma of Business Management. My father suffered a hugh (sic) financial loss in 2016. Due to that, I went through depression. During that time, I came into contact with a girl who was a good support and helped me come out of depression. I always wanted to start a family with her but she has denied and broken up with me in June 2017. I couldn’t control my emotions and once again went into the depression.

I became alcoholic and my parents and friends were worried too much. I also started gambling heavily. My friend suggested me to go back to India, hence I had called my parents to inform them about it. I travelled back in August 2017 for three weeks. My father gave me good support and asked me to study and achieve overseas education, as I have opportunity to study in Australia. Hence, returned to Australia but couldn’t concentrate.

Due to my gambling and too much alcoholic addiction, my landlord kicked me out from home in beginning of May 2018. I came across a person called Sunny (Amarpreet Singh) who gave me a good advice and allowed me to stay with him as a paying guest. I met him at a Sikh temple “Gurudwara” in Sydney. I decided to travel back to India again in July 2018. I spoke to my father about it and he has asked me not to travel India and complete the course in Australia. I cancelled my air tickets and travel plan... I have decided to complete my education and make my parents proud as they have sacrificed financially for me and supported me throughout.”

13. The Department’s file also contains a handwritten letter with the signature for Amarpreet Singh, stating or indicating that Mr Singh met the applicant at a place of worship, the applicant looked “really low, depressed, vulnerable”, and the applicant had been staying in his house, even though he does not pay rent. The letter states:

“I know he is going through hard time, to me he’s a good boy who respects and has got potential, so I’ve been supporting him.”

14. The visa was granted to the applicant for the purpose of study. The evidence of the applicant given today was that he ceased attending the Certificate IV in Business course because he moved to Penrith and he found the travel too far. He accepts that he was

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enrolled in an Advanced Diploma of Hospital and Management course and his parents had sent him money to meet the course fees. Rather than paying or using the moneys provided by his parents to pay for the course fees, he sent the monies to a girl in India who he was in love with. He did not commence studying the Advanced Diploma of Hospitality and Management course. There is no evidence that he contacted his education provider to seek a deferral of that course. A genuine student would, in my view, use money provided by his parents for tuition fees for precisely that purpose.

1. A genuine student would, in my view, if he did not have money to meet tuition fees, inform the education provider of this and his personal circumstances and seek to defer the course. He did not do this. Since first arriving in Australia on 5 October 2015, the applicant has not completed any course of study. The applicant acknowledged that he received the notification of intention to cancel the visa from the Department of Immigration on or about 17 July 2018. Upon receipt of the notice of intention to consider cancellation of the visa, he enrolled in a Certificate IV in Marketing and Communication course and a Diploma of Marketing and Communication course. He said he did not commence studying these courses because his visa was cancelled. The evidence establishes that the applicant was not enrolled in a registered course of study from 3 October 2017, was aware that he was not enrolled in a registered course of study, and did not take any step to enrol in a registered course of study until after he received the notice of intention to cancel the visa.

2. I do not consider that these are the actions of a person who genuinely wishes to pursue education. I am not satisfied that the applicant is a genuine student and has a compelling need to remain in Australia for the purpose of study. The applicant said that if this application is successful, and the decision of the Department is set aside, he wants to pursue studies in Melbourne studying “some trade course like automotive”. He says that he has made some enquiries in relation to available courses. He says that there is an automotive course available in Melbourne. I have had regard to that evidence. The applicant provided no information about that course or the education provider other than his evidence that he wanted to study “some trade course like automotive”.

3. In my view, a genuine student wishing to pursue a course of study would be in a position to provide information about a proposed course, including the education provider, course details and syllabus and location. The applicant has provided no evidence that he has arranged for any accommodation in Melbourne. There is no evidence that the applicant has previously travelled or resided in Melbourne. To the contrary, the evidence provided to the Department indicates that he is residing with a friend in Penrith and is not paying rent. Overall, I do not consider that the applicant is a genuine student and has a compelling need to remain in Australia. I give this factor significant weight.

