SHARMA (Migration)

SHARMA (Migration) [2019] AATA 2577 (3 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr VIVEK SHARMA
CASE NUMBER:  1702821
HOME AFFAIRS REFERENCE(S):           BCC2016/3844386
MEMBER:Wendy Banfield
DATE:3 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 03 June 2019 at 2:00pm
CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – breach of visa conditions – not maintained enrolment in registered course – failure to maintain enrolment – fundamental breach – compassionate grounds – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202, Public Interest Criterion (PIC) 4013
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 10 February 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).
The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course of study as required by the conditions of his Student 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.
Background
The applicant is a citizen of India and is currently 25 years old. The applicant first arrived in Australia in 2013 as the holder of a Subclass 573 Student Visa. He was granted the visa which is the subject of this review 16 October 2013.
The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
Evidence of the visa applicant
Prior to and after the Tribunal hearing the applicant submitted the following evidence:
·     Representative’s submission dated 8 May 2019;
·     Statement of Ajaydeep Singh Uppal dated 9 May 2019;
·     Statement of the applicant dated 13 May 2019;
·     Evidence of enrolment including Confirmation of Enrolment (COE) certificates for courses in Business, Business Administration, Commercial Cookery, Hospitality and Hospitality Management;
·     Letters from Holmesglen in 2014 and Stott’s College in 2015 confirming enrolment;
·     Receipts for payments made to Stott’s College;
·     Letter of release from Front Cooking School dated 8 April 2016;
·     Medical evidence regarding the applicant’s sister’s breast cancer diagnosis and treatment and death certificate;
·     Tenancy receipts in the name of the applicant and his former fiancé dated December 2014 to February 2016;
·     Photos;
·     Evidence of the applicant’s current enrolment;
·     Second statement of the applicant dated 22 May 2019;
·     Second representative’s submission dated 22 May 2019.
The hearing
The applicant gave evidence about his study history in Australia. He advised he arrived on 30 December 2013 to study a Bachelor of Business Management at Charles Sturt University and had begun a diploma leading to a degree. The applicant said the opportunity to take a degree through Charles Sturt University ceased and as a result, in December 2014 he changed his enrolment to a cookery course. The applicant’s business course started three months after his arrival in Australia but because the tie to Charles Sturt was not available he said he and other students decided they would not study at the Holmesglen College anymore. However, he enrolled in a Certificate IV in Cookery until his agent in India told him he should start with a Certificate III. The applicant said he has not completed any courses of study since he arrived in Australia but he hoped to finish. The applicant was asked to comment on whether he had completed a Certificate IV in Business in 2014 and he said he had not.
The Tribunal referred the applicant to the Department’s decision which led to the cancellation of his visa due to a breach of visa conditions. He was advised that the relevant period when he was not enrolled was 8 April 2016 to 1 February 2017 at which time the Department issued a Notice of Intention to Consider Cancellation. The applicant acknowledged he was not enrolled to study for that period and referred to the difficult situation he was facing.
The applicant was asked what course he was enrolled in in beginning of 2016. He advised it was a Certificate III in Commercial Cookery and he had begun the program. According to the applicant he took a few classes in January 2016 and then his circumstances changed. The applicant advised that in December 2015 he went to India with his Australian fiancé who he had met in April or May 2014. He said she met his family and they were planning to get married. However, in March 2016 they had a fight and broke up which the applicant was not expecting. The applicant said he was very upset and his mind was not working because he had loved her. As a result he could not go to his classes so he went to his education provider and obtained a release letter telling the college that he would resume when he felt better. When asked why he did not take compassionate leave the applicant said he did not know what to do, or what to do with his life. He claimed the college told him that if he could not study he could get a release.
Regarding his activities following the release from study, the applicant said he shut himself inside the house, would not meet anyone and could not sleep. He claimed his health deteriorated because he was not eating and he was not able to think because his mind was not in the right place. During the period April to December 2016 the applicant claimed he stayed at home and did nothing. When asked how he was supporting himself he said his family supported him and he had work shifts of one or two days as a cleaner at Flinders Station. The Tribunal asked how he was able to work but not study. The applicant declared his work was not regular and consisted of only one or one and a half days and his friends would take him.
