Sharma (Migration)

[2020] AATA 1443

Sharma (Migration) [2020] AATA 1443 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shivam Sharma

CASE NUMBER:  1730536

HOME AFFAIRS REFERENCE(S):          BCC2017/3517110

MEMBER:David Thompson

DATE:9 April 2020

PLACE OF DECISION:  Perth

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

Statement made on 09 April 2020 at 4:40 pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – enrolment cancelled for non-commencement –discretion to cancel visa – enrolment and study history – father’s health and applicant’s mental health – enrolment in new courses and continuing study – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 November 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in any course of study between 21 April 2017 and 15 November 2017, and so had breached condition 8202 on his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 9 October 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

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. According to the delegate’s decision record, this was the case between 21 April 2017 and 15 November 2017.

9. This was put to the applicant at hearing. The applicant readily admitted that this was true. On It follows that on the evidence before the Tribunal, the applicant was not enrolled in a registered course between 21 April 2017 and 15 November 2017. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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’.

11. The Tribunal has reached its decision on the basis of the applicant’s evidence at hearing and the following documentary evidence provided to the Tribunal by the applicant:

    a.a copy of the delegate’s decision record dated 28 November 2017;

    b.undated written submissions received by the Tribunal by email on 7 October 2019;

    c.Overseas Student Confirmation of Enrolment (CoE) AFCC0B39, in respect of the applicant’s enrolment in a Graduate Diploma of Management (Learning) offered by Wakefield International Business School between 13 January 2020 and 10 January 2021;

    d.CoE 9B26EF70, in respect of the applicant’s enrolment in an Advanced Diploma of Leadership and Management offered by Australian College of the Professions between 14 May 2018 and 11 November 2019;

    e.a letter from Australian College of the Professions dated 3 October 2019, addressed “To Whom It May Concern”, confirming the applicant’s enrolment in an Advanced Diploma of Leadership and Management with that school;

    f.a letter dated 13 November 2017 from Dr R.K. Sood of Sood Medical Centre, Chandigarh, confirming that the applicant’s father is under his treatment for uncontrolled Type-2 diabetes mellitus;

    g.copies of 2 sets of Dr Sood’s medical notes in relation to the applicant’s father, dated May 2017 and August 2017 respectively;

    h.a copy of a statement of attainment dated 15 November 2017 and issued by Canterbury Business College (CBC) in respect of elements of a Diploma of Business completed by the applicant;

    i.a copy of a letter dated 14 November 2017 from Dr Virginia Figueroa-Tamayo of Plumpton Medical Centre, addressed “To whom it may concern”, regarding the applicant’s medical condition; and

    j.a copy of a letter dated 14 November 2017 from Dr Virginia Figueroa-Tamayo of Plumpton Medical Centre, addressed to Dr Bulent Ada and referring the applicant for an opinion and counselling.

12. The Tribunal has reviewed the Department’s file in relation to this matter. It contains some of the documents listed above, which were resubmitted to the tribunal. It also contains an earlier version of the document mentioned at paragraph 11(b) above and a copy of CoE 93EF8164, in respect of the applicant’s enrolment in an Advanced Diploma of Business offered by Vocational Study Australia between 30 October 2017 and 26 October 2018. Both of those documents were provided by the applicant to the Department, and the Tribunal has taken them into account in reaching its decision. The Tribunal has also relied on a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS), which it obtained prior to hearing.

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

13. The Tribunal finds that the applicant arrived in Australia in late January 2015 under a subclass 573 temporary student visa. At that time he was enrolled in a package of courses, namely, a Diploma of Business and Advanced Diploma of Business at CBC, and a Bachelor of Commerce at the University of Southern Queensland (USQ). He commenced his Diploma of Business on or about 12 January 2015, and finished it on or about 28 June 2015. He then moved on to commence his Advanced Diploma of Business.

14. The applicant gave evidence at hearing that his purpose in coming to Australia was to study the package of courses mentioned in the preceding paragraph. There is no evidence to the contrary, and indeed the findings made in the preceding paragraph support his evidence. The Tribunal finds that the applicant’s purpose in coming to Australia was indeed to study. The Tribunal gives this some weight in the applicant’s favour.

