Sharma (Migration)

[2020] AATA 1428

Sharma (Migration) [2020] AATA 1428 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vivek Sharma

CASE NUMBER:  1805793

HOME AFFAIRS REFERENCE(S):          BCC2017/3624887

MEMBER:Stephen Conwell

DATE:21 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 April 2020 at 1:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – enrolment cancelled for non-commencement – discretion to cancel visa – administrative dispute with college about completion of diploma and enrolment in advanced diploma – father’s financial difficulties – mother’s health – applicant’s mental health – enrolment in degree course at different college – relationship with another temporary visa holder – application under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 February 2018 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 breached condition 8202(2)(a) – enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal via video-link on 26 February 2020 to give evidence and present arguments.

4. The applicant provided the Tribunal with a copy of the notification and delegate’s decision to cancel the visa.

5. 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

6. 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?

7. 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).

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

9. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 4 June 2014. He arrived in Australia shortly thereafter on 18 June 2014. By Notice of Intention to Consider Cancellation (NOICC) dated 5 December 2017, the applicant was advised by the Department that information on the Provider Registration and International Student Management System (PRISMS) indicated his enrolment in a Bachelor of Business (Information Systems Management) was cancelled on 20 March 2017 due to non-commencement of studies. The applicant was advised it appeared he was in breach of condition 8202(2)(a) – and that his visa may be cancelled under s.116(1)(b) of the Act.

10. The applicant provided a written response to the NOICC on 19 December 2017 in which he did  disputed there were grounds for cancelling his visa, providing the following arguments and documents:

    ·       his explanation of the circumstances which led to the cancellation of his enrolment in the Bachelor of Business and his future intentions;

    ·       his assertion that he was, and remains a genuine student who wishes to complete his studies in Australia;

    ·       initial Study Plan at Zenith Business Academy;

    ·       revised Study Plan at Zenith Business Academy;

    ·       evidence of completed Certificate IV in Business Administration, issued 27 October 2016;

    ·       a psychological counselling report dated 14 December 2017 from registered psychologist, Stephen Sutton;

    ·       a medical report for the visa holder's mother, dated 10 March 2017;

    ·       a letter from the visa holder's father dated 15 December 2017;

    ·       an offer and acceptance of enrolment letter from Group Colleges Australia, dated 12 November 2017;

    ·       A Confirmation of Enrolment (COE) for enrolment in the Bachelor of Business with Group Colleges Australia (GCA), commencing 15 January 2018.

11. The applicant provided the Tribunal with copies of the same evidence he had submitted to the Department. He also provided the Tribunal with a copy of his Bridging visa E which allows him to work up to 40 hours a fortnight and grants him unlimited study rights.

12. In his oral evidence the applicant claimed that he never ceased his studies, but rather having completed 8 out of 10 units in his diploma course, he was unable to enrol in the advanced diploma. The applicant petitioned his college, Zenith Business Academy (ZBA) to issue him a revised COE to permit his enrolment in the advanced diploma studies, whilst also re-sitting for the two diploma units which he had previously failed. Instead his college required him to enrol in a language course in the interim and postpone his enrolment in the advanced diploma studies for a later semester.

13. The applicant claims that ZBA did not issue him with a revised COE, but instead cancelled his existing COE. He also claims that ZBA were slow to respond to his request for his academic transcripts which prevented him from enrolling with a different educational provider until 12 November 2017, when he received an offer letter for a Bachelor of Business from Group Colleges Australia. He claims that for financial reasons ZBA wanted to re-admit him as a ‘new’ student and have him study what he believed to be an unnecessary language course. He claims that in telephone discussions with ZBA office staff the implications of his non-enrolment for his visa status was often raised, which he found to be intimidatory in tone.

14. The applicant received the offer from GCA prior to the issue of the NOICC; he enrolled at GCA and completed an accounting unit in mid-2018. Since his visa was cancelled on 26 February 2018 he has not studied since completing the accounting unit at GCA.  Since cancellation of his visa, he has spent his time working part-time in a pizza restaurant on semi-regular shift work, keeping within his Bridging visa work limitations. He has been awaiting the Tribunal hearing. He attends gym regularly, which he enjoys.  He has also been in a serious relationship for the past two years and his partner has supported him financially and emotionally during this time. He is hopeful of continuing his studies in Australia and then applying for work rights and possibly for permanent residency.

