Sandhu (Migration)

[2018] AATA 4997

Sandhu (Migration) [2018] AATA 4997 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bikram Singh Sandhu

CASE NUMBER:  1703578

HOME AFFAIRS REFERENCE(S):           BCC2016/3116879

MEMBER:Jason Pennell

DATE:3 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 3 October 2018 at 12.56pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training sector) – breach of enrolment conditions – unable to study due to health issues – no enrolment offer – hardship – family disappointment – adequate qualifications to gain employment – decision under review affirmed

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

CASES
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 22 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training 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 complied with a condition of 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 appeared before the Tribunal on 19 September 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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.

Background

6.The applicant was granted a Student (Temporary)(class TU) Higher Education Sector (subclass 573) on 25 February 2008. He arrived in Australia on 2 March 2008 having enrolled in a registered course of study, namely a Masters of Accounting at La Trobe University. The Provider Registration and International Student Management System (PRISMS) records that the applicant enrolment in the Masters of Accounting was discontinued on 13 November 22008 due to non-payment of fees. The applicant then enrolled in a Diploma of Community Welfare course commencing 6 October 2008 and completed the course in November 2010. The applicant then enrolled in an Advanced Diploma of Business commencing on 15 November 2013 and completed the course ion 30 October 2014.

7.The applicant enrolled in a Certificate III in Commercial Cookery which commenced on 12 January 2015. The applicant was granted a Student (Temporary)(class TU) Higher Education Sector (subclass 573) on 19 January 2015. PRIMS displays that the applicant’s enrolment was cancelled on 29 September 2015 due to unsatisfactory course progress.

8.A Notice of Intention to Consider Cancellation (NOICC) dated 31 October 2016 was sent to the applicant advising that he was in breach of a condition of his visa. The applicant responded to the NOICC by an email dated 7 November 2016. The applicant did not dispute the grounds for cancellation and acknowledged that on 29 September 2015 he had received an email for the education provider regarding his cancellation of his COE. The applicant advised the delegate that he had not been able to attend College due to his ‘medical condition.’

9.In response to the NOICC the applicant sent to the Department:

·Applicants submissions;

·[List of documents deleted]

10.The delegate cancelled the applicant’s visa on 22 February 2017 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 29 September 2015.

11.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.

Did the applicant comply with Condition 8202?

12.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).

13.The Tribunal notes that enrolment in a course of study in a registered course was, at all times, a condition of the applicant's subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.

14.In his response to the NOICC dated 7 November 2016, the applicant did not dispute the grounds for cancellation. He acknowledged that on 29 September 2015 he was notified by his college of the cancellation of his COE. The applicant advised the delegate that he had not been able to attend College due to his ‘medical condition.’

15.Therefore, 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

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.Prior to the hearing the applicant provided a submission in response to the Invitation to provide information dated 24 January 2018. In addition, the applicant provided the Tribunal with a further submission at the hearing on 19 September 2018. The tribunal has read and considered the applicants submissions for the purposes of making this decision.

Applicants purpose of traveling and staying in Australia.

18.During the course of the hearing the applicant confirmed that his intended purpose in traveling and staying in Australia was to study. In addition he stated that he wished to complete his studies.

19.However, the applicant’s enrolment in a registered course of study was cancelled on 29 September 2015 and he has not been enrolled in a registered course of study since that date. Since being granted his a Student (Temporary)(class TU) Higher Education Sector (subclass 573) on 19 January 2015 the applicant has not completed any course of study and has remained in Australia in breach of the conditions of his visa.

20.The applicant claims that he intends continuing his studies in Australia and has provided a conditional letter of offer dated 4 November 2016. The conditional offer is dated after the date of the NOICC and appears to have been obtained as a result of the applicant having received the NOICC. In any event if the applicant intended to continue his studies the Tribunal would have been expected the applicant to have accepted the offer and be issued with a Conformation of Enrolment (COE).

21.According to PRIMS the applicant does not hold a current or future enrolment in a registered course of study with an Australia Education provider.

22.Accordingly, the Tribunal gives little weight to the applicant’s statement that the purpose of him traveling and staying in Australia was to study. 

Compliance with visa conditions

23.The applicant has not been enrolled in a registered course since 29 September 2015. While the applicant has obtained a conditional offer of enrolment he has not accepted the offer and as a result has not been issued with a COE.

24.Rather the applicant has remained in Australia without having complied with the conditions of his visa. As such the applicant’s non-compliance is significant and as such the Tribunal gives little weight in considering this factor.

The degree of hardship that may be caused to the Applicant. 

25.The applicant did not raise any specific matters of hardship in the hearing. The applicant stated that his parents are elderly and it would be very hard for them to take for him to return home without having obtained his qualifications in Australia. The Tribunal does not accept this as a form of hardship. The applicant has been in Australia since 2008 during which time he has displayed a lack of commitment and progress in his studies toward a particular vocation or occupation. The applicant has switched between courses in what appears to be more of an attempt to remain in Australia on a permanent basis rather to remain in Australia on a temporary basis for the purposes of completing a desired course of study.  Assuming the applicants parents are expecting him to return home to India, after being in Australia for approximately 10 years and his lack of progress, they are already questioning his ability to return home with his desired qualification.  As such, the Tribunal places no weight in this consideration in the applicants favour.

26.In addition, the applicant states that he will not be able to pursue his new passion of working in the age care sector upon his return to India. The applicant states that as a result of having completed the Diploma of Community Welfare he was able to obtain employment in the age care sector. He states that as a result of his medical condition he was not able to complete his course in Hospitality. As a result he has found a new passion for the age care sector and he now wants to complete an Advanced Diploma in Community Services and Program Management Course so that he can pursue a career in the age care sector in India. While the applicant says that he has tried seeking admission he did not provide the Tribunal with any letter of offer from any education provider to indicate his desire to enrol in such a course. In fact, despite having worked in the age care industry since 2009[1] and claiming due to health and occupational safety reasons, he was not able to complete his course in the hospitality after being diagnosed with [a medical condition]in January 2015, the applicant sort re-enrolment in the Certificate III Commercial Cookery Course in November 2016 after receiving the NOICC.

