Sharma (Migration)

[2019] AATA 1716

Sharma (Migration) [2019] AATA 1716 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Deepanshu Sharma

CASE NUMBER:  1833410

HOME AFFAIRS REFERENCE(S):           BCC2017/218836

MEMBER:Stephen Witts

DATE:23 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 May 2019 at 11:12am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – mental health issues – responsibility of visa holder – significant breach – 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 1 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).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh the grounds for not cancelling the 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. On 5 November 2018 the Federal circuit Court remitted this matter on the basis that the Tribunal erred in failing to comply with obligations pursuant to s.359A of the Act with respect to information obtained from the Provider Registration and International Student Management System.

4. The applicant appeared before the Tribunal by phone on 23 May 2019 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course between 21 March 2016 and 29 January 2017.

10. According to the delegate’s decision record, dated 1 February 2017, the applicant was not enrolled to study a course during this period of time and did not reenrol until such time as the Department issued the applicant with a notice of intention to consider cancellation (NOICC). According to the delegate the applicant did not provide a response to the NOICC.

11. Adopting the procedure under s.359AA of the Act the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if he wished for additional time to consider this record prior to having a discussion with the Tribunal.

12. The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record.

13. The Tribunal reviewed the applicant’s academic record as outlined in his PRISMS record:

    a)Diploma of Commerce cancelled in 2013 and in 2014

    b)Bachelor of Business cancelled in 2014 and again in 2015

    c)Certificate IV in Business finished in September 2015

    d)Diploma of Management cancelled in 2015

    e)Certificate IV in Business cancelled in 2015

    f)Bachelor of Business cancelled in 2016

    g)Diploma of Management cancelled in 2016

    h)Certificate IV in Commercial Cookery cancelled in 2017

    i)Bachelor of Business cancelled in 2017

    j)Diploma of Hospitality Management cancelled in 2017

14. The Tribunal had a discussion with the applicant regarding his study record and noted to the applicant that it did appear from the applicant’s PRISMS record that he was not enrolled between 21 March 2016 and 29 January 2017. In particular the Tribunal noted to the applicant that his enrolment at this time, his Certificate IV in Business, which was originally due to begin on 9 November 2015 and complete on 27 May 2016, was cancelled due to non-payment of fees. The Tribunal asked the applicant if he wished to provide evidence on this matter.

15. The applicant stated that he had attended classes for some time during this period but that he did not know that the Institute had cancelled his enrolment due to non-payment. He also stated that his then migration agent had not ensured that his fees during this time had been paid in the appropriate way or that they had been passed on to the Institute. The Tribunal asked the applicant if he could provide any evidence of these issues, in particular, that the Institute did not inform him of the course cancellation due to non-payment of fees or circumstances surrounding this matter. The Tribunal noted to the applicant that it had considered the evidence previously provided to the delegate and to the Tribunal on this matter. The applicant did not provide any evidence in regard to these specific contentions and the Tribunal does not place any weight on these assertions.

16. The Tribunal finds, based on the evidence presented at hearing, and the material provided to the Tribunal in the Tribunal’s file and in the delegates file, and the evidence reflected in the applicant’s PRISMS record, which the Tribunal discussed with the applicant in accordance with s.359AA, that the applicant was not enrolled during this period of time.

17. 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).

    Consideration of the discretion to cancel the visa

18. 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’

19. The Tribunal has considered any submissions provided to the Department and the Tribunal, and also the evidence taken at the hearing.

20. The Tribunal has also considered a submission put by the applicant’s representative dated 20 May 2019 (AAT file folio 48-52) where it was stated that the applicant was enrolled in his Certificate IV in Business and did study a portion of it but that it was cancelled due to a misunderstanding regarding the payments made by the applicant towards his tuition fee. The applicant’s lawyer stated that the educational Institute, Holmes, discriminated against the applicant by cancelling the applicant’s enrolment. The submission stated that the applicant was not informed of any breaches of the conditions of his enrolment by the Institute. This submission also stated that the applicant was ill during this period from January 2016 because he was suffering from depression because his then girlfriend was forcibly married to someone else by her parents and that this caused mental health issues for the applicant. This submission then went on to state that because of this the applicant could not concentrate on his studies and that the migration agent who he was using at that time did not send a proper reply to the department regarding its Notice of Intention to Consider Cancellation. It was also stated in this submission that the applicant’s condition further deteriorated after his ex-girlfriend committed suicide in August 2016. Further to this, it was submitted that the applicant had been taking various family medicines sent to him from his home country which further exacerbated his condition.

21. The Tribunal has considered this submission in detail, and also the evidence given at hearing, and accepts that the applicant would have been affected in his study by these events. However, the Tribunal finds that the applicant could have returned back to his home country and deal with his mental health issues having deferred his studies for an appropriate period of time. The applicant could then have returned to Australia and continued meaningful study. The applicant has now been here in Australia for some years and has been enrolled in over 10 courses, almost all having been cancelled. It is the obligation of a student visa holder to remain enrolled and progress academically in a registered course.

