SAHOTA (Migration)

[2019] AATA 3653

SAHOTA (Migration) [2019] AATA 3653 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PRINCE SAHOTA

CASE NUMBER:  1702073

HOME AFFAIRS REFERENCE(S):           BCC2017/130601

MEMBER:Wendy Banfield

DATE:28 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 May 2019 at 7:37pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – gap in studies – limited academic progress – family health concerns – damage to family reputation – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 February 2017 made by a delegate of the Minister for Immigration and Border Protection 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 had not maintained enrolment in a registered course of study as required by the conditions of his Student 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.

   Background

3. The applicant is a citizen of India and is currently 25 years old. He came to Australia in March 2014 as the holder of a subclass 573 Student Visa to study a Diploma in Information Technology leading to a Bachelor degree.

4. The applicant appeared before the Tribunal on 11 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

   Evidence of the visa applicant

5. Prior to the hearing the applicant submitted evidence in support of his application for review. This included evidence of enrolment in a Bachelor of Business starting on 4 March 2019 and ending on 1 November 2021; Diploma of Business and transcript of results awarded on 27 March 2018; written submission dated 6 March 2019.

6. The applicant had also provided evidence to the Department which the Tribunal takes into account. This evidence consisted of Affidavits by the applicant’s father dated 25 and 30 January 2017; medical evidence in relation to the applicant’s father and brother; death certificate dated 8 September 2016 and identity documents for the applicant’s relative in India; letters from Dr Yash Pal Singh, the applicant’s GP in India dated 22 March 2017; email correspondence between the applicant and UTS in 2015; academic record from UTS dated 24 November 2015; evidence of Western Union money transfers from 2016 and evidence of previous enrolments.

7. The applicant gave evidence in written statements and at the Tribunal hearing that his studies were adversely affected by a series of incidents involving himself and his family in India. Those incidents were as follows:

   ·     The applicant’s father suffered health issues that caused severe financial problems. This was supported by an Affidavit from the applicant’s father Mr Bakhshish Sahota dated 30 January 2017 and a letter from the family GP in India stating the applicant’s father required treatment for angina from 2 February to 7 March 2015.

   ·     The applicant became depressed and lost track of his studies. This claim was supported by a letter from the family GP in India dated 22 March 2017 stating the applicant had consulted with him via telephone and Skype over the previous year due to psychological stress and severe depression.

   ·     In September 2015 the applicant’s brother had an accident resulting in a fracture causing trouble for the family. A letter from the family GP in India dated 22 March 2017 refer to the applicant’s brother having fractured his right arm and requiring rest from 6 September to 25 October 2015.

   ·     In April 2016 the applicant’s family farm in India was destroyed by rain and storms resulting in the loss of income. The applicant’s father provided Affidavits dated 25 and 30 January 2017 attesting to this.

   ·     In June 2016 the applicant’s cousin who was staying with his family in India contracted an illness and passed away in August 2016. A death certificate dated 8 September 2016 had been submitted in evidence.

   ·     The applicant had to send his savings obtained from part-time work in Australia to his family in India to support them and his cousin’s treatment. The applicant provided copies of three Western Union receipts from August 2016 in evidence. He gave evidence that he had worked as a dishwasher and in a petrol station while living in Australia.

8. The Tribunal accepted the applicant had travelled to Australia for the purpose of study. Regarding a compelling need to stay in Australia, the applicant claimed he has recommenced his degree and would lose five years if he is not able to complete it. He said he had borrowed money from his sister and his family have sold some land in India to pay for his studies. He said everything is going well financially and he is feeling better.

9. The applicant claimed he and his family would suffer hardship if his visa is cancelled. The applicant declared he would have no future and would not be able to find a job. According to the applicant his family had arranged for him to meet a girl but when her family found out his visa was cancelled, the marriage did not go ahead. The applicant submitted in his written statement and at the hearing that his family is under social pressure and he has been a victim of circumstance. He said his family have been taunted due to his bad reputation, neighbours have stopped associating with them and his father’s good name has suffered. The applicant declared that while he had made mistakes, they were unintentional and he needed another chance to obtain Australian qualifications.

10. The applicant advised he had complied with all other visa conditions and there were no consequential cancellations. The applicant does not have children and Australia does not have any international obligations in the applicant’s case.

11. 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

12. 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?

13. 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).

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

15. The applicant gave evidence that he had been enrolled to study in Australia but due to personal difficulties, he had not been able to continue. He did not dispute that while holding a Student Visa, he had not been enrolled to study for the relevant period, 27 June 2016 to 17 January 2017 when a Notice of Intention to Consider Cancellation was issued by the Department. 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).

16. 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

17. 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’

    ·     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

18. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

19. During the Tribunal hearing the applicant was asked whether he considered he had a compelling need to remain in Australia. The applicant referred to having recommenced his degree and claimed he would lose five years if he is not able to complete it. He said he had borrowed money from his sister and his family to support him financially with his studies and he is feeling better. The Tribunal considered the applicant’s claims in this regard but is not persuaded the applicant needs to remain in Australia. He arrived in 2014 to undertake higher education, specifically a Diploma and Bachelor in IT but to date has only provided evidence of having completed a Diploma in Business. The Tribunal is not satisfied the applicant’s study history or current circumstances support a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia and places no weight on the applicant’s claims.

    ·     the extent of compliance with visa conditions

20. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

21. The applicant was invited to make submissions about the degree of hardship that would result from his visa being cancelled. In response the applicant claimed he would have no future and would not be able to find a job if his visa is cancelled. He claimed an arranged marriage did not proceed because of his visa cancellation and his family has suffered socially as a result. According to the applicant his family have been affected because he now has a bad reputation, their neighbours have stopped associating with them and his father’s good name has suffered. The Tribunal accepts a certain degree of hardship may result from the applicant’s visa being cancelled and gives some weight to the applicant’s claims in this regard.

22. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not 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. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

23. Condition 8202 explicitly requires primary student visa holders to maintain enrolment in a registered course. This is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a period of at least six months. The applicant gave a number of reasons for this and provided documents to support his claims. The applicant claimed his father and brother had experienced medical problems, the family finances were adversely affected by the applicant’s father’s ill health and weather conditions that damaged their farm, the applicant’s cousin passed away, the applicant had to send funds to his family to support them and as a result of these issues he suffered from depression.

24. The Tribunal sympathises with the applicant regarding his personal problems; in particular, the death of his cousin in 2016. However, based on the evidence submitted from a family GP, the medical conditions affecting his father and brother do not appear to have been serious and required only short periods of treatment and/or rest. The issue of damage to the family farm that was said to have occurred was supported only by Affidavit evidence from the applicant’s father which the Tribunal does not consider to be sufficient. In addition, if the applicant was unable to pay for his education as a result of his family being unable to support him, he should have deferred until he was able to meet the cost of his chosen study program. There is no independent evidence that he sought assistance from his education provider in this regard. Student visas are granted to enable people who are not Australian citizens or permanent residents to undertake study in Australia. They are not for the purpose of engaging in work to support one’s family.

25. The Tribunal considers the issues faced by the applicant are part of the vicissitudes of life that many people encounter at some point. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while failing to comply with the mandatory conditions of his student visa and failing to seek compassionate leave or formally postpone his studies until he was able to continue. The applicant’s evidence of having consulted the family GP in India did not disclose a detailed assessment or treatment for mental health issues and the Tribunal does not accept the applicant was unable to study for this reason.

26. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

27. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department.

    ·     whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be any consequential cancellations 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 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

29. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not 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 the cancellation

30. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

31. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

32. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

33. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.