[1] Applicant’s submission provided at hearing. 

27.Accordingly, the Tribunal does not accept the applicant’s evidence about his desire to enrol and complete Advanced Diploma in Community Services and Program Management Course.

28.Nevertheless, the applicant has already obtained a Diploma of Community Welfare which has enabled him to obtained employment and valuable experience in Australia. It therefore appears that the applicant is already qualified to obtain employment and continue his career in the age care sector in India.

29.In any event while the Tribunal notes that some hardship will be caused to the applicant if his visa is cancelled including not being able to complete Advanced Diploma in Community Services and Program Management Course in Australia and being required to depart Australia, the Tribunal notes that he will be eligible to apply for a bridging visa which may allow him to remain in Australia so that he can finalise any outstanding matters including her husband’s 457 visa application.

30.However, the Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

31.While the Tribunal accepts that if the applicant’s visa is cancelled he will suffer some hardship by having to return to India, it has not accepted the applicants evidence about the reason for him wanting to enrol in an Advanced Diploma in Community Services and Program Management Course and as such has given little weight to the hardship the applicant says he will suffer in making its decision.

The circumstances in which the grounds for cancellation arose - Applicant’s Medical Condition

32.The applicant says that he was not able to continue with his study as he suffered from severe mental stress, depression and anxiety as a result of having been diagnosed with [a medical condition]and as a result of his father having been diagnosed with a heart condition.  [Details about medical condition deleted].  

33.The applicant provided a medical report for Dr Ameen Mohammed which confirms the applicant was diagnosed with [a medical condition]in January 2015. The report is dated 20 October 2016 and claims that since January 2015 the applicant has been depressed and anxious about his medical condition and unable to concentrate on his studies. Dr Mohammed appears to a general practitioner and not a qualified psychologist. The report does not refer to any other medical report by which the applicant has been diagnosed with depression and anxiety as claimed by Dr Mohammad. In addition, the report does not provide any evidence (including any consolations, examinations and referrals performed by Dr Mohammad) upon which the diagnosis of the applicant’s condition was based. In addition the report does not detail how the applicant’s alleged condition affected his ability to study or attend College. Dr Mohammed’s report describes the applicant’s condition only in broadest of terms and fails to provide any detail of his diagnosis and how it effects thee applicants ability to study, attend classes and /or advise the department of his changed circumstances in 2015. As such, the Tribunal places little weight on Dr Mohammed’s report.

34.The medial report of Dr Asthana dated 28 October 2016, states that the applicant has [a medical condition]and as a result is suffering from ‘clinically active depression’ which ‘will impact his studies.’ Dr Asthana does not provide any evidence (including any psychological reports) upon which the diagnosis of the applicant’s depression is based. The report fails to detail how the applicant’s condition affected his studies in 2015 and his ability to have made alternative arrangements with the department as to his visa conditions. It is also noted that the report is dated almost 2 years (22 months) after the applicant [found out about his condition] and does purport to not explain his condition at the time the applicant was enrolled in a registered course. As such, the Tribunal places little weight on Dr Asthana report. 

35.Therefore, while the Tribunal accepts that the applicant would experience some depression about having been diagnosed with [a medical condition], it does not accept that it would have prevented him from studying, attending college or at the very minimum making alternative arrangements with the department to avoid being in breach of his visa conditions.[Sentence deleted].     

36.The applicant did not provide any medial evidence in relation to his father’s condition. In addition the Dr Mohammed report and Dr Asthana report do not make any mention of his father’s condition in relation to his mental health. As such, while the Tribunal is prepared to accept that the applicant’s father suffered for a heart condition and that the applicant would have been concerned for his father’s wellbeing, it does not accept that it affected the applicant’s ability to study as claimed. 

37.Therefore, based on the evidence before the Tribunal the applicant has not been enrolled in a registered course of study since 29 September 2015. As such he has not complied with paragraph 8202(2)(a) of condition 8202. In addition the applicant has not been able to provide any valid confirmation of enrolment and as such he remains in breach of condition 8202.

38.During the course of the hearing the applicant submitted that he had failed to attend to his studies by reason of the fact that he had not been able to complete his studies. The applicant relied upon the Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC (Ahmed’s case) in support of his submission that he was prevented from attending and achieving a satisfactory standard by reason of his medical condition.[Sentence deleted]. The applicant did not provide any evidence that his education provider was aware that he had a medical condition or that he would be prevented from completing the course as a result of his condition. 

39.However, in this case the applicant’s visa was cancelled on 22 February 2017 by reason of the fact that he had not been enrolled in a registered course since 29 September 2015 in breach of condition 8202(a). That is, the applicant had remained in Australia after the cancelation of his enrolment in the registered course in breach of his visa condition 8202(a).  Accordingly, it is not necessary to determine if applicant was in breach of condition 8202(c) at the time of cancelation of the applicant’s visa as was the case in Ahmed’s case.

40.Therefore, the basis upon which the applicant’s visa was cancelled under s.116 of the Act was that he was not enrolled in a registered course from 29 September 2015. That is, in breach of condition 8202(a), this was admitted by the applicant.[2]

[2] Applicants submissions AAT file No1703578 f.17

41.Accordingly, the Tribunal has given little weight in the applicants favour when considering this factor. 

Past and present behaviour of the applicant

42.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to his in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

43.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

44.Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

45.The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

46.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

47.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Jason Pennell
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.