Sharma (Migration)

Sharma (Migration) [2019] AATA 5046 (12 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Neha Sharma
CASE NUMBER:  1811402
HOME AFFAIRS REFERENCE(S):           BCC2018/149861
MEMBER:Joseph Lindsay
DATE:12 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 November 2019 at 2:57pm

CATCHWORDS
MIGRATION – cancellation – Higher Education Sector (Class TU) visa – Subclass 573 (Student) (Temporary) – non-enrolment in registered course – factors for and against cancellation – payment of course fees – death of financial guarantor grandfather – mother’s capacity to pay course fees – husband’s student dependent visa refused – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, criterion 8202(2)(a)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 April 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).
The applicant appeared before the Tribunal via videoconference on 8 November 2019 at 9:30am to give evidence and present arguments.
The applicant has a registered migration agent, but the agent did not attend the hearing. The applicant spoke English and did not require any assistance from an interpreter.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The Tribunal put to the applicant that she had provided a copy of the delegate’s decision record to the Tribunal in her application, and the delegate’s decision noted that the applicant had not been enrolled in a registered course of study since 22 June 2017. The applicant agreed that all of the information in the delegate’s decision record was true and correct.
The applicant admitted she had not been enrolled in a registered course of study since 22 June 2017.
On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 22 June 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.
Consideration of the discretion to cancel the visa
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The circumstances in which the ground for cancellation arose
The Tribunal referred the applicant to the written submission from the applicant’s representative dated 4 November 2019, in which the representative indicated the circumstances in which the ground for cancellation arose concerned the following:
·The applicant was granted the student visa on 7 July 2016.
·When she applied for her student visa, her financial guarantor was her grandfather Mr Girdhari Lal Sharma.
·But after she came to Australia, her grandfather had a heart attack and became very sick and eventually died in June 2019.
·For this reason, she could not manage to pay her fees at that time.
·Before she came to Australia, she got married to Gurinderbir Singh in India.
·Mr Gurinderbir Singh applied for a student dependent visa, and his visa application was refused. For this reason, she was emotionally heartbroken and also couldn’t concentrate on her studies.
The Tribunal noted that the applicant’s representative had provided:
·A letter from Sharma Hospital dated 10 June 2017 in respect to the applicant’s grandfather.
·A letter of overseas student health cover dated 29 November 2016.
·A credit transfer record dated 30 March 2017.
·A death certificate dated 9 July 2019 in respect to the applicant’s grandfather.
·A travel itinerary for the applicant showing her return travel from Australia to India in May 2017.
The Tribunal discussed the above information with the applicant.
The applicant indicated the purpose of providing the letter from Sharma Hospital dated 10 June 2017 in respect to the applicant’s grandfather was to show that her grandfather had health difficulties at that time.
The applicant indicated the purpose of providing the letter of overseas student health cover dated 29 November 2016 was to show that she is married. She married Gurinderbir Singh on 16 July 2016 in India. Gurinderbir Singh was refused his visa in January 2017. Despite this, the applicant decided to stay in Australia because she wanted to study the Bachelor of Business (major in Accounting) at the University of Wollongong.
The applicant indicated the purpose of providing the credit transfer record dated 30 March 2017 was to show that she paid some of her course fees at that time.
The applicant indicated the purpose of providing the death certificate dated 9 July 2019 in respect to the applicant’s grandfather was to show that her grandfather died on 30 June 2019.
The Tribunal spoke with the applicant about when she realised she had financial problems, and she responded she became aware when she returned to India in May 2017 that she had financial problems because none of her family members would help her to pay her course fees. The applicant indicated that even after she was aware (in May 2017) she could not pay her course fees, she returned to Australia knowing she could not pay her course fees and she could not continue with her course. She admitted that she did not complete any of her subjects at all.
The Tribunal asked the applicant whether she had approached her course provider about her situation. In response, she indicated that she did approach her course provider about her situation, but she had no paperwork to show what discussions she had.
The Tribunal asked the applicant whether she spoke to the Department about her circumstances, and she indicated she did not. The applicant indicated that her course provider advised her to resolve the issue through her agent.
The Tribunal put to the applicant that she, as the visa holder, was responsible for complying with the conditions of her visa, to which she agreed that she was responsible.
The Tribunal put to the applicant that she had given a financial guarantee that she could pay for her course fees, and in response she agreed that she had given a financial guarantee that she could pay for her course fees.
The Tribunal asked the applicant about the situation regarding her husband. In response, the applicant confirmed that whilst she remains married to her husband, she wants a divorce. She indicated that at the time she ceased to be enrolled in mid-2017, she was emotionally distressed because her husband was not with her in Australia. However, the applicant then indicated she became distressed because of pressure from her husband’s family, where her husband’s family blamed the applicant for her husband not being able to get a visa to come to Australia. The applicant indicated she no longer feels emotionally heartbroken in relation to her husband and that she wants a divorce.
