Sharma (Migration)

[2018] AATA 5873

Sharma (Migration) [2018] AATA 5873 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaurav Sharma

CASE NUMBER:  1702747

HOME AFFAIRS REFERENCE(S):           BCC2017/218061

MEMBER:Jason Pennell

DATE:23 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 October 2018 at 2.40pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – granted course deferral due to stress and anxiety – permission to enrol in reduced load course – ceased studying and not enrolled in a registered course of full time study – no Certificate of Enrolment (COE) obtainable – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1), 140, 189, 198
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 9 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 complied with a condition of 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.The applicant appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Sanamdeep Kaur (‘Kaur’). 

4.The applicant was represented in relation to the review by his registered migration agent.

5.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

6.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.

7.The applicant was born on 29 August 1993 in Goraya, Punjab, India. His mother and father continue to live in Goraya, Punjab where his father owns and operates an electrical appliance retail store. The applicant’s mother operated a dressmaking business up until 2013. She stopped due to health issues and no longer works. The applicant has one younger brother who currently works in the fathers business.

8.The applicant attended the Excelsior Covent School in Goraya until 2010 after which he completed High School studies at the Mohan Lal Uppal Dav College Phagwara, India in 2012.   

9.The applicant’s movement details indicate that he was granted a (Temporary) (class TU) Higher Education Sector Visa (subclass 573) on 18 November 2014. The applicant arrived in Australia on 2 December 2014 and commended a Certificate IV EAL (further study) course on 15 December 2014, completed the course on 20 February 2015.

10.The Provider Registration and International Student Management System (PRISMS) confirms the applicant’s evidence that he commenced a Bachelor of Business at Federation University on 23 March 2015. The applicant’s evidence was that he found it hard to adjust into the environment of his new course and had a hard time understanding the content of his course units. As a result he did not pass any of the subjects in the first semester of the course. The applicant’s evidence was that he became very depressed and stressed as a result of failing his exams. He said that he did not tell his family that he had not passed his exams for fear that they would worry and become stressed. He says that as a result of his condition he became de-motivated in his studies.

11.The applicant’s evidence was that in order to overcome his loneliness and stress, he got married to his long term girlfriend, Kaur. They had met at school in India and Kaur had travelled to Australia prior to the applicant for the purposes of studying accounting. Ms Kaur’s evidence to the Tribunal was that she had completed a Diploma of Accounting and Bachelor of Accounting at Holmes College. The applicant’s said that he married Kaur with the expectation that being married to her would relive him of his stress and anxiety.   

12.The applicant’s evidence was that in order to relieve his stress and anxiety he decided to take time off from his studies. As a result, the applicant applied for a deferment of the course and on 5 August 2015 was granted a deferment of the Bachelor of Business course until November 2015. 

13.Kaur also sought and obtained a deferment of her course in or about August 2015. She provided a medical report dated 27 August 2015 from Dr Sharmila Lawrence which stated that she was suffering for a medical condition. Kaur evidence was that she had also been depressed at that time as a result of the applicant’s condition.

14.The applicant’s evidence was that when he was set to resume his course in November 2015, an issue arose with the owner of the house that he and Kaur were sharing. The applicant said that the owner of the house become abusive and aggressive toward them as a result of them cooking late at night. The applicant’s evidence was that for a number of days the owners yelled and abused them demanding that they leave the property. The applicant said that they found it difficult to find alternative accommodation. In addition the cost of moving to new accommodation, including the bond and costs associated with the tenancy agreement, meant that the applicant could not pay the fees for his course.

15.Despite these difficulties experienced by both the applicant and Kaur in relation to their accommodation and the fact that Kaur had obtained a deferment of her course due to being depressed, she was able to return to her study in December 2015 and go on to complete her Diploma of Accounting and Bachelor of Accounting qualifications.

16.By an email dated 26 November 2015 the applicant requested that he continue his study with a reduced subject load. By an email dated 30 November 2015 the education provider accepts that applicants request and forwards a document to be signed by the applicant. As a result the applicant executed a document from the Federation University entitled ‘Enrolling in a reduced load’ dated 30 November 2015. The document states that the applicant understands that he has been granted permission to enrol in a reduced load due to health issues and that it is his responsibility to ensure that he enrols in a non-compulsory summer semester in order to complete his studies within the duration of his student visa. By an email dated 3 December 2015 the applicant was advised that the due date for enrolment for the course was  20 November 2015 and that if he wished to enrol on a reduced load he would have to resubmit the reduced loan application for March 2016 semester within the enrolment time period.  There was no evidence that the applicant had enrolled in any subject in the course including a summer semester course.

