Sharma (Migration)

[2019] AATA 2770

Sharma (Migration) [2019] AATA 2770 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sachin Sharma

CASE NUMBER:  1715538

HOME AFFAIRS REFERENCE(S):           BCC2017/1407633

MEMBER:Helen Kroger

DATE:3 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 April 2019 at 4:36pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolment cancelled due to  unsatisfactory progress – mother’s illness – financial constraints – capacity to successfully complete studies – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
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 7 July 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, Mr Sharma, an Indian national, was granted a visa on 17 October 2015 for the purpose of studying in Australia.

3. On the 29 May 2017, Mr Singh was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant provided a statement of explanation to the Department on the 14 June 2017.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed 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.

5. The applicant appeared before the Tribunal on 3 April 2019 to give evidence and present arguments. The applicant provided a copy of the delegate’s decision record to the Tribunal for its consideration.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. The applicant arrived in Australia in September 2015 for the purpose of studying a Diploma of Computing at MIBT followed by a Bachelor of Games Design and Development at Deakin University. He was issued a Notice of Intention to Consider Cancellation (NOICC) on 29 May 2017 and provided a written response to the Department on the 14 June 2017 explaining the circumstances around the time that his COE was cancelled and the sequence of events at that time.  At the hearing, the alleged breach (as discussed by the delegate in his/her decision record), was put to the applicant with regard to the alleged breach where his COE was cancelled on 14 October 2016, as the education provider had determined that the applicant had made unsatisfactory progress over two semesters, failing a number of units. The applicant did not dispute this finding and that his COE had consequently been cancelled.

10. On the evidence before it, namely the applicant’s admission during the hearing, the Tribunal finds that 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

11. 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’.

12. The information provided to the Tribunal at the hearing along with the applicant’s written explanatory statement to the Department has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

13. The applicant, Mr Sharma, is a 22 year old Indian national, who travelled to Australia in 2015 for the purpose of undertaking a Diploma of Computing at Melbourne Institute of Business & Technology (MIBT), to be followed by a Bachelor of Games Design and Development at Deakin University. Mr Sharma immediately commenced his Diploma upon his arrival in Australia in October 2015, undertaking four units in the first Semester, and passed only two units. He was required to repeat the failed units in the second semester, in addition to another unit, and failed two out of the three units.  Deakin College advised him that his COE was to be cancelled due to unsatisfactory progress, a decision that the applicant appealed, and the College advised him that his appeal was unsuccessful on 13 July 2016.

14. At hearing, Mr Sharma described the difficulties he faced when first studying in Australia, the different academic structure and teaching method, his initial language literacy challenges that directly affected his comprehension of some of the units taught, and his natural tendency to be shy and not forthcoming. During his testimony, the applicant’s immaturity in dealing with these issues was most apparent, and the Tribunal found his explanation regarding his studies, personal adjustment to Australia and his flawed decision to protect his family from what was happening in Australia unusually candid and persuasive, indicating his understanding and appreciation of his naivety in the way in which he tried to cope.

15. At around the same time, his mother started suffering health issues which later required hospitalisation in India, with his father resigning from his work, in order to care for her. Without an income, he was not supporting his son financially, compounding the applicant’s issues.  Mr Sharma indicated at hearing (the evidentiary basis being the audio recording), his immaturity in the way in which he handled his circumstances during this time, not seeking advice or help from his family, nor did he seek assistance through the services provided by the College. On the basis of his testimony and honest self-reflection, the Tribunal is satisfied that his immaturity and reserved and shy demeanour at the time, contributed to the poor decisions he made and finds that these poor decisions do not reflect on his genuine and determined wish to undertake IT related studies in Australia. He explained his experience and compared the academic standards in India and Australia and why he wished to have a second chance at studying in Australia.  He indicated that he has been independently studying online through the website courser, studying program languages, whilst awaiting the Tribunal’s hearing and demonstrated a more mature understanding of what he needed to study successfully.

16. The Tribunal has considered the explanation provided at hearing by the applicant, the sequence of events as described by him, and is satisfied that his intention and reason to study in Australia is genuine and his continuing motivation to stay here in Australia to study endures. The Tribunal found his testimony persuasive in demonstrating his commitment to successfully completing a computing degree, notwithstanding his modest and self-deprecating demeanour.

17. The Tribunal gives significant weight to these factors in favour of the applicant compared to any weight given to cancelling his visa.

    The extent of compliance with visa conditions

18. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal has considered the breach of seven months, at the time the NOICC as issued, and recognises that there appears to be no additional breaches.   Accordingly, the Tribunal gives these findings some weight in favour of the visa remaining cancelled.

    Circumstances in which ground of cancellation arose

19. In response to the NOICC issued by the Department, Mr Sharma responded with an explanatory statement, which is extracted below:

    I am writing this email in reply to notice of intention to consider cancellation of my student visa subclass 573 visa.

