Sharma (Migration)

Sharma (Migration) [2021] AATA 4284 (14 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hirday Sharma
CASE NUMBER:  2003346
HOME AFFAIRS REFERENCE(S):          BCC2017/2919682
MEMBER:Brendan Darcy
DATE:14 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 October 2021 at 9:49am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – Federal Circuit Court remittal –did not comply with condition 8202 – applicant was not enrolled in a registered course – father and sister’s medical conditions – applicant has some emotionally extenuating circumstances beyond his control –genuine motivation in seeking academic achievement – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 359AA
Migration Regulations 1994 (Cth), Schedule 8
Education Services for Overseas Students Act 2000 (Cth)
CASES
Minister for Immigration and Citizenship v SZRKT and Anor (2013) 212 FCR 99

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 17 October 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with condition 8202(2) holder is enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 23 October 2017 the applicant lodged a valid application for review with the Tribunal. On 26 June 2019 the Tribunal, differently constituted affirmed the delegate’s decision.
On 30 August 2018 the applicant sought judicial review of the previous Tribunal’s decision in the Federal Circuit Court of Australia. On 14 February 2020 the court made orders by consent issuing a writ of certiorari quashing the 26 June 2019 decision of the Tribunal and a writ of mandamus directing the Tribunal to determine the application for review according to law.
The present application for review was raised on 19 February 2020 in accordance with the orders of the Federal Circuit Court of Australia.
Via an internet-enabled audio-visual platform (MS Teams), the applicant appeared before the Tribunal on 23 September 2021 to give evidence and present arguments.
The applicant was assisted at the Tribunal by his representative.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 (Cth) (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?
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)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 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
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has considered the evidence contained in Department file: BCC20172919682 and the previous Tribunal File 1735911.
Background and migration history
The applicant was born on 9 April 1996 and is a citizen of the Republic of India (India). The applicant’s parents and a younger sister remain living in Jammu and Kashmir State, India.
On 16 July 2014, the applicant was granted a Class TU (Student) subclass 573 (Higher Education Sector) visa (TU-573 visa) on the basis of his enrolment at Academies Australia Polytechnic Pty Ltd in a Diploma of Management.
The applicant initially arrived in Australia on 18 July 2014 and has not departed since.
Notice of intention to consider cancellation
On 26 September 2017 a delegate of the Minister issued the applicant a notice that they were intending to consider cancellation of the applicant’s TU-573 visa pursuant to s.116(1)(b) of the Act (NOICC).
The specific grounds the delegate relied on where the applicant’s non-compliance with condition 8202 paragraph 8202(2)(a) of his visa; Evidence available to the delegate in the Provider Registration and International Student Management System (PRISMS) the applicant had not been enrolled in a registered course of study since 15 February 2017.
Allowing for the letter to be delivered by registered post, the applicant was provided 12 working days in which to respond to NOICC. A courtesy copy was also sent to the applicant by email.
The applicant emailed the Department on 26 September 2017 acknowledging that he had received the NOICC via email.
On 4 October 2017 the applicant provided a further email response to the NOICC in which he stated in full:
Thank you very much for providing me opportunity to explain my circumstances before making any unfavorable decisions for my future.
I come from Jammu and kashmir state of India (which is in war like situation most of the time due to conflict between terorists and Indian Army). I belong to a Kashmiri pandit (Hindu) and are always worried about our wellbeing due to terrorists activity in Jammu and Kashmir. In my family I hv father, mother and one younger sister Priya Sharma; In jan 2017 She was diagonised with a Life threatening disease; Tumour in her brain cells. This news was very very devastating to me and my parents; the day I got to know about this news I am just crying and praying to God for her well being. As she is the only sibling in my family I am very much attached to her. Due to this I was unable to focus on my self ....I completely cutt off myself from everyone in Mel so that I can speak to her and spend more time with her and give her assurance and confidence that she can live a long healthy life. I forgot to eat, to sleep and was just depressed.
I wanted to visit India nd meet my little sister; however my parents advised me not to come back as you never know what can happen in jammu and Kaskmir. I requested them so much; however my parents said No. This broke my heart Further!
I was emotionally and mentally exhausted in coming months. In April 2017 again we got a bad news; My father was hospitalised in emergency due to his deteiorating health as my sister health effected him so much. My mom and I was just crying over the phone all the time. We all were scared.
I was so much disappointed and depressed with all these circumstances, which has lead me completely dioriented. Looking at my condition my few friends advised me to see Physcologist so that I can overcome this hardtime with assistance and take some care about my health; which I did eventually.
I hv requested my mother to send me doctor papers in regards to my sister and my father hospitalization (I hv attached one letter from her doctor of jan 2017).
