SHARMA (Migration)

[2018] AATA 1398

SHARMA (Migration) [2018] AATA 1398 (6 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parveen SHARMA

CASE NUMBER:  1708630

DIBP REFERENCE(S):  BCC2017/678335

MEMBER:Fiona Meagher

DATE:6 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 April 2018 at 3:28pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Genuine student – Family’s medical condition – Lack of finance – Non-compliance over a long period

LEGISLATION
Migration Act 1958, ss 116, 119
Migration Regulations 1994, r 2.43, Schedule 2

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 April 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa) on the basis that the applicant is not a genuine student. 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 provided a copy of the decision record to the Tribunal decision record contain relevant extracts of the PRISMS records of the applicant.

4. The applicant appeared before the Tribunal on 22 March 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

9. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

10. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

11. According to the delegate’s decision, which was made on 13 April 2017, the applicant was granted a TU 573 Higher Education Sector Student visa on the basis of undertaking a Diploma and a Bachelor of Business. Between 13 March 2014 and the date of the making of the delegate’s decision, a period of just over three years, the applicant had not completed any courses of study. It is not in dispute that the applicant did not engage in study, in accordance with the conditions of his visa, for a lengthy period of time.

12. At hearing the applicant told the Tribunal that he started his Diploma of Business at James Cook University, but that the certificate of enrolment was cancelled because he was not coping. He then went to the Serena Russo Academy to do English, and from there an agent convinced him to go to the Holmes Institute (because it was meant to be easier). His certificate of enrolment was cancelled at the Holmes Institute because he was unable to pay the fees, although he said that after discussion with Holmes he paid them the fees, and they promised him a new certificate of enrolment but did not deliver on that promise.

13. The applicant went on to say that he enrolled in an Advanced Diploma at the Skills Institute which he completed after his visa was cancelled, and that he has now started a Bachelor of Business at the Christian Heritage College.

14. The applicant said that the reasons why he did not achieve with respect to his studies were that he only went to one agent who messed him around, and that in August 2016 his mother became ill with a gallbladder operation, and as a result he became tense and depressed. When asked by the Tribunal whether he saw anybody about his depression at the time, the applicant replied in the negative. He did however say that he was worried about his mother because she is alone in India. He said that his father has passed away and that his sister lives in India but is married and lives 300 to 400 km away from their mother. The applicant said that his mother is unaware of all the trouble with his visa, and that she has paid for the fees, and that he supplemented that by working in a restaurant (which he is still doing).

15. The applicant also said that he had become married on 4 May 2017, and that his wife is also on a student visa. When asked by the Tribunal why he got married in circumstances where there was uncertainty regarding his visa status, he said that he was not concerned to get married because he had already booked the date and the parties have been together for more than two years. The applicant said in relation to his future intentions, that after he has completed his Bachelor of Business he will go back to his mother and run a business in India – preferably a restaurant. In that regard, the applicant said that in Singapore he studied a Diploma of Food and Beverages and worked in the food industry there as well. He said that he does not want to go back to India with empty hands.

16. Prior to the hearing the applicant placed before the Tribunal a number of documents including as follows:

    ·A confirmation of enrolment with respect to the bachelor of business at the Christian Heritage College for a course start date 15/02/2018, and end date 30/11/2020.

    ·Confirmation of enrolment with respect to an advanced diploma of business at the Skills Institute Australia for a course start date 13/03/2017, and end date 09/03/2018.

    ·Certificate from the Skills Institute Australia with respect to an advanced diploma of business.

    ·Record of results from the Skills Institute Australia.

    ·Student completion letter from the Skills Institute Australia dated 13 February 2018.

17. After the hearing the Tribunal received a submission from the applicant’s registered migration agent attaching a medical certificate with respect to the applicant’s mother’s gallbladder operation undertaken in August 2016, and a copy of the applicant’s passport to evidence his relationship with his mother.

18. The Tribunal has also had regard to the applicant’s previous registered migration agent’s response dated 11 April 2017 to the notice of intention to consider cancellation dated 29 March 2017. That letter contained similar information to the evidence given verbally by the applicant at hearing, other than it cited that the applicant himself suffered from a medical condition – back pain in early 2015, and stated that the applicant’s mother’s medical condition arose in the latter part of 2014. The Tribunal notes that the applicant made no mention of his back pain during the hearing, and that he said that his mother’s medical condition was in 2016 (contributing to his lack of funds, and depression).

19. On the evidence before it, the Tribunal finds that the applicant has failed to complete any higher sector education courses and has completed only one lower sector education course since he commenced study in Australia in 2014. The Tribunal notes that the applicant has given a number of explanations excusing his inability to study, including a lack of finances due to his mother’s ill health, concerns regarding his mother’s ill health, poor advice from the registered migration agent, and a failure on the part of the Holmes Institute providing with a certificate of enrolment as promised. The Tribunal considers that if the applicant were a genuine student he would have made more progress in relation to his studies.