    I am from India, being a single son and due to our cultural I was always close to my family. My father is a retired Navy officer and working as an instructor at Merchant Navy Institute at the moment. He always motivated us for getting good education for our future and it is because of his continuous effort and inspiration my elder sister completed her Bachelor of Technology (IT) and doing a good job in the same field. I have been a hard-working student since childhood and my parents were more than happy to send me abroad for higher studies and I chose IT field and Australia to be the best destination for the same. My father wanted me to provide the best education and he also taken the loan for the same as he used to say to us that it is not the loan but the investment for my future.

    I still remember the day when my visa was granted, my family were happier than myself as they considered it as my first step towards my career. After getting my visa I came to Australia to study Diploma of Computing at Melbourne Institute of Business & Technology (MIBT) leading to Bachelor of Games Design and Development at Deakin University. As always, I started my course with great enthusiasm at MIBT and was very eager to study and learn. I was 19 years old when I started the course and I was happy that I started to work on my career pathway at that age.

    However, things didn't go as smoothly as I hoped. I was in a new environment and away from my family for the first time which was giving me some emotional stress. In addition, the teaching methodology was also different in comparison to my home country which was making little bit harder for me to study. However, I was trying my level best and I passed in two units of my course but failed in two other units. Even though I was not satisfied with the results, my college informed me that I can study those subjects again in next semester. I decided to retake those subjectsand gave the exams later in next semester. Unexpectedly, even in next semester I failed in the same subjects again and the college advised me that I am not eligible to enrol in Bachelors because of unsatisfactory course progress. As I was not happy with the decision of the college I decided to appeal for their decision however, on I 3 July Deakin advised that my appeal was not successful. I still wanted to study so I decided to talk with college and spoke with Stase Kaintatsis, Quality and Compliance Manager at Deakin. However, he also advised me that he cannot help me anymore and I can either appeal with external body or get enrol with the new provider.

    As a last resort, I decided to appeal with external body as I still wanted to continue with Deakin and even that appeal was unsuccessful I had time to enrol with the next provider for November intake. Till this stage, I didn't informed my parents about the things which happened with me, as I didn't want to disappoint them. I thought that only when I will need money for the enrolment I will inform them as the loan was under my father's name and as per the condition of the loan forty percent deposit has to be made by him.

    When the external appeal was ongoing I came across with the bad news about the medical condition of my mother. She was suffering from the Sciatica which was very painful for her and doctor has advised to put her under observation for few weeks. It was unexpected situation for my family all of us were under stress. Meanwhile I received response for my external appeal on mentioning that it was unsuccessful. I was not able to tell my parents about my situation as that will give additional stress to them. Again, I decided to talk with my college if they can re-enrol for the next intake but they advised me that the only option for me is to get enrolment from another provider. On 14 Oct 2016, I received email from Deakin mentioning that after the outcome of external appeal they have reported my course progress to DIBP. I was hopeless however thinking about my family situation I decided to wait till my mother recovers and then inform them about my enrolment with new provider.

    However, things didn't go as I expected and my mother's condition became critical and she was advised to undergo an operation. My family was under huge pressure and I knew that the cost of operation is also expensive. I was not in situation to ask additional funds from overseas for my studies as I knew that they were managing funds for medical treatment. I decided to wait till recovery of my mother to start my new enrolment. My mother was admitted in the hospital from 17 to 21 Feb 2017 and also went through the surgery. I was not able to stop myself to see her and I visited India to be with my family from 18 Feb to 22 Feb during her treatment. The operation was successful but she was still under medication and continuous follow up.

    I was in touch with my family and was happy to see her improving however I was still not able to convey my situation to them as it would give them additional financial burden to my family, so I was waiting for the right time and also trying to save some money from my own side.

    Meanwhile, I received an email from you mentioning the intention to cancel my visa. I was shocked as I was feeling that the whole world has ended for me. However, I decided to talk with my father and informed him all the things I went through. I also explained that I didn't wanted to give him extra emotional burden and stress when my mother was in such critical situation. He was silent for a while and then he advised me that in life things will not always be in our favour but we should not give up because of that. He reminded me about their dreams to see me graduating and having a good career pathway and also scold me for my immature decision to hide the problems with family, in the meantime he was happy that I care for my family and thinking about not to trouble them. He advised me to get enrol in the course at the earliest and he will manage funds for that.

    Then I visited few education consultants and applied for July intake for the Bachelors in IT in Swinburne and Melbourne Polytechnic. As I got offer from Melbourne Polytechnic I have accepted that which is for Diploma of IT leading to Bachelors of IT. As it takes some time to transferred funds from overseas I am   waiting for that for my confirmation of enrolment based on the acceptance and payment confirmation. I still have zeal to pursue my higher studies and want to make my parents proud of me.