I hv also requested Physcologist in Mel to gv me appointment so that I can provide you some Medical letter from him too advising my health and situation as with his help I am improving day by day to lead a normal life by overcoming my fear and depression and focusing on my parents dream and my career dreams.
I hv always maintained all my visa conditions in Aus. I hv always notified my contact details and adress to my education providr, I hv always worked 20 hours per week as per my student visa, I hv passed all my study whatever I hv undertaken in Aus on my stufdent visa, Always had OSHC. This is the first time any condition being breached on my Student visa in Aus ; thats too because of circumstances beyond my control which effected me greatly and my parents greatly.
"Everyone deserve a second chance" - This is the phrase I hv listen in Aus
I hope to get second chance to fix my life in Aus and finish my studies and Go back and make a career in Another state in India where my sister can get better treatment and my parents can retire and live with me. I am the only son of my parents and I have to be ready to take responsibilty of my family otherwise no one will be happy in my family. Now in this difficult time I have understood the importance of opportunity of studying in Aus and fulfilling my parents dreams so that atleast they are tension free for one chilld of their.
Kindly give me one chance to fix my life please please. I would be very grateful to you. I am only hope for my parents.
I promise never to let any circumstances to become hurdle in my career pathway. Kindly gv me one last chance.
Attached to the email was a single page scan of an ‘In-patient general case sheet) from SMGS Hospital GMC Jammu relating to Priya Sharma daughter of Vijay Kumar aged 18 years and date of admission 8 January 2017.
The NOICC sent by registered post was returned to the department unopened as undeliverable on 5 October 2017.
A delegate acting on behalf of the Minister proceeded to cancel that applicant’s student visa on 17 October 2017. The delegate did so pursuant to s.116(1)(b) of the Act on the basis that the grounds for cancelling the visa had been made out and that grounds for cancelling the visa outweighed the grounds for not cancelling the visa.
Evidence before the earlier Tribunal Member regarding the grounds for cancellation
On 23 October 2017 the applicant lodged a valid application for review with the Tribunal, with the decision record attached.
On 5 April 2019 the applicant gave written submissions to the Tribunal in the form of a statutory declaration dated 4 April 2019, relevant sections of which are as follows:
1. I, Hirday Sharma, came to Australia with a spark in my eyes to gain an overseas qualification and earn an Australian Qualification as Australian Studies are considered one of the best in our country and we can secure good package if we have completed studies over here in Australia.
2. I came to study Diploma of management leading to Advance diploma of management and Bachelor of Business from Australian Academies Polytechnic in July 2014.
3. As I was very new, I could not adjust in Australia. I tried my best to cope up with the pressure of studies, work and house chores but was finding it very difficult. I studied with Australian Academies Polytechnic till July 2015 in Diploma of Management. But unfortunately, because of the high level of Australian qualification I was not able to co-op up with Australian education system. I found the studies really hard and had to quit at the college.
4. After the careful consideration I decided to quit my current course and decided to enroll with another provider where they are meeting my requirements and of my level of understanding.
5. I enrolled with Stott's college in July 2015 for the same and studied there till September 2015. I found it far more difficult as compared to Australian Academies Polytechnic and their timetable was not suiting me at all as one class was finish quite late in the evening and I was scared to go back home by myself.
6. Again, I was in dilemma to decide what to do because if I will be keep on continues changes in my course like this, I won't be able to fulfil my parent's desire. I started feeling depressed at that point of time.
7. So, after the deep thoughts and serious conversation with my family and friends, they suggested me to go from scratch. They advised me to take things slowly and gradually and I will reach my destination.
8. I did the same and enrolled myself for certificate III in commercial cookery leading to certificate IV of commercial cookery and then Diploma of Hospitality management as a packaged program from Brighton Institute of Technology.
9. I really liked this college. Their classes were all in the morning and I was attending it very well. I passed all of my assignments and was going very well. I started the course and was studying in the college till February 2017
10. In January 2017, I got a call from India and came to know that my sister is in serious condition. She was diagnosed with a Life-threatening disease; Tumour in her brain cells. This news was very devastating to me and my parents. The day I got to know about this news, I was just crying and praying to God for her wellbeing, as she is the only sibling in my family and I am very much attached to her. Due to this I was unable to focus on myself. I completely cut off myself from everyone in Melbourne. So that I can speak to her and spend more time with her and give her assurance and confidence that she can live a long healthy life. I forgot to eat, to sleep and was just depressed.
11. I stopped going to school, work and stopped meeting my friends. I just sat at home and was just talking to her and my parents all the time. I did not got to school at that time and they did cancel my COE as well.
12. But as I was on Australian qualification level 6 and didn't maintained the level of qualification, I got a cancellation from the department in regards to my visa.
