Sharma (Migration)

[2019] AATA 2848

Sharma (Migration) [2019] AATA 2848 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mansi Sharma

CASE NUMBER:  1719101

HOME AFFAIRS REFERENCE(S):           BCC2017/2151884

MEMBER:Joseph Lindsay

DATE:31 May 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 31 May 2019 at 1:31pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – interpreter assistance required – English language skills – ability to successfully complete studies in Australia – circumstances giving rise to non-compliance – non-payment of course fees – reasonable steps to maintain enrolment – degree of hardship – females in India – arranged marriage – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 August 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 applicant attended the hearing before the Tribunal on 23 March 2019 and had the assistance of an interpreter. The applicant was not represented by a migration agent.

3. 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

4. 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?

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. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 8 August 2017 indicating that she had not been enrolled in a registered course of study since 22 November 2016.

8. In her response to the Tribunal, the applicant indicated that the Tribunal’s information was not correct. She indicated that her course provider did not tell her they cancelled her course. The applicant said she had never received any written or verbal instruction from her course provider that they had cancelled her Confirmation of Enrolment.

9. The Tribunal put to the applicant that whether or not she was told her course was cancelled, the information before the Tribunal indicated that her course was cancelled by her provider on 22 November 2016.

10. What followed was a considerable discussion with the applicant where she would not directly answer the Tribunal’s question about whether or not she had been enrolled in a registered course of study since 22 November 2016.

11. The applicant ultimately admitted that she had not been enrolled in a registered course of study since 22 November 2016.  

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2)(a) of the Act. The Tribunal finds that the ground for cancellation for 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

13. 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.’

    English language skills

14. In respect to the need for an interpreter, the applicant indicated she wanted an interpreter to interpret all communications with the Tribunal. The Tribunal put to the applicant that she had indicated her level of English was good and she had come to Australia on a 573 visa and had passed her International English Language Testing System, but she said that she still required an interpreter for the hearing. The Tribunal put to the applicant that the Tribunal may have a concern as to her actual English abilities and whether they may impact on her ability to successfully undertake a course of higher education in Australia.

15. In response, the applicant said her level of English is good. The applicant explained that as it is her case she was feeling nervous. She indicated that there were some immigration rules and terms that she could not understand.

16. The Tribunal accepts that, due to nervousness, the applicant wished to have the interpreter on hand to assist her. However, the Tribunal is not satisfied that the applicant’s level of English is of a sufficient standard that she would actually be able to successfully undertake a course of higher education in Australia. For the entire time of the hearing, the applicant was heavily reliant on the interpreter for each exchange of information between the Tribunal and herself. Accordingly, the Tribunal finds that even if the applicant were to have a student Visa, the applicant’s English skills appear to be insufficient for her to be able to successfully undertake a course of higher education in Australia.

    The circumstances in which the ground for cancellation arose

17. The Tribunal spoke with the applicant about her study history in Australia. The applicant indicated she enrolled in a Master of Management from Latrobe University, and then she changed her enrolment to the Master of Professional Accounting. She indicated she was doing the Master’s Degree at Holmes Institute.

18. The applicant was adamant that her course provider never told her that her course enrolment was cancelled.

19. The applicant indicated to the Tribunal it was only when she received the Notice of Intention to Consider Cancellation (NOICC) from the Department that she was made aware that she was not enrolled in any course.

20. The Tribunal put to the applicant that the NOICC was sent to her on 20 July 2017, to which she agreed. The Tribunal asked the applicant what she was doing between November 2016 and July 2017 because presumably she was not attending classes. The applicant responded she wanted to take a rest.

21. The Tribunal put to the applicant that she had just told the Tribunal that her course provider did not tell her that they had cancelled her course enrolment. The Tribunal put to the applicant that she could have physically gone to her provider and that she also had online access to check her enrolment status at any time while she remained a student with that provider. The Tribunal put to the applicant that she could reasonably have done those actions just like any other student who is enrolled with a provider. The Tribunal put to the applicant that for those reasons the Tribunal  placed low weight on her assertion that the provider did not tell her that her enrolment was cancelled.

22. The applicant reaffirmed simply that her course provider did not tell her that her course enrolment had been cancelled. The applicant then indicated she did attend the college and sat exams in February 2017.

