SHARMA (Migration)

[2020] AATA 2758

SHARMA (Migration) [2020] AATA 2758 (4 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr NIKHIL SHARMA

CASE NUMBER:  1908993

HOME AFFAIRS REFERENCE(S):          BCC2019/185348

MEMBER:Wendy Banfield

DATE:4 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 04 June 2020 at 12:41pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no compelling need to remain in Australia – fundamental breach – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with the terms of his student visa that required him to maintain enrolment in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 25 years old. He first came to Australia in 2016 to undertake a bachelor’s degree. The applicant had completed high school studies in his home country. Since he arrived in Australia the applicant has not maintained enrolment in his principal course of study. He changed education providers and enrolled in a different bachelor’s degree but did not continue studying. The Department then cancelled the applicant’s visa due to his failure to maintain enrolment for approximately 10 months.

4. The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments.

5. The Tribunal considered the applicant’s documentary evidence submitted to the Department as follows:

   ·     Applicant’s written statement dated 4 March 2019;

   ·     Confirmation of Enrolment (CoE) from Group Colleges Australia Pty Ltd dated 4 March 2019 for a Bachelor of Business;

   ·     Copy medical letter for an MRI from Doctor Nishant Gupta (Radiodiagnosis) dated 3 November 2017 in the name of Prem Parkash Sharma;

   ·     Copy medical letter from Doctor K.S.Babbar (undated) regarding the hospital admission of Mr Prem Parkesh from 9/04/2018 to 24/04/2018.

   ·     Enrolment verification issued by Langara College Vancouver on 2 March 2019 for ‘Fall 2018’ and ‘Spring 2019’ in the name of Arunima Sharma;

   ·     Bank account statement dated 14 February 2018 from Scotia Investment account, deposit of 10,000CAD in the name of Miss Arunima Sharma;

   ·     Copy Primary Health Care Medical and Dental Centre Nursing Request, by Doctor Jalal Qamar dated 19 March 2018, in the name of the applicant;

   ·     Copy Laverty Pathology request from Dr Jalal Qamar dated 19 March 2018 in the name of the applicant;

   ·     Official tax invoice and receipt from (unnamed) medical centre dated 20 March 2018 in the name of the applicant for $327.25.

   Applicant’s written response to the Department

6. The applicant provided a response to the NOICC. He explained he had enrolled in IT on the advice of an agent but struggled academically. He said friends suggested he enrol in accounting “as it was possible to get Permanent Residency with an accounting degree and that it was arguably an easier degree than IT.” The applicant then described his health problems and that of his grandfather. He also claimed his sister applied to study in Canada and the applicant’s father spent funds helping her. The applicant’s evidence was that he was unable to pay his university fees “due to my treatment”. The applicant said on his sister’s advice he decided to stay in Australia without enrolment so as not to burden his father and to find a solution to his problems.

7. The applicant states he decided not to study with the goal of permanent residency but for his career. He said he would study a Bachelor of Business with the goal of going back to India to look after his parents and learning skills to help his father’s photography business. The applicant claimed he did not intend to remain unenrolled, but it occurred because of “circumstances that were compelling, compassionate and beyond my control”. He undertook to comply with all visa conditions and requested his student visa not be cancelled.

   The hearing

8. The applicant confirmed he arrived in Australia in February 2016 to study a bachelor’s degree. He had completed high school in India and had been enrolled in a Bachelor of Information Technology (IT) at Federation University. The applicant began with an English course and studied one semester of the degree; however, he did not pass his subjects and submitted he could not keep up with the course.

9. The applicant moved to Kings Own Institute and enrolled in a Bachelor of Accounting. He advised he studied again for one semester but failed. He changed education providers again to Holmes College, also to study a Bachelor of Accounting but failed the exams. The applicant said in January 2018 he travelled to India to visit his parents. He agreed that due to his lack of success in his studies, he should have reconsidered his decision to undertake a degree course.