15. The applicant confirmed in oral evidence:

    ·       that his purpose in travelling to and stay in Australia was to study;

    ·       his sister and parents are in India; he has a cousin in Melbourne whom he stayed with on his arrival in Australia however he did not feel welcome there which led him to relocating to Sydney to pursue his studies in that city.

    ·      His father is a small property developer who has encountered business problems with a former business partner, leading to financial stress and legal proceedings. His father’s financial problems and his mother’s health issues were unwelcome distractions to his studies;

    ·       He consulted psychologist Mr Stephen Sutton on one occasion for stress; the psychological report dated 14 December 2017 was prepared following that single consultation.

    ·      He took several months longer to complete his Certificate IV studies than expected as he struggled with adjusting to life as an overseas student;

    ·      He believes that he has paid more for his studies than required and that he has been taken advantage of by his previous educational provider, ZBA.

16. The Tribunal takes note of the applicant’s claims to have engaged in an altercation with a teacher and to have been in a dispute with his educational provider, ZBA. However no evidence has been tendered in support of such claims and the Tribunal therefore gives little weight to them.

17. The psychological report dated 14 December 2017 notes that it was prepared after a single interview for psychological assessment on the same date. The report is a summary of the applicant’s history since arriving in Australia and his self-assessment of his emotional response to the challenges of adapting to living and studying overseas.  The applicant claims that during his diploma studies a clash with a particular teacher in late 2016 upset him and together with his mother suffering from chest pains and hypertension at around the same time left him “seriously stressed and depressed that he felt too overwhelmed to do anything at all – and he failed to get around to enrolling in anything for the rest of 2017.” The report notes that the applicant’s mother was briefly hospitalised in February/March 2017 where she responded to treatment and has been in relatively good health since that time. The report notes that at the time of consultation the applicant claimed to be suffering from only mild symptoms for stress, anxiety and depression – due to his improved situation and condition.

18. The Tribunal has some sympathy for the applicant’s concern for his mother’s poor health in early 2017 however having considered the psychologist report in totality, the Tribunal places little weight on it since it is based on the applicant’s self-reporting following a single consultation. That consultation came about after he had been served with a NOICC from the Department. Much of the information contained in the report relates to the applicant’s self-assessment and self-reporting which, in the Tribunal’s view, is affected by the applicant’s concerns about the possible cancellation of his visa.

19. Although the applicant disputes there are grounds for cancellation of his visa, on the evidence before it the Tribunal is satisfied that the applicant was not enrolled in a registered course from 20 March – 19 December 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

20. 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. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    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

21. The applicant acknowledges that his intended purpose of travel to Australia was to study towards a Bachelor of Business (Information Systems Management) via a package of courses.

22. The Tribunal finds that the applicant was not enrolled in a registered course of study for over eight months in breach of visa condition 8202. The Tribunal considers the applicant’s period of non-enrolment in a registered course of study to be a serious breach of a visa condition.  The Tribunal gives this factor considerable weight in favour of the visa being cancelled.

    The extent of compliance with visa conditions

23. The applicant was in breach of condition 8202 for a considerable period of time, exceeding eight months. The Tribunal views this breach of condition to be serious, because one of the primary reasons for holding a Student visa is to be enrolled and to study, and the applicant admits to not being enrolled for an extended period of time.  The Tribunal therefore gives this factor considerable weight towards the visa being cancelled.

24. According to the evidence, the applicant has not completed any course of study at diploma level or at the higher education level, the level of study for which the applicant’s visa was granted.

25. On the basis of the foregoing evidence, the Tribunal is not satisfied the applicant achieved a reasonable degree of compliance with the study purpose and conditions of the Student visa. The foregoing considerations weigh in favour of cancellation of the visa.

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

26. The applicant claims that he is keen to finish his education as quickly as he can and to make his parents proud [of him].  His father writes, in a letter dated 13 December 2017, that he is also keen for the applicant to complete his studies however the family’s financial difficulties earlier that year prevented him from being able to finance the applicant’s course fees. The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa.

27. The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of his family a degree of hardship sufficient to persuade the Tribunal to give this consideration some weight in favour of exercising its discretion to set aside cancellation of the visa.