17.The applicant stated that he had looked for alternative options for his studies but was not able to enrol in any other course due to the fact that he did not have a release letter from his education provider. As a result he was not able to obtain an alternative COE.

18.The PRISMS shows that the applicant has not been enrolled in a registered course since 19 April 2016. On 20 January 2017 a Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant. The NOICC invited the applicant to respond to the notice in writing within five days after she was taken to have received the notice. The applicant’s response to the NOICC is dated 7 February 2017.

19.The applicant’s visa was cancelled on 9 February 2017. 

20.During the course of the hearing the applicant conceded that he had not been enrolled in a course from 19 April 2017 to the date that his visa was cancelled.

21.The applicant provided the Tribunal with a copy of a medical certificate by Dr Sharmilla Lawrence dated 27 August 2015 for Miss Sanamdeep Kaur.

22.At the hearing the Tribunal had in its possession the departmental file No BCC2017/218061 which included:

(a)the NOICC,

(b)the applicants response to the NOICC dated 7 February 2017.

(c)the delegate’s decision record 9 February 2017.

(d)Medical Report by Dr Mary Maha Murallidran dated 15 July 2015.

(e)Medical Report by Dr Mary Maha Murallidran dated 25 November 2015.

(f)Email dated 7 August 2015 from Greet Brutta.

(g)Email dated 30 November 2015.

(h)Email dated 3 December 2015.

23.Prior to the hearing the Tribunal received the following documents:

(a)the applicant’s movement details.

(b)PRISMS.

(c)Applicant’s submissions dated 19 October 2018

(d)Federation University ‘Enrolling in a reduced load’ dated 30 November 2015.

(e)Applicant’s declaration dated 5 February 2018.

24.Having considered documents provided and the oral evidence of the applicant and Kaur at the Tribunal hearing, for the following reasons, the Tribunal has concluded that the delegate’s decision to cancel the applicant's visa should be affirmed.

Did the applicant comply with Condition 8202?

25.Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

(a)  be enrolled in a registered course, or in limited cases, a full time course of study or training: [1]

(b)  has not been certified by his or her education provider, as not achieving satisfactory course progress as specified,[2] and

(c)  has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified.[3]

[1] Condition 8202(2).

[2] Condition 8202(3)(a).

[3] Condition 8202(3)(b).

26.In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

27.Condition 8202(2)(a) states that a visa holder meets the requirements of the visa if the visa holder is enrolled in a registered course. In this case, according to PRISMS the applicant was not enrolled in a registered course of study from 19 April 2016. The NOICC was issued on 20 January 2017 and his visa was cancelled on 9 February 2017.

28.Therefore, on the evidence before the Tribunal, the applicant was not enrolled in a registered course from 30 June 2016 until 9 February 2016. Accordingly, based on the applicants own evidence and the documentary evidence provided to the Tribunal, it finds that the applicant did not meet the requirements of condition 8202(2)(a).

29.The Tribunal notes that enrolment in a course of study in a registered course was at all times, a condition of the applicant's subclass 573 Student (Temporary) (class TU) Higher Education Sector visa.

30.Accordingly the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

Consideration of the discretion to cancel the visa.

31.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’

Applicants purpose of traveling and staying in Australia.

32.During the course of the hearing the applicant confirmed that his intended purpose of traveling and staying in Australia was to study a Bachelor of Business.

33.The applicant’s was granted a (Temporary) (class TU) Higher Education Sector (subclass 573) on 18 November 2014 and arrived in Australia on 2 December 2014. On 20 February 2015 the applicant completed a Certificate IV EAL (further study) course and commenced a Bachelor of Business at Federation University on 23 March 2015.

34.The Tribunal is satisfied that the applicant’s intention at the time of his visa application was to travel and stay in Australia to study. As such, the applicant’s intention at the time of his visa application does not constitute a reason to cancel his visa. Accordingly, the Tribunal has given some weight to the applicant’s statement that the purpose of him traveling and staying in Australia was to study.

Compliance with visa conditions

35.The applicant has not been enrolled in a registered course since 19 April 2016. The applicant’s visa was cancelled on 9 February 2017. Accordingly, the applicant remained in Australia without having complied with the conditions of his visa from 19 April 2016 to 9 February 2017.