The extent of compliance with visa conditions

1. The applicant did not maintain enrolment in a registered course of study from 3 October 2017 until sometime after receiving the notification of intention to consider cancellation of the visa from the Department of Immigration, which prompted him to enrol in a Certificate IV in Marketing and Communication course commencing on 27 August 2018. The applicant has not completed any course of study since first arriving in Australia. I consider the extent of the applicant’s non-compliance with condition 8202 to be significant. There is no other information before me to suggest he has not complied with any other conditions attached to the visa. I give this consideration little weight in his favour.

2. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal

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under section 198 of the Act if he does not voluntarily depart from Australia. Additionally, the applicant will be subject to section 48 of the Act which means that he will have limited options to apply for further visas in Australia. He will also be subject to public interest criterion 4013.

20.  The applicant provided to the Department of Immigration a letter dated 7 August 2018 stating that he has suffered from depression and alcoholism. The applicant has provided to the Tribunal a medical certificate from the Mandalay Family Clinic, Hoppers Crossing, completed 9 December 2019 and a letter or report from the Mandalay Family Clinic - Hopper Crossing to Werribee Mercy Hospital dated 9 December 2019. This medical certificate and report was provided in support of an application to adjourn a hearing initially fixed for 10 December 2019. That application was accepted and the hearing was postponed to today. The report from the Mandalay Family Clinic, Hoppers Crossing to Werribee Mercy Hospital dated 9 December 2019 states that:

“. . .

He admitted that he has previous history of depression and high blood sugar... he has not been prescribed anti-depressant...

He denied recreational drug use but had history of binge drinking, as he could

not sleep well.

. . .”

21.  There is no evidence that the applicant is suffering ongoing depression. I accept that the cancellation of the applicant’s visa will cause anxiety, stress and disappointment to the applicant. However, I must balance this against the fact that he has been in Australia since 5 October 2015, when he was in financial difficulties his parents provided him with money to pay for tuition fees and he did not use that money to pay for tuition fees, but sent it to a girl in India that the applicant says at the time he was in love with. The applicant has had every opportunity to study in Australia and has not done so. Nevertheless, the Tribunal accepts that there may be some hardship to the applicant if it affirms the delegate’s decision to cancel the visa and gives this some weight in the applicant’s favour when considering whether the applicant’s visa should be cancelled.

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence

22.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the grand of cancellation arose were beyond the visa holder’s control. I have set out under the heading, ‘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,’ the circumstances in which the ground of cancellation arose. The breakdown in whatever relationship the applicant had with the girl in India that he says he was in love with was not as a result of family violence. There is no evidence that indicates that the ground for cancellation arose was beyond the visa holder’s control. As stated, his parents provided him with money to pay for tuition fees but he did not use the moneys for that purpose. That was his choice. He was in control of that. I give some but little weight in the applicant’s favour to his statement that a cause or contribution to his failure to continue with studies was due to alcoholism and depression.

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Past and present behaviour of the visa holder towards the Department

23.  There is no evidence that the applicant has been uncooperative towards the Department. I give this consideration little weight in the applicant’s favour.

Whether there were persons in Australia who visas will be, or may be, cancelled under section 140 of the Act

24.  There is no evidence that if the applicant’s visa is cancelled under section 116 of the Act, a visa held by another person, because of being a member of the family unit of the applicant, will also be cancelled. Accordingly, I am unable to place weight on this consideration.

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

25.  The Tribunal accepts there may be some hardship to the applicant if his visa is cancelled and gives some but little weight to this when considering whether the applicant’s visa should be cancelled.

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

26.  There is no information before me to indicate that the circumstances of this case are such that would engage Australia’s international obligations. I am unable to place weight on this consideration.

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

27.  This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

Any other relevant matters

28.  I am not aware of any other relevant matter in relation to the tribunal’s consideration of whether the visa should be cancelled.

Conclusion

29.  Considering the circumstances as a whole, and having regard to all of the evidence given by the applicant, the Tribunal concludes that the visa should be cancelled.

DECISION

30.  The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (class TU) Vocational Education and Training Sector subclass 572 visa.

Peter Newton
Member

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