15. The applicant stated at hearing that his purpose in staying in Australia after his CoE for his Bachelor of Commerce was cancelled on 21 April 2017 (the date upon which the applicant fell into breach of condition 8202) was to continue and complete his studies so that he return to his home country and help his father in his father glass supply business. The applicant submitted that his record of study after 15 November 2017 corroborated his claim. Assessing the applicant’s claim requires, therefore, further consideration of the evidence as to his course of studies.

16. The applicant stated at hearing that his Advanced Diploma of Business was a two part course, and that he completed the first part but had his CoE for the second part cancelled due to insufficient attendance at classes. The applicant’s PRISMS record, which the Tribunal put to him at hearing pursuant to s.359AA of the Act as regards the whole course of his studies in Australia, does not contain any mention of the cancellation of that CoE. The record lists two separate CoEs for the Advanced Diploma of Business at CBC, but states in each case that the course was finished. In the case of the second CoE, that may mean nothing more than that the course came to an end regardless of the applicant’s performance or results.

17. However, the PRISMS record then mentions a third CoE for an Advanced Diploma of Business. When questioned about this, the applicant stated that changes to the course structure resulted in it becoming a three-part course. The Tribunal does not accept this. The CoE for the third Advanced Diploma of Business entry in the PRISMS record is in fact that mentioned at paragraph 12 above. That CoE (93EF8164) was issued by a completely different institution, known as Vocational Study Australia. Further, it was issued on 16 November 2017, just 3 days after the date upon which the Department (as the delegate noted) issued its notice of intention to consider cancellation (NOICC) to the applicant. Further, PRISMS shows that that CoE 93EF8164 was cancelled at some point, although it does not give a date.

18. On this evidence, it would be open to the Tribunal to reject the applicant’s evidence that his Advanced Diploma of Business became a three-part course. It would also be open to the Tribunal to reject the applicant’s evidence that the CoE for part two of his Advanced Diploma of Business was cancelled, and to infer that the applicant enrolled in the Advanced Diploma of Business at Vocational Study Australia in an attempt to avoid cancellation of his visa rather than because his purpose in staying in Australia once the CoE for his Bachelor of Commerce was cancelled was to continue his studies. The Tribunal does reject that evidence, makes that inference, and finds accordingly. These matters weigh strongly against the applicant.

19. However, the Tribunal accepts that it is the case that the applicant, as he stated at hearing, went on to enrol in an Advanced Diploma of Leadership and Management at Australian College of the Professions. The Tribunal has obtained an updated PRISMS record in respect of the applicant in the course of preparing these reasons, and notes that the applicant is now studying for his Graduate Diploma of Management at Wakefield International Business School. That detail was not noted on the PRISMS record originally obtained, probably because the relevant CoE (see paragraph 12 above) was issued on the same day the original PRISMS record was obtained. This detail has not, therefore, been put to the applicant pursuant to s.359AA, but it is consistent with the applicant’s evidence at hearing and is not information that would be a reason, or part of a reason, for affirming the delegate’s decision. The Tribunal has not, therefore, sought the applicant’s comments on or response to this detail before making its decision.

20. The enrolments referred to in paragraph 19 above give some support to the applicant’s claim that his purpose in staying in Australia is to study. However, in light of the findings made in paragraph 18 above, the Tribunal finds that although it is now the applicant’s purpose to stay in Australia to study, that purpose was formed under threat of cancellation, and that it ameliorates the effect of the findings made in paragraph 18 above only slightly.

21. There is no evidence before the Tribunal suggesting that the applicant has any compelling need to stay in Australia, other than to the extent discussed in respect of hardship below. The Tribunal gives this factor no weight, either for or against the applicant.

    The circumstances in which the ground of cancellation arose

22. The applicant submitted at hearing that the ground of cancellation arose because he was suffering from depression, some symptoms of which were disturbed sleep and an inability to concentrate.