23. The Tribunal asked the applicant how she could sit for exams for a course that she was not enrolled in. The applicant then said she did not sit for her exams. The applicant said that she had paid $6000 in fees and that there was only $2000 left to pay and that’s why her provider would not allow her to sit her exams.

24. The Tribunal asked the applicant if the reason why she ceased her course enrolment was because she did not pay her course fees and in response she said yes.

25. The Tribunal asked the applicant why she did not pay her fees and she said her fees were to be paid by her parents and then her grandfather got sick and died and a lot of money was spent on that. She also indicated that her mother got sick too, with ulcers on her feet and spinal injuries.

26. The Tribunal put to the applicant that she said her grandfather got sick and died and that her mother also got sick and that she had provided a financial guarantee that she could pay her course fees and expenses during her studies in Australia. The Tribunal put to the applicant that for that reason the Tribunal placed low weight on what she said in relation to her grandfather and mother getting sick. In response the applicant indicated she asked her course provider to give her an extension of time in which to pay, however they refused. The Tribunal asked the applicant if she had any written evidence about her claim that she did approach her college to seek an extension of time in which to pay her course fees, the applicant indicated she did not have any such documentation.

27. The applicant indicated that she wanted the Tribunal to ask for the documentation from the course provider. The Tribunal informed the applicant that it was not the role of the Tribunal to obtain that information from her provider, but rather the onus was on her to reasonably provide that information to the Tribunal.

28. The Tribunal asked the applicant whether she spoke to her course provider about her grandfather getting sick and her mother getting sick. The applicant indicated in response that she did put it in writing to the course provider, however she did not have any documentation about this to give to the Tribunal. The applicant indicated that her friends did not want to get involved in the matter. When the Tribunal asked the applicant what she meant by that, she said it’s a matter for immigration. The Tribunal then put to the applicant that she appeared not to be answering the Tribunal’s question.

29. The Tribunal repeated the question to the applicant. The Tribunal put to the applicant that she had just told the Tribunal she had written to her course provider. In response she indicated that she did say that to the Tribunal. The Tribunal put to the applicant that she had had time to prepare for the Tribunal hearing. The Tribunal put to the applicant that if she said to the Tribunal she wrote to her provider and she did not provide the Tribunal with a copy of the documentation she claimed to have sent to the provider, how could the Tribunal accept her assertion that she wrote to her provider? The applicant responded that if the college gives the documentation to her she would be able to provide it. The Tribunal put to the applicant that she indicated that she was the one who gave the documentation to her provider and therefore she should have a copy of the documentation already. The applicant then indicated she handwrote the documentation she gave to her provider and she did not have a copy.

30. The Tribunal asked the applicant when specifically she put this information in writing to her course provider. In response, the applicant indicated that she could not give the Tribunal the exact date but it was before the exams started in 2016. The applicant confirmed that it was the July intake of 2016 and the exam was before November 2016 – before her course provider cancelled her enrolment. When the Tribunal asked the applicant whether her course provider responded to her request, she indicated that her course provider refused to extend the time she was allowed to pay her course fees.

31. The Tribunal put to the applicant that in summary she had indicated the reason her course enrolment was cancelled was because she had trouble paying her course fees, and at the same time she had stress on her as result of her grandfather’s death and her mother’s illness back in India. The applicant further indicated she had other trouble when she first got to Australia where she was first living with her brother but then he returned to India and that after that she started sharing accommodation with other people.

32. The Tribunal put to the applicant that it had read her written submission where she indicated that she had been sharing accommodation with other people and had encountered some difficulty in that respect. When the Tribunal asked the applicant whether she had any particular problems, she indicated she had stress from moving and from problems back home. The applicant indicated that in addition to those problems she couldn’t get sufficient money to pay her course fees and that led to the cancellation of her course enrolment.

33. The applicant explained that these instances happened to her when she was 22 years old and it was her first time living away from home. She indicated that initially her brother was with her but he returned to India on 1 or 2 July 2016 and then she had to share accommodation with other people.

34. In consideration of the above, the Tribunal makes the following findings:

    ·The reason the applicant’s course enrolment ceased on 22 November 2016 was because she did not pay her course fees. 