28. As previously noted, the Tribunal places little weight on the psychologist report because it is based on the applicant’s self-reporting following a single consultation. Further, that consultation took place after the applicant had been served with a NOICC and it is the applicant’s fear of cancellation of his visa which is likely to have motivated him to seek the consultation rather than any concerns over cessation of his studies.

29. The Tribunal is not satisfied, on the evidence before it, that members of the applicant’s family, or the applicant himself, would suffer a degree of emotional, psychological or psychiatric hardship that would weigh in favour of not cancelling the visa.

    Circumstances in which ground of cancellation arose

30. The circumstances in which the ground of cancellation arose are set out earlier in this decision. The applicant claims that cancellation of his enrolment in his bachelor studies arose through an administrative dispute with ZBA college regarding his diploma studies and the stress of this dispute was exacerbated by his concern over his mother’s ill-health at around the same time. His father’s letter suggests that financial difficulties confronting the family were also a factor leading to cancellation of the applicant’s study visa.

31. Having regard to the circumstances in which the applicant’s visa was cancelled, the Tribunal is not satisfied that there were extenuating circumstances out of the applicant's control for the failure to be enrolled from 20 March 2017 to 19 December 2017. The Tribunal is of the view that from this point the applicant ceased to be a genuine student as he could not fulfil the very purpose for his presence in Australia and for his visa.

32. The applicant was aware that remaining enrolled in a registered course of study was a condition of his visa and it was his responsibility to ensure that he complied with the conditions of his visa. The Tribunal therefore gives this factor considerable weight in favour of cancellation of the visa.

    Past and present behaviour of the visa holder towards the department

33. According to the decision record, there was no evidence that the applicant had been unco-operative towards the Department. The Tribunal give this some little weight in favour of its discretion to set aside cancellation of the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

34. If the applicant’s visa is cancelled, he will be given a time limited period in which he may make plans to leave Australia and he will be limited in his ability to apply for another visa. The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this factor minimal weight in favour of its discretion to set aside cancellation of the visa.

    whether there would be consequential cancellations under s.140

35. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

    Whether any international obligations would be breached as a result of the cancellation

36. In this case it does not appear that this consideration is relevant and the applicant has not made any claims which would relate to this consideration.

    Any other relevant matters

37. The applicant advised the Tribunal that he has been in a relationship of over two years with a fellow overseas student who currently remains in Australia on a post-graduate work visa.  He wishes to remain in Australia to complete his studies and continue this personal relationship. He also wishes to pursue a similar path to that of his girlfriend by obtaining work experience onshore and thereafter he hopes to apply for permanent residency. 

38. The applicant's partner did not appear at the hearing nor is there any corroborating evidence concerning the relationship before the Tribunal. The applicant advised that his girlfriend is also an Indian national who is currently in Australia on a temporary work visa.  The Tribunal accepts that the applicant will suffer some emotional stress if his visa is cancelled as this would result in a temporary separation from his girlfriend whilst she completes her work experience onshore. However upon expiry of her temporary work visa she would be required to return to India unless she decides at the time to pursue some other migration avenue.

39. The Tribunal finds that the applicant’s relationship with his girlfriend is a motivating factor for his desire to remain in Australia. The applicant has remained onshore for an extended period of time for purposes other than to undertake study and achieve an educational outcome. This is not in line with the Student visa program. An applicant for a Student visa is expected to enrol in a registered course of study and progress academically. A Student visa is not a vehicle to gain permanent residence in Australia.

40. At the time of decision, the applicant and his girlfriend are both citizens of India.  Accordingly, the Tribunal gives this factor only minimal weight in favour of exercising its discretion to set aside cancellation of the visa.

41. The Tribunal finds that there are no other relevant matters.

42. As noted above, the applicant remained unenrolled for a period exceeding eight months in breach of his visa conditions. The Tribunal has weighed up the various matters for consideration in the exercise of the discretion but finds that they provide insufficient weight in favour of exercising its discretion to set aside cancellation of the visa.

    Summary

43. The Tribunal is mindful of the lengthy period of non-compliance and having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to not cancel the visa.

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

   DECISION

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

   Stephen Conwell
   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.