Sharma (Migration)

[2019] AATA 5994

Sharma (Migration) [2019] AATA 5994 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Vishal Sharma

CASE NUMBER:  1920358

HOME AFFAIRS REFERENCE(S):     BCC2019/1472624

MEMBERS:Dr Jason Harkess

DATE:15 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 15 August 2019 at 4:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Diploma of Building and Construction – not enrolled in registered course for more than 12 months – enrolment cancelled by provider – non-commencement of studies – illness in family – emotional turmoil – worked while continuing to breach visa condition – failed to complete Bachelor’s course on previous visa – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 17 July 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted 24 October 2017 with an original expiry date of 15 March 2021, providing for approximately 3 years 5 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Diploma of Building and Construction at Western Institute of Technology (which he had commenced under his first student visa), following which he would enrol in and successfully complete a Bachelor of Business at Stotts College.

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Tribunal convened a hearing to consider the merits of the Applicant’s case on 15 August 2019. The Applicant appeared at the hearing to give evidence and present arguments. He was assisted by his registered migration agent, Mr Navneet Singh

6. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa requires that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 21 May 2018 to 28 May 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 12 months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously been enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider, Stotts College, had cancelled his enrolment in the Bachelor of Business course on 21 May 2018 due to the Applicant not commencing his studies.

4. The Department of Home Affairs wrote to the Applicant on 22 May 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant responded to the NOICC in writing on two separate occasions, 29 May 2019 and 11 July 2019, respectively (collectively, ‘the NOICC response’). In that response, the Applicant did not dispute that he had breached Condition 8202 of his visa for the period identified by the delegate. At the hearing before the Tribunal, the Applicant also conceded in evidence that he was in breach of his visa for the period alleged.

6. On the evidence, the Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of his student visa for the period of time that was alleged.

Consideration of Discretion to Cancel Visa

1. 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 the Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (‘PAM3’, ‘General Visa Cancellation Powers’). The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

1. In his NOICC response, the Applicant referred to the fact that he had gone through a very hard time from an early age. He stated that his father died when he was only 15 years old. He has two sisters, and so his mother was left to bring her children up as a single parent. The Applicant stated that his mother was very resilient in this respect and managed to bring up her children ‘like a warrior’. The Applicant is evidently very appreciative of his mother’s efforts in this regard and the Tribunal accepts that he has a close relationship with her. He attributes his current situation, as being able to come to Australia and further his education, to his mother’s efforts.

2. It is within this context that the Applicant proceeded to highlight to the delegate the cause of his cessation in studying and consequential breach of Condition 8202. He stated that his mother began to have health issues in 2016. At this point in time, the Applicant was already residing in Australia as a student on the basis of a previous Subclass 573 student visa having been granted. The Applicant’s mother lives alone in India. Her health issues included diabetes and heart complications. Her health began to deteriorate further in 2017 when she had to undergo surgery for removal of tumour on her left breast. The Applicant substantiated this claim by providing medical reports. The Tribunal accepts this evidence.

3. Following the Applicant’s mother having surgery in December 2017, the Applicant stated that he could not focus on anything due to his mother still being in a state of post-surgery recovery. The Applicant referred to the painful memories of losing his father when he was only 15 years old. He said that they started to resurface and were clouding his mind. He feared he would lose his mother. He cried every night. The Applicant said he felt helpless and that his ‘entire life was being stripped away’ from him. The Applicant stated he was ‘depressed and lost in my own mental mess’. His studies suffered and he was ‘drowning in agony’. All of this, the Applicant contended, explains the breach of Condition 8202 which started to be calculated by the Department from 21 May 2018.

4. The Applicant re-iterated this explanation for his cessation of studies at the hearing before the Tribunal. He drew attention to medical records, which were produced to the Tribunal, that corroborated his claims that his mother was suffering from chronic illnesses and continues to do so. The Tribunal accepts all this evidence. The Applicant was visibly distressed at the hearing when giving evidence about his mother’s ill-health. Telephone records produced by the Applicant also indicate that he speaks to his mother by phone several times every day. It is clear he feels significantly responsible as her only son, not only for her health and well-being but also in relation to her expectations that he achieve a meaningful educational qualification in Australia before he returns to India.