13. I was not able to focus on anything because I met with very unfortunate situation where I got to know my younger sister is struggling with a life-threatening disease and later on my father got very sick as well.
14. I was shattered and scared to give any bad thought to this. I did not enrol in any studies at that time and a lot of time lapsed.
15. My visa was cancelled in September 2017. Later on, everything got well and I wanted to study, but I could not get any COE from any college as I did not have study rights. No college was providing me COE and since then I am unable to study.
16. I wanted to study as this was my dream to complete a qualification from Australia, but it was shattered when my visa was cancelled.
17. I am very close to my family, and it has been extremely difficult for me to stay away from them all these years. I have property in my name in India, where I wish to start my own business. All this time my family has been extremely worried about me, due to my health, but they never stopped supporting me. Even now, I am not working, and my friends and parents are providing me with complete financial support. I wish to make all of this worth it for them and want to go back to India having completed my education successfully despite all these hardships.
18. If you ask I can get, properties' documents from my parent's stating that all the properties in their name will be inherited by me. My whole family is in India and I cannot stay without them. I want to finish my course and go back to them as there is no one over here in Australia, which as per me is the strongest tie I have with my family and my home country. My parents have always supported me in every phase of my life be it emotional or financial. My parents will support me fully for my future studies and business as well. If you need any more explanation or documentation, please let me know so that I can provide you in time.
19. I request you to kindly grant me this opportunity. I would be forever indebted to the Australian government for giving me this golden opportunity and helping me pave my way to success.
During the hearing held on 8 April 2019, the applicant was not represented and did not require the use of an interpreter.[1] The then presiding Tribunal Member asked the applicant about his enrolment history in Australia the applicant’s responses can be summarised as follows[2]:
·The applicant arrived in Australia in July 2014 intending to study a Diploma of Management followed by an Advanced Diploma of Management. He found the study a bit hard for him to get into and did not understand all of it. He spoke to an agent and decided to change his field of study to cookery
·He did not complete the Diploma of Management as he did not complete all of the assignments and struggled to pass one of the subjects. He did not commence the Advanced Diploma of Management.
·In July 2015 he enrolled in a Certificate III in Commercial Cookery at Stotts College, he only remained there for three months and did not complete the course.
·The applicant then enrolled in a Certificate III and Certificate IV of Commercial Cookery at Brighton Institute of Technology. The applicant initially claimed to have completed the Certificate III in Commercial Cookery.
·The applicant enrolled in a Bachelor of Business with at different times with two different providers.
[1] 1725911 Decision Record, 2
[2] 1725911 Decision Record, 2-3
When the previous Tribunal put to the applicant that his enrolment history was broadly consistent with PRISMS records, referring to the delegates decision the applicant agreed he had not been enrolled in a registered course of study since 15 February 2017.[3] The Member did so under the s.395AA provisions of the Act regarding adverse information.
[3] 1735911 Decision Record, 3.
According to the Tribunal’s decision record, the then presiding Tribunal Member proceeded to find the applicant had not been enrolled in a registered course of study since 15 February 2017 and had therefore not complied with condition 8202(2)(a). As such the grounds for cancellation of the applicant’s TU-573 visa were established in respect to s.116(1)(b) of the Act.
Material before the present Tribunal
On 30 August 2019, the applicant applied to have the Tribunal’s February 2015 reviewed by the Federal Circuit Court.
On 14 February 2020, the matter was remitted to the Tribunal to be reviewed on the basis that the Tribunal had erred in jurisdictional error in that the Tribunal overlooked a Hospital Case Note submitted by the Applicant to the Minister’s Department on 4 October 2017, which was a corroborative document that was cogent and central to the applicant’s claims. See Minister for Immigration and Citizenship v SZRKT and Anor (2013) 212 FCR 99 at [111] per Robertson J. In particular, the Hospital Case Note purportedly related to the Applicant’s sister, and therefore contradicted the Tribunal’s finding at [40] that “there is no documentary evidence in support of the applicant’s assertions that his sister got sick or that his father got sick at any time”.
On 3 August 2021 and 22 September 2021, the applicant’s forwarded submissions to the Tribunal with a number of supporting documents. The applicant admits in the submissions that he had breached the condition 8202 while holding his TU-573 visa.
The Tribunal notes that in the written submissions that the applicant acknowledged he had breached condition 8202.
During the scheduled hearing constituted to this presiding Member, the Tribunal carefully went over the material indicating that the applicant had not been enrolled in a full-time coursework since February 2017 because the applicant had not paid tuition fees. The applicant acknowledged that he had not re-enrolled in the relevant period between when his enrolment was cancelled and when his visa was cancelled on 17 October 2017.
As the applicant does not dispute that he was not enrolled in a registered coursework during the eight or so months prior to the date of cancellation, the applicant has accordingly not complied with condition 8202(2).