The applicant said he did not have any thoughts about what might happen while he held a Student Visa but did not study although he had wanted to take admission again as soon as possible. As to his plans to re-enrol, the applicant claimed he was then informed about his sister having breast cancer in December 2016. He said he felt like everything was ending as his sister is only two years older and she had been undergoing treatment for about a year. The Tribunal advised the concern was primarily with the period April to December 2016 and asked the applicant to explain why the breakup with his fiancé led to him being unable to study for such a long period. He said he would think about the time spent with his fiancé also his mind was not stable, he was not sleeping and he could not concentrate.
The Tribunal accepted the applicant’s original purpose in coming to Australia. Regarding any compelling need to remain in Australia, the applicant said he was very young when his father died and his mother made the effort to send him to Australia to study and wanted him to complete his course. He said when his sister passed away he could not go to see his family because he was studying. The Tribunal reminded the applicant he was not studying at that time and he said he had not told his mother that as he did not want to worry her.
The applicant was asked about having re-enrolled in courses in 2017 but he denied this was the case. In relation to his claims of a compelling need to remain in Australia, the applicant said his mother had a dream that he would complete his education and he wanted to hand over his degree. He said he would need to return to India after his studies as he and his mother were the only family members now. Regarding his plans if he completes the courses he is enrolled in now, the applicant said he wants to open a restaurant in his home town with his mother’s support. The applicant confirmed he wants to complete a Certificate III and IV, as well as a Diploma and Advanced Diploma. The applicant reiterated he plans to start a restaurant but said it would be helpful to do a degree as well.
The Tribunal referred to the applicant having enrolled in a Certificate III course on 15 April 2019 and asked why he had not studied prior to that date. He said he did not know he had study rights and his consultant did not tell him. The Tribunal asked the applicant how he has spent his time from the date of his visa cancellation. In response, the applicant said his family thought he had been studying; he visited family members in Sydney, then he became aware of his sister’s illness which caused a lot of stress and he does not know how all this time has passed.
The applicant was asked if he wanted to make a submission regarding any hardship that would result from his visa being cancelled. He said he wanted to make his mother happy and it feels like he has nothing left in his life. The applicant advised there are no consequential cancellations in his case and he is aware there are legal consequences. The Tribunal outlined the possible legal consequences and gave the applicant an opportunity to comment which he declined. He confirmed there were no issues in his home country that would give rise to Australia having international obligations. The applicant was asked if he had children and he replied that he did not but said his fiancé had been pregnant. However, he later discovered she did not proceed with the pregnancy.
The Tribunal invited the applicant to make any further submissions in support of his application for review. The applicant said he wanted his sister’s illness to be taken into account and the Tribunal advised his sister’s medical condition was accepted based on the evidence provided. The applicant further advised he was not currently working and claimed that in the past it had been “on and off”. When pressed about the nature of the work, the applicant said about 12 months previously, he had worked as a courier. He said his work rights were evident on his Bridging Visa but there was nothing about study rights. He concluded by stating he wanted to make his widowed mother happy by returning with a degree and doing something with his life in India.
The representative commented on the applicant’s capacity to work from April to December 2016 when he claimed he had not been able to study. She said there was extensive research that attending a workplace utilises different skills and it is beneficial to be in a structured environment as it enables a person to switch off from depression, anxiety, stress or worry. It was submitted the applicant had given evidence that the work was intermittent rather than regular indicating he did not have an intention to work rather than study. She said he has given oral and written evidence outlining why he could not study including not being able to eat or sleep and relying on friends. The representative offered to provide a further written submission addressing these issues.
The applicant’s representative referred to the Tribunal accepting the applicant had not studied from December 2016 onwards due to the compassionate circumstances surrounding his sister’s illness. The Tribunal clarified that it was accepted this may have affected his ability to study but not that it had prevented him from studying up to the present. The applicant was asked why he did not make inquiries as to whether he still had study rights. He said his consultant who made the application for review told him he could not study. The applicant also stated his work rights appeared on the Bridging Visa but there was nothing about study.
On behalf of the applicant it was submitted his former fiancé, had been pregnant but the pregnancy did not continue and it took him a considerable amount of time to get over the thought of having a child. The Tribunal noted this information had not been mentioned until the hearing that day and it was agreed the applicant had only given oral evidence about it. The applicant then said he found out his fiancé was pregnant in February 2016 but when he saw her after they broke up, she was no longer pregnant.