10. According to the applicant he became ill due to a pancreas condition. He claimed that as a result, he was not able to work, study or pay fees. Also, his sister went to study in Canada which affected his father’s finances. When asked how he supported himself in Australia the applicant claimed his boss gave him an ‘advance’ and he had a roommate who allowed him to stay for free. The applicant said while in Australia he has worked at a 7-Eleven, in a car wash and driving. The applicant reiterated he had not been able to study because of a health condition. The applicant’s submission was that he was treated at home through diet and did not require surgery. He said at the time he was depressed and stayed at home. The Tribunal put it to him that he should have departed Australia if he was not able to study and he agreed that had been a mistake. The applicant conceded he had been aware of the requirement to study while holding a student visa. He said he paid money to an agent and lawyer and could not pay study fees.

11. The applicant advised that he has only completed an English course but still wants to study in Australia. He said his father is upset at his lack of a degree but is prepared to pay for his studies. Regarding career plans the applicant said he still wants to take a degree in accounting. When it was put to him that he had difficulties previously, the applicant said he did not take it seriously then. The applicant submitted his plans are to help his father’s business or get an accounting job.

12. Regarding any compelling reasons for needing to remain in Australia, the applicant said a degree from India would not help and he needs qualifications from Australia. He said otherwise he did not really have a strong reason for needing to stay in Australia but referred to his health condition that he said did not allow him to continue studying. When asked about any hardship that would result from his visa being cancelled the applicant said he would have wasted four years. He stated again that he had not taken the matter seriously before but also that circumstances had also prevented him studying. The applicant said he accepts he made mistakes and indicated the situation was 50/50 due to his fault and to circumstances. The Tribunal explained the legal consequences of cancellation to the applicant. He said his whole career is dependent upon the Tribunal’s decision and that he needed a second chance to prove himself.

13. 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

14. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

    Did the applicant comply with Condition 8202?

15. 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).

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

17. The Departments decision record states that according to the Provider Registration and International Student Management System (PRISMS) the applicant was not enrolled from 4 May 2018 to 4 March 2019. As the applicant was not enrolled in a registered course of study for approximately 10 months, he did not comply with the requirements of condition 8202(2)(a). Therefore, the evidence indicates there are grounds to cancel his visa.

    Consideration of the discretion to cancel the visa

18. 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’.

    ·     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

19. The applicant was granted a student visa based on his enrolment in a Bachelor of IT degree. Following his arrival in Australia the applicant commenced his principal course of study but was not successful academically and did not continue. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

20. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. While the applicant said he did not really have a strong reason why he must stay in Australia, he went on to say he needed to have a degree from Australia as local qualifications carry less weight. The applicant also indicated his father is unhappy about his lack of study progress and completion. The Tribunal considered the applicant’s submissions but is not satisfied he has demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

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

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

22. During the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant said if he is unable to complete his studies, his four years in Australia would be wasted. In his written submission the applicant claimed he now wants to study a Bachelor of Business because his father is an entrepreneur who has a photography business. The applicant said he had previously been advised to study accounting because it could lead to permanent residency, however, he has now decided to study for the benefit of his career in his home country. The Tribunal accepts that since the applicant has not completed a bachelor’s degree as intended, there will be a degree of hardship caused by his visa being cancelled and some weight has been given in his favour in assessing this criterion.

23. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case, are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

24. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for approximately 10 months. The reasons advanced for the gap in study was that the applicant and a relative in India suffered health issues, his father had to pay the cost of his sister’s visa and studies in Canada and he was left unable to pay the fees to continue his education.

25. While the applicant provided medical evidence to support his claims, there is no indication why the applicant was left without funds for his studies when he is required to have health insurance in Australia. In his evidence to the Tribunal the applicant said he did not require surgery or treatment other than home based dietary changes. He said he was also depressed at the time but did not provide evidence of having sought treatment for a mental health issue. The applicant also claimed his father had to pay for his sister’s studies in Canada. Having considered the evidence, the Tribunal accepts the applicant may have faced some challenges in Australia, however, as put forward in evidence to the Department and the Tribunal, they are not adequate reasons for the applicant to stay in Australia while not complying with the conditions of his student visa and failing to study over a long period. The applicant’s evidence indicates he was aware of the requirement to maintain enrolment but chose to remain in Australia in breach of visa conditions. If he was unable to study for health or financial reasons, the applicant should have deferred his studies and returned to his home country until he was in a position to continue his education.

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

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

27. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

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

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

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

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

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

    ·     any other relevant matters

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

    Conclusion

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

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

    DECISION

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

    Wendy Banfield
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder  (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)     the holder is enrolled in a registered course; or

    (b)     in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.