23. The applicant’s evidence in this regard was that in or about June 2017 his father suffered a worsening of an already existing medical condition, diabetes, and was seriously ill. The applicant wished to return home to666 see his father but his family would not allow him to, instead requiring him to attend to his studies. The applicant said that he started to suffer from broken sleep and general mental stress, and became depressed and unable to concentrate on his studies. He went on to give evidence that after some months of this he sought medical help, and obtained treatment which involved counselling and stress management programmes. The applicant’s father’s condition improved in or around October 2017. At that point the applicant’s mental state improved also, to the extent that he could recommence his studies.

24. The applicant also submitted that he had received no warning from USQ that his CoE might be cancelled. This was advanced as a further circumstance giving rise to his breach of visa condition.

25. The applicant provided a letter from his father’s doctor and copies of medical notes in support of his evidence as to his father’s illness (the documents mentioned in paragraph 11(f) and (g) above). That letter states that the applicant’s father was under Dr Sood’s care for “Type-2 DM (uncontrolled)” (the Tribunal understands this to mean Type-2 diabetes mellitus (uncontrolled)) from 30 May 2017 to the date of the letter, 13 November 2017. The Tribunal accepts this evidence and finds that the applicant’s father was under treatment for the condition mentioned from 30 May 2017 to 13 November 2017. However, the Tribunal has difficulty accepting that the worsening of the applicant’s father’s illness was the cause of his breach of visa condition. The delegate found, and the applicant admitted, that the breach dated from 21 April 2017. However, that was the date upon which USQ cancelled the applicant’s CoE for his Bachelor of Commerce course. It did so, according to PRISMS, on the basis that he had not commenced his studies. The applicant confirmed at hearing that he had not commenced that course – his evidence was that he had not completed the second part of his Advanced Diploma of Business, which was part of his pathway to study at USQ. The applicant’s PRISMS record also states that the applicant’s USQ course was due to commence on 27 February 2017. The Tribunal finds that, contrary to the applicant’s submission, it was the applicant’s failure to commence that course on or around that date that was the immediate cause of the cancellation of the applicant’s CoE and of his breach of condition on 21 April 2017.

    The extent of compliance with visa conditions

26. The applicant’s breach of condition 8202 is an important aspect of the extent of his compliance with his visa conditions. That breach lasted for some 7 months. This is a significant period of time. A breach of that length would, in the absence of ameliorating factors, weigh heavily against the applicant.

27. In this case, the applicant has given evidence that he suffered from depression, which included disturbed sleep and an inability to concentrate amongst its symptoms. As has been stated, he gave evidence at hearing that this condition was caused by worry and stress over his father’s medical condition. For reasons give above, this condition cannot be considered the cause of his breach. However, if the Tribunal accepted the applicant’s evidence it would be relevant to the issue of the extent of his breach, and so to the issue of the extent of compliance with his visa conditions.

28. The applicant has provided copies of two letters from his own doctor, Dr Virginia Figueroa-Tamayo of the Plumpton Medical Centre, both dated 14 November 2017. The first of those letters states “This is to certify that Shivam Sharma has been seen here today since he had been depressed with low energy and not sleeping well since 15 April 2017 up to the 10 October 2017. And thus, he left his job in August, 2017.” The second of those letters is addressed to Dr Bulent Ada, is a referral opinion and management. It states that the applicant has been depressed and asks Dr Bulent to see him for counselling. The Tribunal has viewed Mr Bulent’s LinkedIn page and notes that he practices as a clinical psychologist. There is no indication that he holds any qualification entitling him to be addressed as ‘Doctor’, and no indication that he claims to hold any such qualification. In any event, the applicant’s evidence was that he did not see Mr Bulent, but rather sought treatment from a practitioner who spoke his own language. There is no evidence before the Tribunal as to the identity of that practitioner, or as to the nature or duration of any treatment or therapy he or she provided to the applicant.