The representative summarised that the applicant has a compelling need to study in Australia because it is the dream of his widowed mother that he obtain qualifications and skills to open a restaurant. It was said to be his cultural responsibility to look after his mother and he will be in a better position if he completes his studies. It was claimed the applicant did not disclose to his mother about the difficulties he was having and he still does not want to disappoint her. In addition, it was submitted there will be a financial hardship because the applicant’s purpose is to open a restaurant and that is all he and his mother have since his father and sister passed away.
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 applicant gave evidence that he had been enrolled to study in Australia but due to personal difficulties, he had not been able to continue. He did not dispute that while holding a Student Visa, he had not been enrolled to study for the relevant period, April 2016 to February 2017 when a Notice of Intention to Consider Cancellation was issued by the Department. On the evidence before the Tribunal, the applicant was not enrolled in a registered course as required by the conditions of his visa. Accordingly, the applicant has not complied with condition 8202(2) and the ground for cancellation has been made out.
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 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
On the evidence before it, the Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.
The applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant’s evidence was that he was very young when his father died, his mother sent him to Australia to study and complete his course and he wanted to hand his degree to her. The applicant’s representative stated during the hearing and in a written submission dated 8 May 2019 that the applicant and his mother now want him to complete his Certificate and Diploma courses in Cookery and Hospitality to obtain the qualifications and skills to open a restaurant. It was said to be his cultural responsibility to look after his mother and he will be in a better position if he completes his studies.
The Tribunal assessed the claims put forward in considering whether the discretion to cancel the visa should be exercised. The applicant’s submissions refer to the loss of a parent in the past, his mother’s role in his travel to and stay in Australia, his responsibilities in relation to his mother and his stated plans of opening a restaurant. The Tribunal places some weight on the applicant being currently enrolled to study which if completed, could be of value to him in future. However, on balance the applicant’s claims weigh against him and do not demonstrate a powerful or convincing reason for needing to stay. The Tribunal considers that cancellation of the visa will not prevent the applicant from fulfilling his responsibilities to look after his mother and he can choose to pursue his stated goals in his home country, even if qualifications obtained in Australia would put him in a better position. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
· the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)
During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled.
The applicant claimed he would suffer hardship if his visa is cancelled because he wants to make his mother happy and it feels like he has nothing left in his life. The representative stated the applicant will suffer financial hardship if his visa is cancelled because his father and sister have passed away and his plans to open a restaurant are all he and his mother have. The applicant’s representative had also addressed the degree of hardship that may be caused in the written submission of 8 May 2019 prior to the hearing. It was stated the applicant would be unable to continue his studies in Australia; being able to complete his courses will put him in a better position to open an Indian fusion restaurant in his home country; and he is responsible for caring for his widowed mother. The Tribunal acknowledges the cancellation of the visa would mean that the applicant would not be able to continue his studies in Australia and that this would cause him a degree of hardship. The Tribunal has given some weight to the applicant in this regard.
The representative referred to, and the Tribunal is mindful that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.
· circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue enrolment in a course of study for a period of approximately nine months, from April 2016 to February 2017. The applicant provided several reasons for discontinuing his studies as follows: He had a fiancé who had met his family in India and who he expected to marry but they broke up in February 2016; his fiancé had told him she was pregnant but some months after the break-up, the applicant discovered she was no longer pregnant; in December 2016 he found out his older sister was suffering from cancer and had been undergoing treatment for about a year. The applicant claimed that due to these personal issues, he was unable to study. He advised he would think about the time spent with his fiancé, his mind was not stable, he was not sleeping and he could not concentrate. After learning of his sister’s illness, the applicant felt like everything was ending.

The applicant stated he was unable to attend classes so he obtained a release letter from his college with the intention of resuming when he felt better. When asked why he did not apply for compassionate leave the applicant said he did not know what to do, or what to do with his life. He said he did not think about what might happen as a result of discontinuing his enrolment while holding a Student Visa. He claimed he planned to re-enrol to study after ceasing in April 2016 but it was in December the same year when he was informed about his sister having breast cancer.