Based on the available evidence, the grounds for cancellation of the applicant’s TU-573 visa were accordingly made out s.116(1)(b) of the Act.
DISCRETIONARY CONSIDERATIONS

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 Procedural Instruction ‘General visa cancellation powers’.
Evidence before the previous Tribunal
The previous Tribunal asked the applicant about the circumstances surrounding the grounds for cancellation of his visa.[4] The applicant’s responses can be summarised as follows:
·     When his family informed him of his sister’s ill health in January 2017, he lost his focus
·     When asked again by the Tribunal the applicant indicated he might have failed his Certificate III in Commercial Cookery
·     The applicant stated that his father also become ill, this caused the applicant to lose himself owing to his age, loneliness, and culture shock following his arrival in Australia.
·     The applicant indicated at the time of the hearing his father was doing okay and his sister improving.
·     When the Tribunal put to the applicant it would be reasonably expected of him to inform his course provider and the Department of his personal circumstances to ensure he maintained his enrolment; the applicant responded that he was sorry, and at the time he was not attending work or study of leaving his home. He was not aware he could speak to his course provider or the Department.
·     When the Tribunal asked the applicant if he had seen a psychologist to assist with his mental health issues, the applicant replied ‘Nah”.
·     When the Tribunal enquired about the depression the applicant referred to in paragraph 6 of the 4 April 2019 statutory declaration the applicant stated he had not received a formal diagnosis or seen a psychiatrist at the time.
[4] 1725911 Decision Record, 3-6.
Pursuant to s.359AA of the Act the previous Tribunal put to the applicant that PRISMS records indicate that his certificate of enrolment in a Certificate III in Commercial Cookery was cancelled on 15 February 2017 due to the non-payment of fees and this was not consistent with information he had provided the Tribunal. The applicant did not want additional time to respond; and replied that he had paid the first six months of course fees, but stopped attending classes at the provider, and had not had further contact with them. Until informed by the Tribunal he was not aware that was the reason his enrolment had been cancelled.[5]
[5] 1725911 Decision Record 7.
The previous Tribunal then put to the applicant that it would be reasonable to expect the applicant as the visa holder would make reasonable enquiries of the course provider regarding all the circumstances of his enrolment including the payment of fees. The applicant responded indicating at the time he was not very worried about his studies because everything in his life was going downhill and he thought he could take a break.[6]
[6] 1725911 Decision Record 7.
Also pursuant to s.359AA of the Act the previous Tribunal put to the applicant that PRISMS records indicated that on 13 November 2015 a certificate of enrolment for a Certificate III in Commercial Cookery has been cancelled for non-payment of fees. The applicant did not want additional time to respond or an adjournment. The applicant responded that he did not know he had any fees to pay at the time, he thought he had pay his fees at the start of the course and did not check for a long time, he said he had an immigration agent who had misguided him. The applicant then admitted that he knew that as a student it was his responsibility to manage his course enrolment.[7]
[7] 1725911 Decision Record 7.
The previous Tribunal then put it to the applicant the he could have reasonably approached the course provider to seek information in relation to his employment or asked his agent to do so, but it was ultimately his responsibility. The applicant responded that he should have gone to his course provider and talked to them properly, he thought he has made some sort of payment but should have checked properly. He apologised if it appeared, he was careless but it was that he was not aware he had fees to pay.[8]
[8] 1725911 Decision Record 7.
The previous Tribunal then put to the applicant that several months had passed between his enrolment being cancelled in February 2017 and the NOICC being issued in September 2017. The applicant acknowledged this.[9]
[9] 1725911 Decision Record 7-8.
The previous Tribunal did not accept that the applicant’ claims that he ceased to be enrolled in a registered course of study on 15 February 2017 due to the illness of his sister or father.[10]
[10] 1725911 Decision Record 9.
Out of respect and to avoid confusion I have not mentioned the documentary evidence claims of the previous Tribunal, but feel you should be aware of it
Nor did the previous Tribunal accept the applicant ceased to be enrolled in a registered course of study on 15 February 2017 due to depression, noting a lack of objective documentary evidence to support the claim.[11]
[11] 1725911 Decision Record 9.
Considering the applicant’s claim that that due to his age, unfamiliarity with Australian culture, and lack of familial and social connections in Australia led to his enrolment in a registered course ceasing on 15 February 2017 as he was unsure where and from whom to seek assistance. The previous Tribunal placed low weight in the applicant’s favour.[12]
[12] 1725911 Decision Record 9.
The previous Tribunal found that the applicant failed to take reasonable steps in regard to maintaining his enrolment in a registered course of study weighed heavily against the applicant.[13]
[13] 1725911 Decision Record 9.