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

21. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel to and stay in Australia

22. The applicant has completed an Advanced Diploma of Business on 13 February 2018. The Tribunal is satisfied that the applicant travelled to Australia with the original intention to study in this area, and has placed some weight in the applicant’s favour on this factor.

    The extent of compliance with the visa conditions

23. The applicant was granted a student visa subclass 573 to undertake a course of study, and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573 visa, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily. The Tribunal notes that between 22 August 2016 and 13 March 2017, the applicant has not held a certificate of enrolment, and that until March 2018, has not held enrolment for a course at higher education sector level appropriate to his visa since 23 December 2016.

24. The Tribunal notes that the non-compliance has occurred over a substantial period of time and places weight upon this.

25. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions. It considers that this is a consideration in his favour, and has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

26. The Tribunal has had regard to the evidence from the applicant that he experienced difficulties in relation to his study due to initially his inability to cope with the study at James Cook, financial problems due to the need to pay for his mother’s health care, stress and depression arising from his mother’s health care, difficulties with his own health in early 2015, difficulties with a migration agent, and disappointment with the way he had been treated by the Holmes Institute.

27. In relation to these matters, the Tribunal finds that the issues flowing from his mother’s ill health, and his own, significantly postdate the time at which he first became in breach of his visa conditions. Accordingly the Tribunal places only very limited weight upon those factors. In relation to the difficulties the applicant claims he experienced with the migration agent, and the disappointment he experienced with the way he had been treated by the Holmes Institute, the Tribunal finds that whle the applicant may have feelings of anger and disappointment in this regard, it is the applicant’s responsibility to be cognisant of the conditions of his visa, and ensure that they are complied with. Accordingly, the Tribunal places only very limited weight upon those factors.

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of the cancellation decision.

28. The Tribunal accepts that the applicant will suffer hardship as a result of cancellation of his visa because he will not be able to apply for a visa to return to study in Australia in the near future. The Tribunal considers on the evidence before it that the applicant and his family members, in particular his mother and wife may well suffer disappointment if the visa is cancelled. The Tribunal does not consider there is any evidence before it that the applicant and his mother will suffer any significant degree of hardship (financial, psychological or emotional) if his visa is cancelled and has given little weight to this factor in considering whether to cancel the visa. The Tribunal has also considered the financial losses incurred by the applicant and his mother as a result of his failure to remain compliant with the conditions attached to his visa. Whilst the Tribunal acknowledges that this is unfortunate, it does not consider that the applicant or his family will, on the evidence before it, suffer any significant degree of hardship financially. As well, the Tribunal has considered the fact that the applicant is married, and that his wife is also a student in Australia, and that at hearing he stated that should his visa be cancelled she intends to return to India with him. The Tribunal acknowledges that some hardship may be suffered by the applicant’s wife, and places some weight on that.

    The visa holder’s past and present behaviour towards the department (for example, whether a person has been truthful in statements or cooperative in their dealings with the Department).

29. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Tribunal has been untruthful or uncooperative. It considers this is a consideration in his favour and has taken it into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

30. The Tribunal heard evidence that the applicant is married, that his wife is a student in Australia, and that she intends to return to India with him if his visa is cancelled. She is not however compelled to return to India. That is a matter for her. Accordingly, the Tribunal concludes that there are no persons in Australia whose visas would or may be cancelled, and therefore finds that this factor is not relevant.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

31. The applicant did not raise any matters to suggest that this is an issue. The Tribunal therefore finds that there would be no breach of any obligations under relevant international agreements and the Tribunal finds that this factor is therefore not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor.

32. The applicant did not raise any matters that indicated that family violence is an issue, and therefore the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision.

33. The cancellation of the visa would mean that the applicant is an unlawful noncitizen, and liable to be detained and removed. However the Tribunal does not consider that this factor outweighs other factors that point to the cancellation of the visa. The Tribunal has also taken into account the fact that the applicant would face being subject to PIC 4013 and a three-year exclusion period on temporary visas, but the Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that point to the cancellation of the visa.

34. There is nothing in the act to prohibit the applicant from applying for a protection visa without the Minister’s intervention. The Tribunal does not consider that indefinite detention is a possible consequence of the cancellation decision because the applicant cannot be removed from Australia consistently with Australia’s non-refoulement obligations. It considers that these are not factors that support not cancelling the visa.

    Any other relevant matters

35. There are no other relevant matters before the Tribunal.

36. The Tribunal does not find it persuasive that a genuine student would take no steps regarding having a current confirmation of enrolment between 22 August 2016 and 2 April 2017, a period of more than seven months.

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

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Fiona Meagher
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.