SHARMA (Migration)

[2018] AATA 4596

SHARMA (Migration) [2018] AATA 4596 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs PARUL SHARMA

CASE NUMBER:  1700784

HOME AFFAIRS REFERENCE(S):           BCC2016/4204736

MEMBER:Jason Pennell

DATE:7 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 7 August 2018 at 12.01pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – registered course enrolment – voluntary course withdrawal – failure to attend University due to medical condition – permanent employment in Australia – corporative with Department and Tribunal – husband dependent on visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140
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 11 January 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 4 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jaswant Sharma (Spouse), who is the applicant's Husband (‘the husband’).  

4.The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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.

Background

7.The applicant was granted a Student (Temporary)(class TU) Higher Education Sector (subclass 573) on 5 September 2014. She travelled to Australia on 29 September 2014 having enrolled in a registered course of study, namely a Masters of Education at La Trobe University after initially having completed English for further study course.

8.The applicant commenced the course on 5 January 2015 and withdrew voluntarily from the course on 29 April 2016 and did not complete the course of study.[1] The applicant was on approved leave of absence from 25 August 2015 to 1 January 2016 due to medical reasons.

[1] Letter from La Trobe University dated 4 July 2018.

9.The applicant left Australia on 7 November 2015 and returned to Australia on 21 November 2015. The academic transcript from La Trobe University dated 31 July 2015 shows that the applicant failed one subject in the course.

10.A Notice of Intention to Consider Cancellation (NOICC) dated 30 December 2016 was sent to the applicant advising that she was in breach of a condition of her visa. The applicant responded to the NOICC by an email dated 30 December 2016. The applicant did not dispute the grounds for cancellation but rather advised the delegate that she was not to able to attend University due to her ‘medical condition.’ In addition she advised that her husband had applied for a 457 visa in which she was named as spousal partner. The applicant requested that her visa not be cancelled as she was waiting for the Department’s response in relation to her husband’s 457 visa application.

11.In response to the NOICC the applicant sent to the Department:

·Letter from Skilled Migration Services to the department dated 19 February 2018;

·Letter of Support dated 12 August 2015 by Dr Arooj Ali from Summerhill Medical Centre (‘Dr Ali’s report’).

·Undated document entitled ‘Short Case History’ by Ankur Chauhan of Sri Ram Hospital, New Shimia (‘the Chauhan report’). 

12.The delegate cancelled the visa on 11 January 2017 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 9 May 2016.

13.In response to the applicants application for review on 8 May 2018 the Tribunal sent an invitation for the applicant to attend a hearing of her application on 4 June 2018.

14.At the hearing the applicant provided the following documentation:

·Report by Dr Prabhudas dated 10 May 2017.

·Academic transcript from La Trobe University dated 31 July 2015.

·Letter from La Trobe University to the applicant dated 4 July 2018

·Email from La Trobe University to the applicant dated 22 June 2018.

15.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.

Did the applicant comply with Condition 8202?

16.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).

17.The delegate’s decision outlined that the applicant had not been enrolled in a registered course of study since 9 May 2016. The applicant responded to the NOICC dated 30 December 2016 by an email dated 30 December 2016. The applicant did not dispute the grounds for cancellation but rather advised that she was not to able to attend University due to her ‘medical condition.’ In addition she advised that her husband had applied for a 457 visa in which she was named as spousal partner. She requested that her visa not be cancelled as she was waiting for the Department’s response in relation to the 457 visa application.

18.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.

19.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

20.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.

21.During the course of the hearing the applicant confirmed that her intended purpose in traveling and staying in Australia was to study. In addition she stated that she wished to complete her studies. However, Provider Registration and International Student Management System (PRISMS) records that the applicant has not been enrolled in a registered course since 9 May 2016.

22.The applicant’s response to the NOICC and to the Tribunal was that her husband had applied for 457 visa in which she had been named as his spousal partner and that she was waiting for the department’s response in relation to her husband’s application. While the applicant insisted that she wished to complete her course of study. However,  fact that she had not been enrolled in registered course since May 2016 and that she was waiting on her husband’s 457 visa application leads the Tribunal to conclude that her intention is to remain in Australia on a permanent basis.

23.The applicants submissions dated 19 February 2018 make it clear that the applicant is currently working with Belong Pty Ltd, a Telstra subsidiary, having been hired in March 2017. The submission notes that the applicant has recovered considerably from her mental condition and that she is doing very well at work. Therefore, rather than continue with her study for the purposes of returning to India the applicant has appeared to have obtained permanent employment with the view of remaining in Australia.   

24.Accordingly, the Tribunal gives little weight to the applicant’s statement that the purpose of her traveling and staying in Australia was to study. 

Compliance with visa conditions

25.The applicant has not been enrolled in a registered course since 9 May 2016. The applicant has not re enrolled in the course due to the fact that she did not want to pay another fee to repeat the failed subject she failed. The applicant has remained in Australia without having complied with the conditions of her visa. As such the applicant’s non-compliance is significant and as such the Tribunal gives little weight in considering this factor.