5. There are, however, major problems associated with the submission that the Tribunal ought to accept this as a satisfactory reason for the purposes of exercising its discretion not to cancel his visa. Regrettably, sickness and even death of family members are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

6. In such circumstances, registered course providers and Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. He neither contacted staff at his course provider, nor staff at the Department, to inform them of the personal difficulties he was having.

7. The Applicant’s failure to take steps to seek help, to alert his course provider of his problems, or to alert the Department as to his personal situation has not assisted his case. It is not what a reasonable student visa holder would have done in this kind of situation. His failure to do anything in this regard resulted in an ongoing breach of his visa. The Tribunal notes that, while the Applicant failed to take positive action in relation to remedy the situation with respect to his continuing study obligations, he found the time to do other things while he remained in Australia. In evidence, he stated that he would work as a painter at least 1 or 2 days a week. He said in evidence that he stopped working only 4 to 5 months ago, meaning that he was by his own admission able to work for a considerable time while he continued to breach Condition 8202.

8. It is difficult for the Tribunal to fathom why he chose not to prioritise compliance with his visa conditions by focusing on his studies. There is no psychological evidence, beyond that the evidence of the Applicant himself, that provides an adequate account of his mental state at the time. The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors, and that this may have been a cause of him effectively doing nothing to get his studies back on track. That he was able to work as a painter suggests that his mental health was not in such a condition that he was unable to continue with his studies, as he was obliged to do. If he could not comply with the condition due to the ailing health of his mother, he should have returned home. He did not do so. He chose to remain in Australia in continuous breach of Condition 8202. The last time he visited India, on the Applicant’s evidence, was in November 2016. He stayed there for 10 days before returning to Australia.

9. The Tribunal also notes that, in the course of submissions, the point was made that Stotts College apparently failed to notify the Applicant of its intention to cancel his enrolment. Whatever the merit in this contention, the Tribunal considers that the point has no bearing on the exercise of its discretion to consider cancelling the Applicant’s visa. Whether the course provider gave him notice in accordance with the National Code does not change the fact that the Applicant continued to remain in breach of Condition 8202. The responsibility of the Applicant continuing with his studies and maintaining compliance with Condition 8202 rested exclusively with the Applicant, not the course provider. No notice needed to be given to the Applicant for him to be apprised of the fact that he was not actually attending classes. He knew it and he admitted as much in evidence. Accordingly, this particular submission is devoid of any merit.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. That purpose was effectively defeated when the Applicant chose to cease studying without providing any satisfactory explanation. The Tribunal further notes that this is the second student visa that the Applicant has been granted. He was previously granted a Subclass 573 visa so that he could complete a Bachelor’s course. He failed to achieve that. It is evident that the Applicant was granted this second Subclass 500 visa to provide him with a second opportunity to complete that which he had originally intended to complete under the 573 visa. He has effectively failed to take up that second opportunity without satisfactory explanation.

Extent of Applicant’s Compliance with Visa Conditions

1. The Applicant’s breach of his visa for a continuous period of more than 12 months represents a significant proportion of the total visa grant period. Because the Applicant has not provided a satisfactory explanation for this breach, this is a significant factor that weighs in favour of cancelling his visa. There is no material before the Tribunal that suggests he has not complied with other visa conditions, of this visa or of previous visas.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desired to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully a higher level Australian qualification. He has only successfully completed a Diploma level course so far. It will be difficult for his mother, as she obviously has high expectations of her only son.

2. However, that desire of the Applicant to be permitted to remain in Australia must be tempered with the extent of his non-compliance with the conditions of the visa. His student visa obliged him to prioritise studying in Australia the entire time he was here. He chose not to do so. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. She is a citizen of China and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member