The previous Tribunal found the applicant’s purpose to travel to and stay is Australia was for study. However, there was no compelling need for the applicant to travel to or remain in Australia. The previous Tribunal gave this factor low weight in the applicant’s favour.[14]
[14] 1725911 Decision Record 9.
The previous Tribunal found the applicant had complied with the conditions of his visa, apart from condition 8202, and gave this factor low weight in the applicant’s favour.[15]
[15] 1725911 Decision Record 9.
The previous Tribunal accepted that the applicant may face some disappointment if his student visa was cancelled and he was he was required to return to India, that this would cause some degree of embarrassment when compared to the achievements of members of his extended family. The previous Tribunal accepted that this would impact the types of employment available to the applicant in India, and that the quality of education in India was not to that of Australia. The previous Tribunal gave this factor low weight in the applicant’s favour.[16]
[16] 1725911 Decision Record 9-10.
The previous Tribunal accepted the was not evidence that the applicant had been uncooperative with the Department in the past. The previous Tribunal gave this factor some weight in the applicant’s favour.[17]
[17] 1725911 Decision Record 10.
The previous Tribunal found that the applicant had no dependents and no consequential cancellations pursuant to s.140 of the Act would flow from the cancellation of his TU-573 visa. The previous Tribunal placed no weight on this factor.[18]
[18] 1725911 Decision Record 10.
The previous Tribunal accepted that the applicant had acknowledged that there would be legal consequences if his TU-573 visa was cancelled, including making his own arrangements to obtain a visa allowing him to remain onshore lawfully, and should he not do so he faces the prospect of detention and removal if he remained in Australia unlawfully. The previous Tribunal accepted - and the applicant acknowledged, that the applicant would be subject to a three year period of exclusion from Australia and the operation so s.48 of the Act would limit his options to apply for further visas in the future. The previous Tribunal gave this factor low weight in the applicant’s favour.[19]
[19] 1725911 Decision Record 10.
When the previous Tribunal asked if he feared anything in returning to India, the applicant expressed an apprehension of the security situation in Jammu and Kashmir, and that his lack of qualification would make it difficult to secure good employment and resettle in India after a long period in Australia. When the previous Tribunal asked the applicant if anybody had persecuted him the applicant indicated he did not know, but that he was well liked, perceived to be smart and wealthy in his community in India, and that his grandfather had lost lots of stud moving from Pakistan to India. The applicant confirmed to the previous Tribunal he had not been persecuted in India. The Tribunal found that there was no indication that cancellation of the applicant’s TU -573 visa would breach Australia’s international obligation and placed low weight in the applicant’s favour on this factor. [20]
[20] 1725911 Decision Record 10-11.
When the previous Tribunal aske the applicant if there were any other matters the applicant wished to raise with the tribunal the applicant indicated that he missed being away from his studies, wanted a little change to do more study and that he was disappointed in himself. The previous Tribunal accepted this and placed low weight in the applicant’s favour on this factor.[21]
[21] 1725911 Decision Record 11.
Considering the circumstances as a whole, the previous Tribunal concluded that the applicant’s TU-573 should be cancelled.[22]
[22] 1725911 Decision Record 11.
Applicant’s submissions to the present Tribunal
The applicant’s submission received by the Tribunal on 3 August 2021 addresses circumstances that informed consideration of whether his TU-573 should be cancelled. They can be summarised as follows:
During the time the applicant held his student visa he was under terrible emotional distress due to the illness of his sister with a severe neurological disorder requiring hospitalisation and long term care to recover.
·The applicant has attached 13 pages of medical documents from SMGS General Hospital GMC Jammu relating to patient Priya Sharma, daughter of Vijay Sharma. The documents have been poorly scanned, and the pertinent details are handwritten, and contain substantial medical shorthand. What can be discerned is that the patient was admitted to the hospital on 8 January 2017suffering from epileptic seizures, requiring surgical intervention, the last discernible date on the records is 12 January 2017.
The applicant claims that his mother was involved in an accident at around the same time which left her seriously injured and fighting for life.
·The applicant has attached 12 pages of medical records from Government Medical College Hospital Jammu that relate to Anya Sharma Wife of Vijay Sharma. The documents have been poorly scanned, and the pertinent details are handwritten with largely illegible medical shorthand. What can be discerned is that the patient was admitted to the hospital on 7 or 8 December 2017, the applicant had fallen and had sustained facial injuries including loss of teeth and fractures to the facial bones. It appears the patient was discharged on 12 December 2017.
·The applicant also attached 2 pages of medical records from the Indira Ghandi Government Dental College & Hospital Jammu showing that the patient attended an outpatient clinic on 15 December 2017
The applicant is seeking the Tribunal set aside the decision to cancel his TU-573 on compassionate ground so he can commence and complete his studies before returning to India and the that Tribunal should consider:
·That he only intends to remain in Australia temporarily.