    I would like to mention that due to the unpredicted medical situation of my mother I was without enrolment for few months, however it was not because of my intention but because of my family situation. In addition, there was no one to guide me properly and I was also unaware about the time period for the re enrolment. Now I have got admission in Bachelors of IT and I want to pursue my course with all my efforts. I humbly request you to consider my situations and provide one last opportunity to continue my further study. I have attached the medical certificates, previous correspondence with college and offer acceptance. Kindly let me know if you need any additional documents to support my application.

20. Mr Sharma was invited to comment on this at hearing, the decisions he made at this time, what intervention or assistance he sought from the education provider’s overseas’ student services, and why the circumstances that he experienced around the time of his visa cancellation, no longer exist.

21. As outlined above, he indicated the difficulty he faced under the Australian education system with different teaching styles and structures to that in India. He initially encountered language difficulties in understanding concepts in English and claims that his literacy standards have significantly improved. He indicated that he has no immediate family or friends in Australia, and that his friends here are ones that he has forged since being in Australia.  The Tribunal recognises that it is not unusual for an overseas student to encounter different education standards when moving to Australia and that applicants need to positively manage the transition to a foreign country where they may not have family or friends. 

22. In considering this, the Tribunal has sympathy with the applicant’s circumstances, his commencement in a Diploma in Computing immediately upon his arrival and his endeavours to complete two semesters, notwithstanding that he failed a number of units.  Whilst he has recognised that successful academic progress is a condition of his student visa, he has subsequently made a genuine effort to improve his academic potential with on-line courses and enrolled and commenced a Diploma in IT, before his visa was cancelled.

23. Mr Sharma also outlined the family concerns in India, when his mother was diagnosed with a medical problem that later required hospitalisation, and his father was required to resign from his place of work on the 25 January 2017, to care for her.  The applicant chose not to share his enrolment and subsequent visa issues with his family until mid 2017, as he indicated that he did not wish to worry them further.  He admitted at hearing that this was a poor decision that his father has subsequently reprimanded him for and the Tribunal finds that it is indicative of the immaturity of the applicant at the time and his youthfulness.

24. Whilst the Tribunal believes that it is not unreasonable to expect that overseas’ students, studying in Australia, need to manage their personal circumstances in a way in which they comply with the conditions attached their visa, the Tribunal has sympathy for the genuine, honest and candid evidence submitted, the applicant’s recognition and awareness of his own inadequacies at the time in dealing with the circumstances, and the young age of the applicant when he arrived in Australia.  The applicant was 19 years of age, who arrived in Australia with limited local support, from a culturally protective environment, and struggled to deal with circumstances accordingly.

25. The Tribunal has carefully considered all the circumstances and recognises the attempts the applicant has made to demonstrate that he has the capacity to successfully complete studies in Australia, whilst not seeking to deny that he was unsuccessful in his first attempt.

26. Given these circumstances as outlined above, the Tribunal gives significant weight to the reasons why the applicant was not enrolled in a registered course of study and accords significant weight in favour of the applicant compared to any weight given in favour of cancelling the visa.

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

1. The applicant was invited at hearing to comment on the consequences of his visa remaining cancelled. He explained that he chose to study in Australia as the academic standard in the computing sector was superior than that in India. He indicated that his sister, who is 6 years older than him, had completed a degree in Information Technology in India, and that such a degree provided greater future opportunities. Whilst he acknowledged that it would be possibly easier to pursue a higher education degree in India, and that studying in one’s native language would be easier, he indicated that his future employment opportunities would be greater with an Australian qualification.

2. He also claims that he would be personally disappointed and upset should he be required to leave without completing his course. Whilst the Tribunal acknowledges this would be the case, it does not consider it particularly remarkable or unusual for an applicant to be upset should their visa cancellation be upheld.

3. The applicant indicated that his family would continue to support him and have provided further financial support to enable him to stay in Australia whilst awaiting the appeal to the delegate’s decision.

4. The Tribunal recognises that a visa cancellation might cause some hardship to the applicant in furthering his career opportunities and that this could have a long reaching effect on his employment future. Whilst the Tribunal acknowledges that a cancellation would cause the applicant a degree of emotional distress, it does not consider this to be particularly unusual and has considered the enduring emotional and financial support of his family.

5. Accordingly, the Tribunal gives little weight to the significance of the hardship he would experience on his return to India and more weight in favour of the cancellation of the visa.

   Past and present behaviour of the visa holder towards the department

6. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings and gives this factor some weight in favour of the applicant and not cancelling the visa.

   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

7. It is unlikely that the visa applicant would 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 would be reached as a result of a cancellation

8. There is nothing before the Tribunal to indicate there are international obligations to consider.

   Any other relevant matters

9. The Tribunal is satisfied there are no further relevant matters for consideration.

10. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Helen Kroger
    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.