SANDHU (Migration)

[2019] AATA 619

SANDHU (Migration) [2019] AATA 619 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DAYABIR SINGH SANDHU

CASE NUMBER:  1700425

HOME AFFAIRS REFERENCE(S):           BCC2016/3904043

MEMBER:Mr S Norman

DATE:27 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2019 at 4:52pm

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 – past record of enrolment – lack of academic progression – purpose of staying in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

CASES
COT15 v MIBP (No. 1) [2015] FCAFC

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 January 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). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was determined to have breached condition 8202(2) – enrolment. 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 27 February 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 9 July 2014. That visa was to expire on 15 March 2018. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 15 December 2016, the applicant was advised that based on the evidence on the Provider Registration and International Student Management System (PRISMS), it appeared he had not been enrolled in a registered course of study since 31 March 2016. Therefore it appeared the applicant had not met the requirement in condition 8202(2)(a); and that his Student visa may be cancelled pursuant to s.116(1)(b) of the Act.

8. In his response to the NOICC, the applicant did not dispute there were grounds to cancel his Student visa. At hearing, and when discussed, the applicant also did not dispute there were grounds to cancel his Student visa.

9. 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)(a).  

   Consideration of the discretion to cancel the visa

10. 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’.

11. Regarding the purpose of the applicant’s travel to and stay in Australia, he said he wished to study at the higher education level. However, the applicant arrived in Australia in August 2014 and departed on 29 December 2014 (due to his mother being unwell – discussed below). The applicant’s enrolment in English Language Programs for International Students was cancelled on 3 November 2014. Subsequently, his enrolment in a Diploma of Information Technology and a Bachelor of Information Technology were also cancelled.

12. The applicant then returned to Australia on 18 February 2015.  He was said to have enrolled in a registered course of study on 9 November 2015. At that time he commenced a Certificate IV in Business. However on 31 March 2016 this enrolment was cancelled due to non-payment of fees and he had not been enrolled in a registered course of study since that time (at least not prior to the NOICC being issued).

13. Further, in their decision the delegate noted the last recorded attendance by the applicant was on 17 November 2015 when he attended approximately eight days of study. Therefore, since arriving in Australia on 8 August 2014, the applicant had attended only (approximately) five weeks of study at the time of the delegate’s decision. At hearing, the applicant appeared to say he had attended a ‘few months’ of classes since his arrival in Australia in August 2014. When the inconsistency between ‘five weeks of study’ and a ‘few months of study’ was put to him at hearing, he did not materially dispute the delegate’s calculation. 

14. Next, at hearing the Tribunal noted that based on the evidence, it did not appear he had completed any course of study since arriving in Australia. The applicant did not dispute this.

15. Therefore, and based on all the accepted evidence and findings herein, even if the applicant’s initial intention for travel to and stay in Australia was for the purposes of study, I am not satisfied his present intention is to remain in Australia for the purposes of study.

16. Next, and regarding the extent of compliance with visa conditions, the applicant had not been enrolled in a registered course of study for many months, and until after the NOICC was issued. The applicant had said he was in the process of obtaining an enrolment when he received the NOICC. At hearing, and when then asked if he had materially attended or completed any registered courses in Australia, even after the NOICC was issued, the applicant conceded he had not. The Tribunal believes the breach of the applicant’s Student visa condition has been significant.

17. Regarding the degree of hardship that may be suffered by the Indian applicant or his family if his visa was cancelled, he said he wished to complete a Bachelor’s degree in Australia; and that there were better opportunities available to him in Australia. He also said that his parents wished for him to study in Australia, and that his elder sister had also obtained study/work outside India (she is a physiotherapist, who had studied in India and had undertaken conversion courses in Canada where she now lived and worked).