    ·The Tribunal does not accept the applicant’s evidence that the reason she did not pay her course fees was due to her grandfather’s illness and death and her mother becoming ill and the cost to her family involved in dealing with that situation. The applicant did not provide any documentary evidence in relation to her grandfather’s death or her mother’s illness or any costs allegedly arising out of those situations.

    ·The applicant provided a financial guarantee as part of obtaining her student visa that she could pay her course fees and living expenses for the duration of her studies.

    ·There is some indication that there may have been communication of some type between her course provider and herself. Whilst the Tribunal acknowledges that the applicant sent an email to her course provider in an endeavour to obtain a copy of the handwritten correspondence she claimed to have given to her course provider, at the time of this decision a copy of this handwritten correspondence has not been provided to the Tribunal. Accordingly, the Tribunal does not accept that the applicant took reasonable or sufficient steps to engage with her course provider in respect of her inability to pay her course fees. The Tribunal does not accept that the applicant took reasonable or sufficient steps to maintain her student enrolment with the course provider.

    ·The Tribunal does accept that at the time her course enrolment was cancelled she was relatively young and that was her first time living away from home. The Tribunal does accept that she encountered some difficulty in living with people at that time. However, the Tribunal reasonably expects that a student in her situation may from time to time encounter such situations. For that reason the Tribunal gives low weight in favour of the applicant’s circumstances in this respect.

35. In balancing the circumstances as indicated above, the Tribunal finds that the applicant’s explanation as to why she did not remain enrolled, are not exceptional circumstances.

    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

36. 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

37. The Tribunal finds that the applicant appears to have complied with her visa conditions with the exception of 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)

38. The Tribunal spoke to the applicant about the hardship that she may face if her student visa was cancelled and she was required to return to India.

39. The Tribunal put to the applicant that she had come to Australia to do a postgraduate qualification. The Tribunal put to the applicant that she appeared to be a qualified pharmacist in India. The applicant indicated that she had not yet worked as a pharmacist but that she had completed the qualification as a pharmacist and then had come to Australia. When the Tribunal asked the applicant whether she was going to be a pharmacist, she said no. When the Tribunal asked the applicant what her plan was, she responded that she wanted to do her study in Australia so there will be more opportunities in her field. When the Tribunal asked the applicant whether she was going to be a pharmacist, she said yes but after getting her master’s degree she was hoping to get a better job. The Tribunal asked the applicant if her understanding of the role of a pharmacist is that it is someone who dispenses prescriptions and other drugs. In response she agreed that was her understanding of what a pharmacist does. The Tribunal asked the applicant if her postgraduate qualification would help her to be a pharmacist, or whether she wanted her qualification to allow her to do another job.  In response she indicated that after completing a master’s degree she did not work to not want to work as a pharmacist dispensing medications but rather she wanted to work for a pharmaceutical company.

40. The Tribunal put to the applicant that she was a qualified pharmacist and now 25 years of age. The Tribunal put to the applicant that if she went back to India she could get a job as a pharmacist in India. In response, the applicant said that in India girls are not allowed to go outside to study. The applicant said that firstly her parents had spent a lot of money and secondly society would not let her live. She said if she went back to India she would be taunted. She said if that happened her parents would be under stress and she would go into a depression.

41. The Tribunal put to the applicant that it wanted her to tell the Tribunal what job she would get if she went back to India. In response, the applicant said that if she went back to India they would not let her live easily. In addition the applicant said that it was not very easy to find a job in India. The applicant said there are a lot of opportunities here in Australia and that it was very hard for a girl in India. She said that even if she did get a job in India people would pass remarks about her that she went to Australia and did not complete her studies and then came back to India. The applicant said that no one will understand the problems that she went through. She said due to that her whole family would become stressed including herself. She said that in India girls are not encouraged. She said that due to the pressure of her society they might make her get married because it is a tradition in India to be in an arranged marriage.

42. The Tribunal asked the applicant if she was in an arranged marriage currently and the applicant responded “no.” She said she was a single girl and wanted to prove that a single girl can do something. She said that the situation is out of control and she couldn’t do anything. When the Tribunal asked her what situation she was talking about she said due to her grandfather and mother her whole time was wasted here.

1. The Tribunal put to the applicant that the part about her grandfather and mother becoming ill certainly was out of her control. The Tribunal asked the applicant if she had been talking about marriage. In response, she said that whole scenario had an effect on her visa.