·He has complied with all other conditions of his visa and always cooperated with he Department when asked.
·Should the decision be affirmed he would have to make arrangements to return to India, and this would be difficult owing to the COVID-19 situation in India and the effect this has had on the cost of travel.
·If the applicant returns to India without completing his studies this will cayse his family emotional distress and financial hardship.
·He will face exclusion from Australia for three years, and this may impact his future career plans.
·Allowing him to remain and study will contribute to Australia’s economy and lessen the impact of the decline in international students.
The applicant states that he has strong family connections in India, including the need to care for his ageing parents and make arrangements for his sisters’ marriage. He has ancestral farming properties that he will not be able to inherent should he not remain a citizen of India.
The applicant wishes to study hospitality in order to one day own and operate a hotel in India. The applicant discusses his research into career prospects based on the hospitality and tourism industry in India, and the attractiveness of receiving an Australian education in this area.
The applicant states his plans for study have been frustrated following the cancellation of his TU-573 visas on 17 February 2021. He has held successive Bridging Visas E while the previous Tribunal, Federal Circuit Court and the present Tribunal dealt with his application of review of the delegates decision; these visas have had condition 8207 – No study,[23] on two occasion in 2021 he has attempted to have this condition removed, but the department has not grated this. The applicant submitted two notices of a grant of Bridging Visa E dated 22 June 2021 and 3 July 2021 which show the condition is imposed.
[23] Tribunal File 1725911 document 5364689.
The applicant makes reference is his submission to an offer letter, attached to the submissions was a letter of offer and acceptance agreement from the Brighton Institute of Technology for a place in a Certificate III and IV in Commercial Cookery and Diploma of Management. The course is due to commence on 2 September 2019, and cumulatively will conclude on 3 November 2023.
·Section 5 of the Agreement specifies that the offer is valid for a period of 14 days from issue, though no date of issue is noted in the letter or agreement. In order to accept the agreement, the prospective student must sign the agreement and make an initial payment. A confirmation of enrolment would then be issued.
·The agreement was signed by the applicant on 2 August 2018, it has not been signed by Brighton Institute of Technology.
·The applicant has not provided evidence that the initial fees required have been paid.
The applicant also attached information on the Tourism and Hospitality Industry in India from 2018, printouts of a vacancy search for hospitality manager roles in India and surrounding nations on 23 July 2021, A report on hotel management salaries in India dated May 24 2021, Media reports from 18 April 2018 that Australia was, at the time hosting and unprecedented number of international students, an article outlining the importance of international education by then chair of Study Perth dated 29 August 2017, and undated reports and family life and values in India.
Findings
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 applicant has consistently argued that he came to Australia to study on a temporary basis and that he intends to return to his country of origin when his studies are complete. The Tribunal notes that the previous Tribunal member found there was no compelling need to travel or remain in Australia. The member further found that although his purpose of travel was to travel, little weight was placed on the purpose of travel.
During the hearing, the Tribunal enquired into the purpose of his travel and the reasons he changed coursework from management in one educational provided to cookery and hospitality management to another education provider. The applicant was adamant that he had travel to Australia to complete a hospitality course and that the change of coursework was hospitality related. Australian qualifications in hospitality, he claimed, would significantly assist him attain work in Jammu where he had family friends who owned and/or managed hotels in an area of India where the sector was growing. He said that he has received an expression of interest to re-enrol since his visa has cancelled in late 2017 but the ‘no study’ condition prevented him from doing so. The Tribunal discussed the limited academic progress since he studies began in 2015. The applicant claimed that the coursework and timetable as unsuitable, especially as one of the courses finished late in the evening and the applicant felt apprehensive about his safety. The applicant also argued that it was a significant part of his culture as the family’s only son to dutifully return to India and he needed the degree to be competitive in the Indian labour market.
Although there is little academic progress in two years the applicant was expected to study, he has provided reasonably plausible reasons for it and persuasive reason as to why he would complete a diploma or degree if this visa is reinstated. On balance, the Tribunal has insufficient reasons to demonstrate that the applicant is not a genuine student who wishes to remain temporarily in Australia.
the extent of compliance with visa conditions
The Tribunal enquired whether the applicant had not updated the Department about his address in 2017, given the registered mail with the NOICC enclosed was returned to the Department as ‘undelivered’. The applicant claimed that he was residing in the same address as the post was sent and that he did not see the mail or the post office’s contact card to retrieve the mail. The Tribunal accepts this explanation and finds he has not been non-compliant with any other conditions imposed on his student to update the Department about changes of address and other circumstances.