18. The applicant also said that his parents are farmers from the Punjab (India), and they do not make sufficient monies to substantially assist him. When then asked how he was proposing to pay for his ongoing education in Australia (given a prior enrolment was cancelled due to non-payment of fees), he said his elder sister, who supports herself and her younger brother (who is studying in Canada), would provide some funds; second, that his parents would provide some funds; and third, that he would work to provide some funds. However, and as noted herein, the applicant has undertaken very little course work after arriving in Australia, and he had not completed any course since arriving in Australia.

19. That being said, the Tribunal accepts the applicant said he wished to complete his studies in Australia; where he said he would receive a better education, and where he also said he had more opportunities than India. However, the Tribunal noted the country information indicated that education should be available to him in India,[1] and that the applicant admitted at hearing that his elder sister (27 years old) had studied a Bachelors degree in India (related to Physiotherapy), so the Tribunal is satisfied the applicant could continue his studies in India. The Tribunal also notes that (ie) India has a fast growing economy,[2] and nothing stated satisfied the Tribunal the applicant could not obtain work commensurate with his skills in India.

    [1] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, “Education”, p.9.

    [2] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Economic Overview’, p.8.

20. At hearing the applicant also said he would have to (words to the effect) pay a bribe in order to be allowed to study in India. Though corruption exists in some areas in India, based on the country information considered, and based on the Tribunal’s experience of discussing claims with numerous Indian Protection visa applicants, I understand it is very uncommon for prospective students in India to have to pay a bribe in order to be allowed to study. The country information stated:

    Children aged 6 to 14 are entitled to free and compulsory education under the Constitution.… [3]

    Education: The constitution provides for free education for all children from ages six to 14, but the government did not always comply with this requirement.[4]

    and:

    India’s higher education system stands third in size in the world after the US and China with nearly 26 million students in over 45,000 institutions in the country. In the last decade the country has witnessed a particularly high growth rate in student enrolment at a CAGR of 10.8% and institutions at 9%. …   

    Indian higher education has been progressing at a fast pace adding over 20,000 colleges and about 8 million students between the ten year period 2001 - 2011. As of 2011, Indian higher education system is spread over 42 central universities, 275 state universities, 130 deemed universities and 90 private universities. … [5]

    [3] DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, “Education”, p.9.

    [4] US Department of State, Country Reports on Human Rights Practices for 2017, India.

    [5] ‘HIGHER EDUCATION IN INDIA - Access, Equity, Quality’,  Obadya Ray Shaguri - EAN World Congress Scholar 2013, accessed 27 February 2019.

21. Be that as it may, the Tribunal accepts that if the applicant’s visa is cancelled he would not be able to undertake studies in Australia. However, and as stated above, the Tribunal is not satisfied the applicant’s present intention is to remain in Australia for the purposes of study.

22. Regarding the circumstances in which the ground for cancellation arose, in his response to the NOICC the applicant said he arrived in Australia in August 2014 and his course was due to commence in September 2014. However, his mother had ‘become seriously ill’ and as a result he had then decided not to study in Australia. He said he then cancelled all his COE’s and returned to India to reside with his sick mother. The applicant then said his mother recovered in February 2015; and he returned to Australia (‘half hearted’) to continue his studies. He obtained admission to the Sydney Metro College. He then found out his mother had been hospitalised and he again “lost interest in studies” in Australia. However his parents wished him to remain in Australia to study though he wished to return to India to be with his sick mother. Due to his concerns, the applicant could also not decide on a career path. The applicant said he was then advised by his ‘agents’ to obtain enrolment in a Bachelor degree in Australia. He said he was in the process of obtaining enrolment when he had received the NOICC. Upon receipt of the NOICC, the applicant became depressed. However, the applicant said he now intends to complete a bachelor’s degree in Australia.

23. When discussed at hearing, the applicant said his mother suffered from kidney stones and was hospitalised on one occasion; though she also suffered pain from the stones on occasion. The Tribunal noted (words to the effect) the health services available to persons in India may not be as sophisticated as those available in Australia, however his mother should be able to be treated for kidney stones in India.[6] The applicant did not dispute this.

    [6] See DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018, ‘Health’, p.8.