2. The Tribunal put to the applicant that she had just been talking about marriage and had confirmed to the Tribunal that she was not in an arranged marriage. In response, the applicant said that her parents had sent her to Australia and had spent a lot of money on her. She indicated that if she was unsuccessful in her studies her parents would put pressure on her to get married. She indicated her parents would forcibly make her get married, something that she did not want. She indicated that she would be expected to get married due to societal pressure.

3. The Tribunal asked the applicant that if she finished her master’s degree, and then went back to India, if she would she get married in an arranged marriage. The Tribunal asked the applicant if an arranged marriage was a situation that awaited her. In response, the applicant indicated that she wanted to find a partner for herself and that because she had been through a stressful time she had not yet found a partner for herself.

4. The Tribunal asked the applicant if she went back to India with a master’s degree whether that would stop her parents from forcing her to marry someone. In response, the applicant indicated that if she was able to finish a master’s degree that would take two years to do and that would give her enough time to find a partner in Australia to marry.

5. In consideration of the above, the Tribunal makes the following findings:

   ·The applicant is a qualified pharmacist and at the time of the hearing was 25 years of age. Accordingly the Tribunal finds that if she were to return to India the applicant would be able to get professional employment as a pharmacist if she so chose to.

   ·The Tribunal does not accept the applicant’s assertion that she could not get a job in India in her chosen profession as a pharmacist.

   ·The Tribunal does not accept the applicant’s assertion that girls in India are not allowed to go outside to study or are not encouraged. Whilst the applicant’s assertion may be correct in respect of girls from a lower socioeconomic background in India, the Tribunal does not accept the applicant’s assertion is applicable is respect to all girls in India because the applicant is a girl who did do her study in India and became a qualified pharmacist in India.

   ·The Tribunal does accept that if the applicant returned to India without completing her master’s degree there may be some comments made to her and her family that she may find distressing. The Tribunal does accept that the applicant’s family has likely spent some money on her to assist her to get her master’s degree and that there may be some disappointment that she has not been able to do so. Accordingly, the Tribunal gives some weight in the applicant’s favour to her circumstances in this respect.

   ·In respect of the applicant’s assertion that if she did not get her master’s degree in Australia that her parents would force her into a marriage, the Tribunal accepts the applicant’s assertion that there would be societal expectations on her as part of traditional culture in India for her to enter into an arranged marriage. The applicant indicated to the Tribunal that it was very important to her to stay in Australia for sufficient time to allow her to find a partner of her own choosing to marry and that doing the master’s degree would afford her time to be able to find a partner. In consideration of the applicant’s evidence on this issue, the Tribunal finds that the purpose of the student visa is to allow students to undertake and complete their enrolled course of study. The student visa is not issued for the purpose of facilitating potential marriages in Australia. Accordingly, the Tribunal gives low weight to the applicant’s circumstances in this respect.

6. In balancing the circumstances as indicated above, the Tribunal gives low weight to the claimed hardship the applicant may face if her student visa was cancelled and she returned to India.

   Past and present behaviour of the applicant towards the Department

7. 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

8. There were no dependents attached to the applicant’s student visa. The Tribunal places low 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

9. The Tribunal accepts that the applicant is subject to legal consequences with the cancellation of her student visa.

10. 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.

11. 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

12. The Tribunal asked the applicant if she feared anything in returning to India and in response she indicated that people would pass bad remarks, she would not be able to find a job, and even if she did find a job people would pass remarks all the time to herself and her family and that would cause stress to herself and her family and she would go into a depression again. The Tribunal put to the applicant that it did not have any documentation from her in relation to any medical diagnosis or treatment for depression.

13. In respect to the above information, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

14. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

15. The Tribunal asked the applicant whether there were any further matters that she wanted to raise. In response, she indicated that her provider had sent emails for her to get re-enrolled. She mentioned that the tension in her family and where she was staying had caused problems, and she said she had no friendship circle that could guide her or tell her anything. The Tribunal put to the applicant that these issues had been covered earlier in the hearing.

16. The Tribunal places low weight on this information in the applicant’s favour.

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

    Conclusion

18. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 22 November 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).

19. The Tribunal finds that the circumstances that led to the applicant ceasing her enrolment in a registered course of study, as detailed above, are not exceptional circumstances. 

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

    DECISION

21. 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.