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

26.The applicant did not raise any specific matters of hardship in the hearing. Therefore, while the Tribunal notes that some hardship will be caused to the applicant in the event that her visa is cancelled including not being able to complete a registered course in Australia and being required to depart Australia, the Tribunal notes that she will be eligible to apply for a bridging visa which may allow her to remain in Australia so that she can finalise any outstanding matters including her husband’s 457 visa application.

27.The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act she may have limited options available to her if applying for further visa in Australia. In addition she will be subject to Public Interest Criterion 4013 which means that she may not be granted a temporary visa for three years from the date of cancellation.

28.The Tribunal however, accepts that if the applicant’s visa is cancelled she will suffer some hardship by having to return to India and as such it has given some weight to hardship the applicant will suffer in the event her visa is cancelled in making its decision.

The circumstances in which the grounds for cancellation arose - Applicant’s mental health

29.The applicant says that she was not able to continue with her study as she suffered from severe mental stress and depression as a result of having failed one subject in her course. Her evidence was that she had been an excellent student in India and that she was in the habit of achieving high academic result. Her evidence was that upon failing a subject she had become so depressed that she was not able to return immediately to her study. She said that as a result of her mental trauma she returned to India to receive professional help and support from her family.  The Tribunal accepts the applicant’s evidence that she had achieved high academic results in India. However, it does not accept that she became so depressed as a result of having failed one subject in her course that she was not able to continue with her study.

30.Dr Ali’s report states that she ‘was unfit for work from 12 August 2015 to 29 November 2015 inclusive.’ The report is dated 12 August 2015 and curiously refers to the future dates in which it says she will not to be fit for work or study in the past tense. Nevertheless, despite the difficulties of the wording of the report is expressed in the broadest of terms and merely asserts that the applicant has a mental condition without any explanation or examination of the applicant’s symptoms in forming its diagnosis of the applicant. It merely states that the applicant attended Dr Ali’s clinic because of ‘a medical condition (stress may need to see a psychologist).’ Accordingly, the Tribunal places little weight on Dr Ali’s report.  

31.The applicant applied for and was granted a leave of absence by La Trobe University from 25 August 2015 until 1 January 2016.

32.The Chauhan report states that the applicant presented herself to the hospital in New Shimuia, India on 10 November 2015 and lists a broad range of symptoms that the applicant claims to have been suffering including ‘anxiety, loss of interest, hopelessness, mood swings sadness, insomnia sometimes excess sleep, fatigue even with less work, restlessness behaviour wise looked irritated, lack of concentration (poor cognitive power), weight gain and repeatedly going overthought.’ The report notes that the applicant was examined and was found to have an ‘irregular rhythm and poor respiratory cycle with generally poor physical condition.’

33.The report notes that the applicant received some medication and that after 10 days she had a ‘follow up’ and was found to be improved. The applicant returned to Australia on 21 November 2015. While, the report describes the applicant’s symptoms in broad terms and notes that she was in generally poor physical condition, there appears no reason why the applicant would not have been able to arrange to be enrolled in a course of study in accordance with the conditions of her visa. The Chauhan report notes that she had received treatment and that her condition was improving. Therefore, having been able to arrange a leave of absence and travel to India prior to receiving any treatment, there appears to be no reason why she was not able to arrange for her enrolment in a course of study in accordance with her visa conditions upon her return to Australia.

34.The report by Dr Prabhudas was considered by the Tribunal. It appears to be a prescription for medication for use by the applicant, the use for which was not made clear to the Tribunal but presumably for the applicant’s mental condition. However, it does not assist the Tribunal as it does not describe her condition, the precise reason for the medication or how it may affect the applicant. Accordingly, the Tribunal places little weight on Dr Prabhudas report.

35.Therefore, while the Tribunal is prepared to accept and find that the applicant suffered from a medical condition, the  fact that the medical reports provided by the applicant are expressed in broad terms and fail to provide describe how the applicants mental condition affected the applicant, based on the fact the applicant was able to arrange a leave of absence and travel to India at a time when she was untreated, the Tribunal finds that she was capable to complying with her visa conditions and enrolling in a registered course of study.  On the applicants own evidence she was able to arrange a leave of absence and travel to India at a time when she had not received any treatment. The applicant received treatment in India and despite her improving condition failed to comply with her visa conditions after returning to Australia from India on 21 November 2015.  

36.The applicant claims there was a misunderstanding between her and the University. However, she did was not able to provide any correspondence to the Tribunal by which her enrolment in a registered course with La Trobe University or any other Institution was confirmed.

37.Therefore based on the evidence before the Tribunal the applicant has not been enrolled in a registered course of study since 9 May 2016. As such she has not complied with paragraph 8202(2)(a) of condition 8202. In addition the applicant has not been able to provide any valid confirmation of enrolment and as such she remains in breach of condition 8202.

38.Accordingly, the Tribunal is satisfied and finds that the applicant’s mental health is not a valid reason why the applicant’s visa should not be cancelled. As such the Tribunal has given little weight in the applicants favour when considering this factor.  

Past and present behaviour of the applicant

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

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

40.The applicants husband, Jaswant Sharma, visa would be cancelled under s.140 in the event that the applicant’s visa is cancelled. There is no evidence that this would lead to a split in the family unit and as such the Tribunal has placed little weight on this consideration in her favour.

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

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

Other relevant factors

42.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. 

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

DECISION

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

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.