As there is no evidence before the Tribunal that the applicant has otherwise been non-compliant with other conditions, the Tribunal places some weight on this aspect in favour of the visa not remaining cancelled.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked extensive questions about the degree of hardship that may be caused to him by this visa remaining cancelled.
The Tribunal finds the applicant significantly exaggerated the degree of emotional and phycological hardship would encounter in returning to India. It did not assist the applicant’s credibility in responding that ‘his whole life will be broken’ if he did have a degree or qualification from an Australian educational provider. Neither did it assist him with advancing implausible claims that that Australian qualifications were not only more prestigious or advantageous than one from an Indian education provider but from any other English language speaking country. Furthermore, the applicant failed to provide any independent reporting to advance such a far-fetched claim.
Nonetheless, the applicant managed to elaborate that he held credible fears arising from stigmatisation as a person who had commenced studying in his middle-to-late twenties in a Indian education institution and characterised as distressing and impossible to overcome. He further elaborated that his employment prospects would be considerably diminished because he would be close to or over thirty years of age when he was seeking experience in India as a graduate. He instead that if the visa was reinstated and he obtained an Australian qualification he could avoid the negative impact of the stigmatisation. The applicant also said that as he is the only son in his family and that disappointing them contributed to the distress he would encounter if this visa were cancelled and he returned to India. The Tribunal notes the applicant’s representative are that the mature age students is not the norm in Indian and the negative feelings arising from becoming one are very harmful and shameful in Indian cultures. He also said his own self esteem would be impacted if he could not complete a degree and achieve his dream job in the manner he wanted.

Relatedly, the Tribunal also enquired whether the applicant was able to avoid stigmatisation by becoming an international student in English speaking jurisdiction other than Australia or studying in another part of India. In this regard, the applicant did not directly answer the question, stating his parents have invested in Australia and reinvesting in another country to complete a degree.
As mentioned above, the Tribunal does not accept the far-fetched and exaggerated claims about the prospects of the applicant’s facing a degree of stigmatisation so severe that it will ruin his life. That is not to diminish the genuine negative impact arising from the applicant becoming a slightly more mature student or even a student who completes a degree in another country, as discussed. He will have to overcome, as other have, the discomfort and embarrassment in explaining to family and friends about the delay in him commencing and/or finishing a degree in hospitality and management. The Tribunal accepts it will have some impact on his employment, but it does not accept he will be unable to find work in the Indian labour market because he finished his degree and relevant work experience slightly later in life. The degree of mental harm to the applicant has been considered against the lack of medical information to support the applicant’s claims as he has never sought out any medical support or counselling and that he has not received any diagnosis or medical treatment, including drugs for the mental conditions he claims to hold. Nor has he required hospitalisation or being section under a public health order. Indeed, he provided evidence that he used religious and other meditative techniques, such as yoga, to improve his mental health. This indicates the applicant’s mental health is considerably more robust than his otherwise risible claims about being on a verge of mental breakdown. It is the Tribunal’s assessment that the emotional and psychological harm arising from this visa remaining cancelled and returning to complete a degree in India or any other country to be notable but in no way significant, considerable, great, or severe.
The Tribunal accepts that the applicant may not achieve his academic and employment/business goals by not completing studies in Australia. However, the Tribunal places little weight on such a speculation far into the future, given the applicant admitted his sister was unable to complete a medical degree due to her epilepsy but acknowledge she will make a fine contribution to India in a fulfilling career as a qualified nurse.
The Tribunal accepts the applicant does not assess the emotional and psychological hardship arising from this visa remaining cancelled as amounting to be in severe, considerable, or significant. Instead it assessed any prospective stigma or loss of self-esteem the applicant will encounter as being serious enough to place a notable amount of weight in favour of the visa being not cancelled.
The Tribunal has also considered the degree of material and financial harm on the applicant if this visa remains cancelled. The applicant did not advance this very clearly but his arguments seem related to the opportunities lost if he did not finish his degree in Australia and that he may have to consider becoming a farmer and/or small business owner like his father. The Tribunal accepts that there is a risk of the applicant not reaching his potential in the labour market in the manner he prefers. As discussed in the hearing, no person has a n entitlement to achieving their dreams. Given the Tribunal does not accept the applicant is not able to reach his financial potential if he returns to India, it places little weight on this.
·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
The Tribunal asked the applicant what was happening to him in the early part of 2017 that led to him not being enrolled anymore. In response he indicated that up until the early part of 2017 he was doing fine but then his family called him with some bad news and told him that his sister was sick. He indicated his family didn’t tell him much about his sister’s health condition but that his sister was now doing fine. He indicated that as a result of hearing this news about his sister he lost his focus. The applicant further indicated that around early 2017 his father also unwell. As he was young and without family support, he lost himself and neglected to pay for his tuition fees. These events occurred, it was further argued, in a culture different to his own where he was alone with no one to guide him and tell him what to do. The applicant indicated he did not tell either his course provider or the Department what was happening to him because he did not know the importance of communication at that point in time.