22. It is noted by the Tribunal that the applicant also submitted material from a hospital back in his home country dated 11 May 2019 (AAT file folio 54- 55) where it was stated by the applicant’s GP that he has been prescribed medication because of his mental health as he was suffering from anxiety and stress because he could not cope with the study pressure in Australia he was experiencing.

23. At the hearing, the Tribunal reviewed this information with the applicant, and invited the applicant to provide any further evidence should he wish to do so and the applicant stated that he had been suffering from depression during this time because of these issues.

24. As stated above, the Tribunal has considered all the evidence provided by the applicant and finds that it is the visa holder’s responsibility to maintain enrolment and progress academically and that although the applicant had had some difficulties with mental health issues which the Tribunal has considered, but finds that the evidence provided is not sufficient to offset the significance of the visa breach as stated above.

    ·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 applicant stated that he first arrived in Australia on 10 December 2013 because he wished to study for a better future. He stated that he has no other qualifications and completed his high school level education in 2013.

26. The applicant stated that he has a mother and father and several sisters back in his home country and that he is here in Australia on a bridging visa with no study or work rights, and is living with his cousins.

27. The applicant stated that he is maintaining himself here with money from his parents and from his friends and that he has not informed his parents of his current visa status as it would be shameful for his parents to learn about his current situation.

28. The applicant stated that he did receive the NOICC but did not reply to the Department as he thought that his then migration agent would deal with it.

29. In regard to his compelling need to remain here in Australia on student visas the applicant stated that he does have a need to remain here because to return home without other qualifications would be shameful for his parents. It is noted by the Tribunal that the applicant did successfully complete a Certificate IV in Business in 2015 and he stated that he also did complete a cookery qualification.

30. The Tribunal has considered this evidence and finds that the applicant has not demonstrated that he has a compelling need to remain in Australia on student visas. The applicant has already been here since 2013 and states that he has two qualifications gained here over that time. The applicant could return home and deal with his family matters and his mental health matters and that he has not demonstrated that he has a compelling need to remain in Australia.

    ·the extent of compliance with visa conditions

31. The Tribunal has found that the applicant was in breach of his student visa conditions by not maintaining his enrolment in a registered course between 21 March 2016 and 29 January 2017.

32. The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period. The applicant stated that he did not contact the department because he thought his migration agent had done so. The Tribunal does not find that this is credible evidence and that, in any case, it is the applicant’s responsibility to maintain his relationship with the Department.

33. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

34. The applicant stated that he would suffer some hardship by having to return to his home country without further qualifications because his parents would be shamed by his lack of success here and by his visa status, which he says he is not informed his parents of.

35. The Tribunal has considered this evidence and finds that there is not a degree of hardship that may be caused should the applicant return home and deal with his family and health issues.

    ·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

36. The applicant stated that it was not his fault that his enrolment lapsed because of a communication problem on the one hand with the Institute he was studying with and on the other hand with his then migration agent at that time. As stated above, the Tribunal has considered this evidence and does not find it credible.

37. The Tribunal therefore finds that there are no grounds for cancellation beyond the visa holder’s control.

    ·past and present behaviour of the visa holder towards the department

38. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department Tribunal in his dealings. However, this is expected of all visa holders.

    ·whether there would be consequential cancellations under s.140

39. There is no evidence of consequential cancellations under s.140.

    ·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

40. The Tribunal is mindful that the applicant could become an unlawful citizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

41. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

    ·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

42. There is nothing before the Tribunal to indicate any international obligations to consider.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

43. No such considerations are relevant in this case.

    ·any other relevant matters.

44. The Tribunal is mindful the applicant was disappointed by his study here and has considered the evidence provided by the applicant in regard to all the circumstances that he has outlined in regard to why he could not maintain enrolment in a registered course between 21 March 2016 until 29 January 2017 and progress academically to a successful conclusion. The Tribunal finds that the applicant has not demonstrated a compelling need to remain here as a student and nor has the applicant outlined to the Tribunal a degree of hardship that convinces the Tribunal that the applicant should not have his visa cancelled.

45. The Tribunal appreciates an education from Australia may enhance the applicant’s career, however, the population and economy of the applicant’s home country is significant and there are many people in full-time professional employment without a specific education from Australia. The Tribunal has considered the applicant statements and evidence given at the hearing however finds that the breach is significant. The Tribunal has considered all the factors listed above both individually and cumulatively in the context of the breach. As such, considering the circumstances outlined by the applicant, the Tribunal finds that the visa should be cancelled.

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

    DECISION

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

    Stephen Witts
    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.