The Tribunal does not accept the applicant’s relationship breakdown was a valid reason for failing to maintain enrolment over a significant period of time, namely from April to December 2016. There is no evidence the relationship breakdown occurred as a result of family violence. The applicant made no mention of his former fiancé’s pregnancy to the Department or the Tribunal until the hearing but even if this was the case, it does not change the fact the applicant remained in Australia as the holder of a Student Visa without complying with the fundamental requirements. Although he claimed he did not think about the consequences, the Tribunal finds the applicant would have been aware that he was non-compliant with the terms of his visa by not being enrolled or attending a course of study. He had actively applied to be released from his enrolment with Front Cooking School after his relationship ended but there is no evidence he took any steps to regularise his visa status thereafter during the relevant period.
The Tribunal sympathises with the applicant’s situation, particularly the illness and death of his older sister from cancer. However, the Tribunal is not satisfied the applicant’s failure to study or seek a deferment of his studies during the period April to December 2016, in breach of visa conditions was due to circumstances beyond his control. While his relationship breakdown may have been unexpected and against his wishes, he still had control over his situation and could have taken steps to prevent being in the position that led to his visa being cancelled. According to the evidence, the applicant engaged in part-time or casual employment at times between April and December 2016 meaning he was able to carry out normal activities to some degree. At the relevant time it was open to him to seek compassionate leave or defer his studies rather than withdraw completely. He could also have chosen to return to India to be supported by his immediate family or to provide them with support if it was needed but he did not depart Australia after visiting his home country in December 2015/January 2016. The Tribunal notes that according to the applicant’s written statement of 13 May 2019, in December 2016 after being informed of his sister’s illness, the applicant considered returning to India but his mother only wanted him to return after he finished his studies and preferred him to focus on gaining hospitality skills. Despite his mother’s wishes that he continue to study, the applicant did not re-enrol before his visa was cancelled in February 2017 or at all until 2019.
The Tribunal notes the applicant has continually stressed the importance of obtaining qualifications from Australia and how crucial it is to his future in his home country. In this regard the Tribunal considered the applicant’s statement of 13 May 2019 in which he claimed that when his visa was cancelled in February 2017 his migration agent in Sydney told him he had no study rights. He further states that in February 2019 with the help of a friend he checked the Department’s Visa Entitlement Verification Online (VEVO) and found there was no restriction on studying. The Tribunal notes that he still did not enrol to study until May 2019, after he was invited to attend a Tribunal hearing. The Tribunal finds the applicant’s failure to take any action to ascertain his study rights for two years to be inconsistent with the behaviour of a person whose primary purpose is to study and progress academically. It is also not consistent with a student who had a demonstrated ability to manage his academic affairs including changes to his enrolment, to his education provider and his study path as well as consulting with his agent and friends as outlined in his written statement of 13 May 2019. As already stated, while the applicant was no doubt adversely affected by his relationship breakdown and later by his sister’s illness, he was still able to carry out day to day activities including working and supporting himself over several years.
For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.
· past and present behaviour of the visa holder towards the department
There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations 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 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 cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.
· 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 applicant stated during the hearing that he had no issues in his home country. He claimed his former fiancé has been pregnant when the relationship ended but he later discovered the pregnancy did not continue and he does not have any children. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 573 Student Visa is not a permanent visa.
· any other relevant matters
During the hearing the applicant initially claimed that because of his relationship breakdown in early 2016, he shut himself inside the house, would not meet anyone and did nothing. He claimed he was not able to think because his mind was not in the right place. The applicant’s friend Mr Singh Uppal provided a witness statement dated 9 May 2019 that supported the applicant’s claims of stress and hardship. Despite this the applicant applied for and was granted a release from his studies in April 2016. When asked how he supported himself, the applicant disclosed he had in fact worked one or two days a week and friends assisted him with transportation. The applicant’s representative made submissions after the hearing in support of the applicant’s capacity to engage in occasional work while not being able to study. The Tribunal has taken notice of and accepts the references to a newspaper article and to research about the benefits of work for those suffering from mental illness even though the sources cited do not compare work and study. However, the Tribunal considers the applicant has attempted to overstate his level of mental impairment in the period from April to December 2016, prior to being informed about his sister’s cancer diagnosis. He was able to carry out some every day activities such as occasional work therefore he should also have been able to seek advice about his circumstances and taken steps to ensure he did not breach visa conditions.
The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled or undertaking study which was the purpose for which the visa was granted.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.
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 Class TU visa.
Wendy Banfield
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 2577

3 June 2019

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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