29. The applicant’s evidence at hearing was that he first consulted Dr Figueroa-Tamayo in July or August 2017. Dr Figueroa-Tamayo’s letters do not confirm this – they say nothing about any previous consultations. Further, it is difficult to believe that Dr Figueroa-Tamayo would refer the applicant to a clinical psychologist as late as 14 November 2017 if she first saw him for a depressive condition as early as July or August 2017. The Tribunal notes that, as stated in the delegate’s decision record, Dr Figueroa-Tamayo’s letters are dated the day after the applicant received the Department’s NOICC. Taken with the applicant’s evidence at hearing that his father’s condition had improved by October 2017, this strongly suggests that the purpose of the applicant’s visit to Dr Figueroa-Tamayo on 14 November 2017 was primarily to seek evidence to use in his response to the Department’s NOICC rather than to seek treatment. The Tribunal finds accordingly.

30. That finding does not carry with it a finding that the applicant’s visit to Dr Figueroa-Tamayo on 14 November 2017 was the applicant’s first visit to that doctor. It is quite possible that he saw her on earlier dates for other complaints. Nor does it carry with it a finding that the applicant suffered no perturbation at all as a result of his father’s medical condition. It does mean, however, that the Tribunal only gives the applicant’s evidence about his own medical condition slight weight as a factor ameliorating the extent of his breach.

31. Apart from the applicant’s breach of condition 8202, there is no evidence before the Tribunal suggesting that the applicant has engaged in any other breach of visa condition. The Tribunal gives this circumstance a little weight in the applicant’s favour.

    The degree of hardship that may be caused if the applicant’s visa remains cancelled

32. The applicant was asked at hearing whether affirmation of the delegate’s decision would cause him any hardship. His evidence in response that question was that he would have to return home in shame, having failed to obtain his degree after 5 years in Australia, and that he would face societal pressure as a result. The applicant also stated that, conscious of having wasted 5 years of his life, he may end up in depression again.

33. On the first point, the Tribunal accepts that the applicant may suffer some hardship of that kind. He did not, however, give any evidence suggesting that, if he returned to his home country without finishing his current courses, he would be unable to carry out his aim of helping his father in his business. On the second point, the Tribunal finds that the applicant may suffer further mental perturbation if his visa remains cancelled. Given the comments made above regarding the extent of the applicant’s evidence of having suffered such a condition previously, the Tribunal is in no position to come to any concluded view on the likelihood of this, or of its seriousness. The Tribunal notes, however, that there is no evidence before it suggesting that the applicant would be unable to find effective treatment for depression (if he does come to suffer from it) in his home country.

1. Taking these considerations together, the Tribunal gives this factor some weight in the applicant’s favour.

   The past and present behaviour of the applicant towards the Department

2. There is no evidence before the Tribunal suggesting that the applicant has been uncooperative in his dealings with the Department. The Tribunal gives this a little weight in the applicant’s favour.

   Whether there would be consequential cancellations under s.140

3. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa would result in the cancellation of any other person’s visa pursuant to s.140 of the Act. The Tribunal gives this factor no weight, either for or against the applicant.

   Whether cancellation of the applicant’s visa would carry mandatory legal consequences

4. If the applicant’s visa remains cancelled, he may become an unlawful non-citizen liable to be detained under s.189 of the Act, and to removal from Australia under s.198 of the Act if he does not depart voluntarily. He would also be subject to s.48 of the Act, which would limit the classes of visa for which he would be entitled to apply whilst in the migration zone. Cancellation would also mean that the applicant would be unable to satisfy public interest criterion 4013 for a period of up to 3 years, which would limit his entitlement to be granted a further student visa. The Tribunal accepts that these mandatory legal consequences could prove detrimental to the applicant, but observes that they are consequences provided for under the Act. The Tribunal therefore gives this factor only very slight weight in the applicant’s favour.

   Whether cancellation of the applicant’s visa would result in a breach of Australia’s international obligations

5. There is no evidence before the Tribunal indicating or suggesting that cancellation of the applicant’s visa would result in a breach of any of Australia’s international obligations. The Tribunal gives this factor no weight, either for or against the applicant.

   Any other relevant matters

6. No other relevant matter arises on the evidence before the Tribunal.

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

   DECISION

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

   David Thompson
   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.