The Tribunal asked the applicant why she thought she should have a student visa when she knew that she did not have the finances to pay for her course. In response, she indicated she did not have the finances at that time because of her grandfather getting sick and because her in-laws would not financially help her. However, she indicated that her mother would be able to pay for her course fees. The applicant gave evidence that her mother is a single mother who is also supporting the applicant’s sibling, and she has no other financial support available to her. The Tribunal discussed with the applicant the cost of her tuition fees, and she indicated that the course at the University of Wollongong cost thirteen thousand dollars ($13,000) per semester – making the total course cost at seventy eight thousand dollars ($78,000). The Tribunal expressed concern that the applicant may not be able to pay her course fees. The applicant indicated that she would be able to get her mother’s payslips as evidence that her mother could afford the course fees. The Tribunal gave the applicant until close of business on Monday 11 November 2019 to provide any documentation to demonstrate that the applicant could afford to pay the course fees.
As at the time of this decision, the Tribunal has not received any correspondence from the applicant, let alone any documentation to demonstrate that the applicant could afford to pay the course fees.
The applicant also gave evidence that, due to her limited financial means, she wanted to look for a TAFE course (vocational training) instead of a higher education course. When the Tribunal discussed with the applicant that her visa was a higher education sector visa and not a vocational training visa, she then indicated she made enquiries to undertake a cheaper university course that she would be able to afford.
In respect of the above, the Tribunal makes the following findings. The Tribunal accepts:
·The applicant’s grandfather was financially supporting the applicant for her studies in Australia, but he became ill in mid-2017 and as a result he was no longer able to financially support the applicant.
·The applicant was not able to pay her course fees and for that reason she ceased to be enrolled in a registered course of study on 22 June 2017.
·The applicant did speak to her course provider and her agent in India about her circumstances at the time she ceased to be enrolled in a registered course of study on 22 June 2017, but she did not speak to the Department.
·The applicant is married to Gurinderbir Singh but when his visa application was refused and he did not come to Australia to be with her, she was initially heartbroken and could not concentrate on her studies but now she wants a divorce.
The Tribunal accepts that the applicant faced difficult emotional circumstances in respect to her husband – and the Tribunal gives this some weight in the applicant’s favour.
However, a central issue the Tribunal cannot ignore is that the applicant needs to be able to have the financial capacity to pay her course fees. Given the evidence above, the Tribunal is not satisfied that the applicant is reasonably able to pay for her higher education course fees. Accordingly, the Tribunal is not reasonably satisfied that the applicant would be able to comply with the conditions of her student visa, in particular condition 8202. The Tribunal gives high weight against the applicant in this respect.
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 Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
The Tribunal finds that the applicant appears to have complied with her visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal spoke to the applicant about the hardship that may be caused to her if her student visa was cancelled. The applicant indicated that both she and her mother would be disappointed.
The applicant’s main concern was that she thought she would find it hard to get a well-paying job without having an Australian higher education qualification behind her. The applicant indicated that whilst she could undertake a course in India, she would find it hard to get enough money to get a further education in India.
The Tribunal accepts that the applicant would face emotional hardship if her visa was cancelled and gives this some weight. The Tribunal accepts that the applicant and her mother would be disappointed if her visa was cancelled and gives this some weight. The Tribunal accepts that the applicant may find it hard to get a well-paying job without having an Australian higher education qualification behind her and gives this some weight.
The Tribunal accepts these circumstances and overall gives some weight in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
The applicant does not have any dependents on her student visa who would be affected if her student visa was cancelled.
Accordingly, the Tribunal places no weight on this information in the applicant’s favour.
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
The applicant indicated she is aware of the legal consequences of the cancellation of her student visa and she is aware of the three-year exclusion period as a consequence of her student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The applicant indicated that if her student visa was cancelled, she would not remain unlawfully in Australia and she would return to India.
The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of her student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal places low weight on this information in the applicant’s favour.
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
The Tribunal asked the applicant if she feared anything in returning to India. In response she said she did not fear that much, but her husband was not ready to give her a divorce. The applicant expressed her concern that her husband will go to her mother’s house and create a scene, and that her husband might threaten not to give her a divorce.
In consideration of the above, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.
Any other relevant matters
There are no other relevant matters before the Tribunal.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Joseph Lindsay

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.

[2019] AATA 5046

12 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal