Sharma (Migration)

[2019] AATA 6131

Sharma (Migration) [2019] AATA 6131 (15 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunny Sharma

CASE NUMBER:  1822125

HOME AFFAIRS REFERENCE(S):         BCC2018/1082116

MEMBER:Dominic Triaca

DATE:15 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 October 2019 at 4:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – falling out with relative providing financial support – unable to pay course fees – lack of motivation to study – lack of steps taken to resolve financial or enrolment situations – decision under review affirmed

LEGISLATION

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

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

CASE

Boettcher v Driscoll [2014] SASC 86

de Angelis v de Angelis [2003] VSC 432

Dimic v Djekovic [2014] NSWSC 1502

Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 a registered course and therefore breached condition 8202 of 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 30 May 2019 to give evidence and present arguments. 

4. 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

5. 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).

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

7. The delegate’s finding was based on a report from the Provider Registration and International Student Management System (PRISMS) that stated the applicant had not been enrolled in a registered course of full time study since 27 July 2017. The delegate identified the relevant period from 27 July 2017 to 23 July 2018 as being the period in which the applicant was not enrolled in a registered course of study. This amounted to approximately 12 months during which the applicant was in continuous breach of the conditions of his visa.

8. In his oral evidence before the Tribunal, the applicant confirmed the delegate’s decision in relation to the period in which he was not enrolled in a registered course of study was true and correct. He had not been enrolled in a registered course of study since 27 July 2017.

9. Accordingly, the Tribunal is satisfied that het applicant was not enrolled in a registered course of study for the period 27 July 2017 to 23 July 2018 and so finds that the applicant was in continuous breach of condition 8202(2) of his visa for a period of approximately 12 months from 27 July 2017.

   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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    Applicant’s Evidence

11. The applicant is a 29 year old citizen of India. He arrived in Australia in January 2015 having been granted a Student Visa and enrolled to study a Masters of Professional Accounting at Latrobe University.

12. At the time of his arrival in Australia, he held a Bachelor of Commerce from Mumbai University.

13. He says that after he arrived in Australia his family fell out with his Uncle. He had anticipated his Uncle would financially support him during his studies, however this left him without the level of financial support was expecting.

14. Due to his financial problems, he was unable to pay his course fees and this led to the cancellation of his CoE.

15. He found La Trobe was too expensive and attempted to transfer to Holmes but he remained unable to pay the fees.

16. He did pay approximately 50% of his course fees, but by this stage the College insisted on the course fees being paid in full before granting him a CoE. He was unable to pay the fees. He did receive subsequent letters of offer but did not actually enrol in further stud; Emails from an Education Consultant; Receipts from Holmes College; email from Holmes Institute dated 29 August 2017.

17. His financial problems meant that he was unable to concentrate on studies and this effected his academic performance.

18. He has worked in a restaurant approximately 20 hours per week and has done so throughout his time in Australia.

19. Since the cancellation of his CoE, he has not studied or been enrolled to study. He has continued to work in his part time employment.

20. He was unable to defer his course due to his non-payment of fees.

21. At the conclusion of the hearing, the applicant provided further documentation that was received by the Tribunal on 3 June 2019. The Tribunal has read and had regard to this documentation including email to the Tribunal, a copy of email from Holmes in November 2017, Letter of Offer from Holmes Institute dated 13 December 2017.

22. Notwithstanding that the applicant’s financial problems appear to have a created a situation in which his enrolment was cancelled due to non-payment of fees and he has been unable to rectify this since 2017, he now states that if his visa is not cancelled he will obtain a bank loan from an Indian Bank in order to pay his course fees.

23. The Department sent the applicant a written Notice of Intention to Consider Cancellation (NOICC) on 18 June 2018. The applicant responded in writing to that NOICC by email dated 22 June 2018 (applicant’s response). The applicant’s response is transcribed in the delegate’s decision and the Tribunal has read and had regard to the applicant’s response.

24. The Tribunal notes that the majority of the further documentation provided to the Tribunal by the applicant after the hearing on 3 June 2019 had been previously provided to the Tribunal or the Department including the email from Holmes College to the applicant and a copy of the Letter of Offer dated 13 December 2017 from Holmes Institute.

    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

25. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204. Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

26. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said:

    “The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’.“

27. “Need” is a relative concept.[1]  It has been described as different from “want”. Need has been said to be a more flexible word than it may first appear. “In need of” plainly means more than want, but if falls far short of “cannot survive without.”[2]  Need and want are not interchangeable.[3]

    [1] Dimic v Djekovic [2014] NSWSC 1502 per Hallen J at [111]; de Angelis v de Angelis [2003] VSC 432 per Dodds Streeton J, at [45];

    [2] R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808 at [54]

    [3] Boettcher v Driscoll (2014) SASC 86 at [41] per David J.

28. The Tribunal accepts that the applicant’s initial purpose of travel to Australia was to study and that he enrolled in a registered course in accordance with that purpose. However, it is apparent on the applicant’s evidence that his purpose evolved quite quickly as he did not demonstrate any academic progress in Australia and he did not pay all of the required fees.

29. Accordingly, the Tribunal does not consider that the applicant’s purpose of staying in Australia was study from some point in 2017.

30. The applicant stated that he would like to return to study a Masters of Professional Accounting. He has a letter of offer that states the cost of this course is $23,700. The Tribunal questioned the applicant on how he would be able to pay these fees having regard to the financial problems he has suffered in the past. The applicant‘s evidence was that he would obtain a bank loan from India in order to pay his fees. Absent any documentary evidence to support this proposition, the Tribunal does not consider it likely the applicant would be in a position to obtain a loan of this nature. It stands to reason that if finance were available to him, he would have made such an arrangement when he was his financial problems first arose in 2017.

31. The Tribunal also considers it is unlikely the applicant would return to study in any meaningful way having regard to the fact he has made no academic progress since arriving in Australia.

32. Having regard to all the evidence before the Tribunal, the Tribunal does not consider the applicant has demonstrated a compelling need to travel or stay in Australia. Accordingly, the Tribunal gives only marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions.

33. The applicant confirmed that he was not enrolled in a registered course of study from 27 July 2017 until the cancellation of his student visa 23 June 2018, being a period of approximately 12 months. This was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs towards the cancelling of the visa unless the Tribunal accepts the reasons for non- enrolment.

34. In his evidence, the applicant stated reasons for his non enrolment is the result of his family’s financial problems which created a situation in which he did not have the level of financial support he had anticipated.

35. The Tribunal considers, having reviewed the applicant’s evidence, that whilst he may have had some financial problems to contend with in Australia, he also appears to have had a distinct lack of motivation for study over an extended period of time.

36. The Tribunal found the applicant’s evidence in relation to his financial difficulties generalised and lacking in detail. The Tribunal accepts he may have suffered some financial difficulties, but does not accept financial issues caused his breach or that his breach was caused by issues outside his control. It is also reasonable to expect that a student in his late 20s would take responsibility for meeting the financial requirements of this course, and if he found himself unable to do so, take steps to alleviate the situation by either deferring his studies or leaving Australia until such time that he was in a position to resume his studies. The applicant took no such steps. Instead, he chose to remain in Australia for a year, on a student visa, without studying or taking any meaningful steps to have resolve the situation.

37. The Tribunal has regard to the email of Holmes Institute that was provided to the Tribunal by the applicant on 3 June 2019 and also referred to in the delegate’s decision. It states, the student has been enrolled in 2016 but the enrolment was cancelled at the end of 2016. He requested readmission for Trimester 3 2017 commencing November 6. Student did not commence at this time and later requested a later enrolment on 12 December 2017. He did not participate in the trimester and has not been seen since.

38. Whilst the applicant’s evidence was he did pay some fees, it is apparent that he never paid sufficient fees to enable him to obtain a confirmation of enrolment after the cancellation of his CoE in July 2017. Having regard to the email from Holmes Institute referred to above, the Tribunal considers that the applicant did not take any meaningful steps to resolve his situation following cancellation of the student visa in 2017 and this weighs against the application.

39. The Tribunal considers the applicant’s behaviour since arriving in Australia demonstrates a lack of commitment to his studies and he did not satisfactorily explain his failure to maintain his enrolment in a registered course or his failure to remedy that situation and the Tribunal gives this factor weight in favour of cancelling the student visa.

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

40. The Tribunal accepts that returning to India without the qualifications he sought to achieve may cause some stress and anxiety and I accept that the applicant may suffer some degree of hardship if the visa remains cancelled. However, the evidence in relation to hardship falls well short of establishing any serious or significant hardship and I give this minimal weight towards not cancelling the visa.

    Past and present behaviour of the visa holder towards the department.

41. The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

    Whether there would be any consequential cancellations under s 140

42. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled 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, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

43. The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.

44. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

45. The Tribunal considers these are the intended consequences of the legislation and the Tribunal gives this factor minimal weight against cancelling the visa.

    Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation.

46. The circumstances of the case are not such as to engage Australia’s international obligations.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

47. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters.

48. The applicant’s evidence was that his financial issues left him unable to concentrate on his studies. I give this issue minimal weight noting that the applicant managed to continue to work throughout his period of non-enrolment and he there is no evidence he ever sought treatment for any issues involving his lack of concentration.

49. There appear to be no other relevant matters of significance in relation to the present application for review.

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

    DECISION

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

    D. Triaca
    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.