24. However, the applicant also said his mother’s health issues had allegedly caused him to be stressed and depressed. Though when then asked at hearing, the applicant conceded he had not sought a deferral from his subsequent courses (on return to Australia), nor did he contact the Department to seek to remedy his circumstances. The applicant did not dispute this. Next, the applicant also did not claim to have sought any medical assistance (including from a College counsellor). At hearing the applicant then said his parents sent him a herbal remedy from India; being Echinacea, though the Tribunal understands this is also available in Australia. Amongst other things:

    Echinacea is widely used to fight infections, especially the common cold, and the flu. Some people take Echinacea at the first sign of a cold, hoping they will be able to keep the cold from developing, Other people take Echinacea after cold or flu-like symptoms have started, hoping they can make symptoms less severe or resolve quicker.

    Echinacea is also used against other types of infections including urinary tract, ear and throat infractions but there is not good scientific evidence to support these uses.[7]

    [7] ‘Echinacea’, WebMD, accessed 27 February 2019.

25. Respectfully, and though the Tribunal is not medically trained, it does not appear the applicant’s medication was of much if any value to his claimed depression; or that his claimed depression was sufficient to have caused him to cease his studies in Australia. This is one reason that caused the Tribunal to find the applicant’s claimed depression did not prevent him from studying in Australia.

26. Next, at hearing the applicant claimed to have worked for the last 12 months delivering gas bottles and also to have some work as a Uber driver. Before that he had worked in a car wash for two years; and before that he had worked in a pizza parlour for a few months. The Tribunal then noted his claimed depression had not prevented him from maintaining ongoing work in Australia. He conceded this was correct, but that he was ‘constantly focussed’ on his mother. That said, given the applicant’s capacity to maintain ongoing work in Australia, this is a further reason that has satisfied the Tribunal the applicant’s claimed depression did not prevent him from studying in Australia.

27. After then considering all the evidence, the Tribunal is not satisfied the applicant’s mother’s health constituted a sufficient explanation for the applicant failing to continue his studies in Australia. I am satisfied that he ‘lost interest in studies’ in Australia for other (non-disclosed) reason/s; and that he no longer wished to remain in Australia for the purposes of study.

28. Next, there is no evidence before the Tribunal that the applicant had been uncooperative with either the Department or the Tribunal. There is no evidence before the Tribunal that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. There is no evidence before the Tribunal the applicant has a compelling need to travel to or remain in Australia.

29. Next, if the applicant’s visa is cancelled, he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before it, the Tribunal is not satisfied the applicant would be subject to indefinite detention. Further, the Tribunal also believes the applicant could retain his Bridging visa (temporarily) in order to remain in the community to finalise his affairs prior to departing Australia.

30. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.

31. Next, and regarding whether any international obligations would or may be breached if the (Indian citizen) applicant’s visa is cancelled, the applicant said it would be hard for him to study in India. When discussed he referred to conditions in India, including politics. When the Tribunal then asked him whether he was suggesting he may fear persecution in India, he said this was correct. He also agreed this was due to economic, social and political conditions in India. The Tribunal noted that no claim to fear persecution had been raised previously (which was not disputed by the applicant). When then asked what he feared in India, the applicant said (words to the effect), he would have better opportunities in Australia.

32. Be that as it may, the Full Federal Court has previously upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to (possible) non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a Protection visa (COT15 v MIBP (No. 1) [2015] FCAFC, North, Collier & Flick JJ, 22 December 2015). The Tribunal understands each case needs to be considered according to its merits, however in the present case, I am satisfied that any protection claims could be better canvassed in an alternate visa process. 

33. The applicant told the Tribunal he now wanted one more chance to study in Australia. However, and after considering all the accepted evidence herein, and given the applicant should be able to continue studies in India (where he may more readily obtain the assistance of his family), I am satisfied the discretion to cancel the applicant’s Student visa should be exercised.

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.

    Mr S Norman
    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.