36.The Tribunal considers that applicant’s non-compliance with his visa conditions is significant and as such gives little weight in favour of the applicant in considering this factor.

The degree of hardship that may be caused to the Applicant. 

37.The applicant’s evidence was that his intention was to complete his studies so that he will be able to return to India and work in and take over his father’s electrical supplies business. The applicant’s evidence was that in the event his visa was he would suffer hardship by not being able to complete his studies in Australia. While the Tribunal recognises that the applicant has suffered hardship as a result of his visa being cancelled it places no weight on this consideration as it is a necessary consequence of the applicant having breach condition 8202(2)(a).

38.In addition he says that he will be shamed in the eyes of his family for not having finished his studies. Further, he said that his friends are now finishing their courses in India and indicated that he would be embarrassed and ridiculed by them as a result of not finishing his studies.

39.The Tribunal accepts that by not completing a Bachelor of Business the applicant will suffer some hardship in the event that he returns to India. However, in circumstances where the applicant was aware of the visa conditions, the Tribunal places little weight on the applicant evidence as to the hardship he may suffer in the future. Having known the conditions of his visa the applicant would have reasonably known that breaching the visa conditions would impact on his eligibility to continue as a student in Australia. In addition, there is no evidence as to why the applicant would not be able to continue his studies either in India or elsewhere.  As such, the Tribunal gives little weight in favour of the applicant in considering this factor.

40.The Tribunal notes that in the event the applicants via is cancelled he may become eligible to apply for a Bridging visa E which may allow him to remain in Australia in order to finalise any outstanding matters.

41.Nevertheless if the applicant’s visa is cancelled he will become an unlawful non-citizen and may be liable for detention under s.189 and removal under s.198 of the Migration Act 1958 if she does not depart Australia voluntarily.

The circumstances in which the grounds for cancellation arose

42.The applicant confirmed to the Tribunal that he was aware of the visa conditions and accepted that he had breached the visa condition by not being enrolled in a registered course.  However, he claims that as a result of the stress and anxiety he suffered as a result of being in a new environment and failing his first semester of the course, the applicant claims that he failed to ensure he was enrolled ina registered course in accordance with his visa conditions.

43.The applicant provided medical certificates dated 15 July 2015 and 25 November 2015 from Dr Mary Maha Murallidaran, a general practitioner from the Aplha Medical Clinic in Millbank Victoria in support of his claim that he had been suffering from depression and stress. The applicant did not provide any specialist medical report in relation to his mental condition. The medical reports provided by the applicant are poorly drafted and expressed in broad and vague terms. 

44.The report dated 15 July 2015 states as follows:

‘He has been my patient for 6 months and has been suffering from stress at the moment due to some un expected events. he needs deferment for his studies for 1 month. please consider his situation and help him.’

45.The report dated 25 November 2015 states:

‘has been my patient for the last 5 months. he has been suffering from lots of stress & depression. he would be able to do 1 or 2 subjects in this semester. please consider his situation and help him.’

46.The reports do not provide any detail as to the nature and number of consolations undertaken with the applicant nor does it state the basis upon which the diagnosis that the applicant had been suffering from depression and stress based. In particular the report dated 15 July 2015 notes that his stress is ‘due to some unexpected events’ but fails to identify the events that are said to be causing the applicants condition.  Finally, the reports are not consistent as to period of time the applicant is said to have been a patient of Dr Murallidaran. In the report date 15 July 2015 notes that he has been a patient for 6 months while the report dated 25 November 2015, despite being dated approximately 4 months later, refers to him having been a patient for a period of 5 months.

47.Finally, the Tribunal notes that the report dated 25 November 2015 confirms that applicant would have been able to ‘do 1 or 2 subjects’ for the semester in accordance with the conditions of his visa. 

48.While the Tribunal accepts that the applicant may have been feeling stressed and depressed following his poor exam results, it does not accept that his mental condition was such that he was not able to comply with the conditions of his visa. Given the fact that the medical reports are expressed in such broad and vague terms, fail to identify the cause of his mental condition and are inconsistent as to the period of time he had been a patient of Dr Murallidaran, the Tribunal places little weight on the medical reports provided by the applicant.  

49.Accordingly, the Tribunal finds that the applicant did not suffer from depression and stress to the extent that he was not able to enrol in a registered course in accordance with the conditions of his visa. In fact the Tribunal finds that the applicant was able to enrol in a registered course.

50.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

51.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

52.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

53.Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

54.The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

55.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

56.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

Jason Pennell

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.