It is not unreasonable for any visa holder to maintain his or her enrolment in a course for full-time study, given condition 8202 is explicitly imposed on his or her student visa. While the applicant has some emotionally extenuating circumstances beyond his control, he have failed to substantiate that his mental health was significantly affected to the extent that it significantly prevented him from paying his tuition fee (by the applicant’s own admission funds were available) . Neither has the applicant accounted for not re-enrolling between the lengthy period of the cancellation of his enrolment and the issue of the NOICC, other to state it was the time his father became ill and it was a mistake not to make the payment.
Accordingly, the Tribunal gives the accepted circumstances at the time of non-compliance some weight towards the visa not being cancelled as they did entail a genuine degree of emotional isolation and turmoil and because they were beyond his control.
However, it does not accept them to be so extenuating or exceptional that he could not maintain his enrolment or seek re-enrolment that they led to the grounds for the visa being cancelling.
past and present behaviour of the visa holder towards the department
There is no adverse evidence before the Tribunal that the applicant’s past or present behaviour towards either the Department or the Tribunal. Accordingly, the Tribunal places a little weight on this consideration towards this student visa under review reinstated.
whether there would be consequential cancellations under s 140
As the applicant travelled to Australia with his currently cancelled student visa without any dependents attached to it, the Tribunal does not find this consideration relevant in this matter.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
During the hearing, the Tribunal discussed with the applicant the mandatory legal consequences should this visa remained cancelled. The applicant had acknowledged that there would be legal consequences, including his narrowing options to apply for other substantive visas, the risk of detention and being forcibly removed if he became an unlawful non-citizen in Australia. The applicant further acknowledged being subject to a three-year period of exclusion from Australia. The previous Tribunal gave this factor low weight in the applicant’s favour.[24] However, in this decision, the Tribunal assesses that this factor as having some weight in the applicant’s favour.
whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
[24] 1725911 Decision Record 10.
Since this visa has been cancelled, the applicant has previously argued that as an Indian from Jammu he is a risk of harm due to the communal tensions and conflict between the Indian army and terrorists.
As discussed in the more recent hearing, the applicant has never applied for a protection visa. Should this visa remained cancelled, the applicant has the option of applying for a such visa to have any claims that he is owed Australia’s protection obligations assessed. He also has no children or dependents relevant to best interests of children as primary consideration. Given the applicant does not currently advanced any fears of persecution and given he has not applied for a protection visa since arriving in Australia and without dependents, the Tribunal therefore places little weight on whether the applicant has any international obligations.
if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This consideration is not relevant to the cancellation of this temporary student visa.
any other relevant matters.
The Tribunal notes that there is no evidence that the applicant has been non-compliant with any other of the laws of Australia or has a criminal record to indicate he is a person of poor character. The Tribunal places some weight on the applicant’s good character in favour of the visa not remaining cancelled.
At times, the Tribunal found the applicant’s testimony to be far-fetched. The Tribunal is mindful that at the time of arrival, the applicant was very young, not yet twenty. This indicates to the Tribunal that his immaturity and impressionability played a role in his non-compliance. Given his relative immaturity, the Tribunal places some weight on this favour of the visa being reinstated as it indicated that the applicant has some genuine motivation in seeking academic achievement for personal advancement.
Conclusion
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.
Based on a cumulative assessment of the evidence, the Tribunal finds the applicant had some circumstances that were beyond his control at the time of his non-compliance. However, those circumstances were not so severe as he could not afford to pay tuition fees, seek deferment, or re-enrol prior to the cancellation of his visa. Nonetheless the seriousness in breaching of condition 8202 had been mitigated do some extent by the notable but not severe extenuating emotional circumstances whereby members of his immediate family were genuinely ill. Furthermore, the Tribunal has placed favourable weight on the immaturity of the applicant in explaining his non-compliance. The Tribunal finds there has been no wilful malice or mischief behind that non-compliance or evidence of any further non-compliance. The applicant has sufficiently demonstrated that he is a genuine student, willing to study on a full-time basis and return to his country of origin, if it were not be reinstated.
In this case, in considering the evidence provided and on weighing the above factors, the Tribunal has placed more weight on the cumulative findings and evidence in favour of reinstating the applicant’s student visa over those countervailing findings and evidence in favour of cancelling the visa.
The applicant should be aware that the Tribunal only reached this decision marginally in his favour.
The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU Subclass 573 visas are not available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.
Considering the circumstances, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Brendan Darcy
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.

[2021] AATA 4284

14 October 2021

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