Shukla (Migration)

[2019] AATA 6074

Shukla (Migration) [2019] AATA 6074 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prajesh Priyakant Shukla

CASE NUMBER:  1719682

HOME AFFAIRS REFERENCE(S):          BCC2017/2013246

MEMBER:Mark Bishop

DATE:4 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 October 2019 at 9:31am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass  500 (Student) – repeated requests for postponement of hearings – no appearance by applicant at hearing – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – cessation of study soon after course started – significant period of non-enrolment – medical condition not declared on visa application – mental health – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 360, 362A, 362B, 379A(4)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

Administrative Appeals Tribunal Act 1975 (Cth), s 2A

CASE

MIAC v Li (2013) 249 CLR 332

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 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 9 September 2019 The Tribunal wrote to the applicant and invited him to attend a video hearing on 2 October 2019. As part of that hearing invitation the Tribunal advised the applicant "...we will only change this date if satisfied that you have a very good reason for being granted an adjournment”

4. At 3.46pm on 13 September 2019 the newly appointed Migration Agent (MA) for the applicant wrote to the Tribunal and advised of appointment. In the same correspondence and “…in light of this recent change in representation…” the MA requested a postponement of the scheduled hearing of 2 October 2019 to a later date. The MA did not further particularise the request for postponement.

5. On 16 September 2019 the Tribunal wrote to the applicant in the following terms

   ·    On 13 September 2019 we received a request that the hearing be postponed. The Member has considered the request carefully but has decided not to postpone the hearing.

   ·    We note that on 13 September 2019 you requested access to documents under s 362A of the Migration Act 1958. The Tribunal normally aims to process these

   requests within 14 days.

   ·    However in this instance, due to your upcoming hearing on 2 October 2019, the Member has asked that this process be expedited so it will be processed within three days. As a result we do not consider that a postponement is necessary.

   ·    The hearing will therefore proceed as set out below

6. On 17 September 2019 the Tribunal provided information in writing pursuant to a s.362A request for access to documents. The Tribunal provided the following information:

   ·Departmental assessment notes;

   ·NOICC letter dated 26 July 2017;

   ·Notice of extension to provide written response to NOICC;

   ·Further request for extension to respond to NOICC and reasons for refusal of further extension;

   ·Discharge notice from Concord General Repatriation Hospital showing admission date of 31 August 2016 and discharge date of 2 September 2016 with principal diagnosis of “iron deficiency anaemia, PR bleeding and internal haemorrhoids and principal procedure of Upper GI endoscopy and Colonoscopy. The summary advised “normal oesophagus, normal stomach and normal examined duodenum”;

   ·Letter of referral from a Dr Sabita Banik dated 31 August 2016 re the applicant;

   ·Written response to NOICC with attached psychological assessment report made after a Skype consultation of 1.5 hours on 4 August 2017. The psychologist stated at paragraph 31 of the report  “that he never consulted a Psychologist or Psychiatrist in India or Australia because of psychological and behavioural problems prior to his consultation with me and was never prescribed psychotropic medication for mental health problems, whether in India or Australia”;

   ·Notice of Cancellation dated 23 August 2017;

   ·Copy of decision record;

   ·Departmental file notes;

   ·Notice of appointment of MA and Hearing request date;

   ·Request for s.362A written material;

   ·Notice of Hearing;

   ·Applicant PRISMS record;

   ·Applicant Movement record;

   ·Notice of Constitution;

   ·Change of address details;

   ·Acknowledgement of Application for Review;

   ·Passport detail;

   ·Copy of Notice of Cancellation dated 23 August 2017;

   ·Copy of decision record;

   ·Copy of review application to AAT.

7. On 17 September 2019 the MA advised the Tribunal he would be unable to attend the hearing and requested a telephone hearing. On 23 September 2019 the MA advised the Tribunal the applicant would attend the hearing in person but the MA would attend the hearing by teleconference. On 24 September 2019 the MA for the applicant confirmed this advice in writing.

8. On 25 September 2019 the MA for the applicant advised the Tribunal in writing as follows:

   ·On the 13th September we notified your office that we had only just taken over the AAT representation for our Client, Mr Prajesh Priyakant Shukla and we requested an extension of time to respond to the AAT request letter.

   ·A representative from the AAT replied that an extension will not be granted on the 16th September.

   ·We are sure the AAT is aware that visa cancellation issues are one of the most complex files a representative can arrange formal responses and arguments on behalf of clients.  Our office believes that the decision not to grant an extension of time to present these arguments demonstrates prejudicial bias towards our client and also makes our client apprehensive about whether the hearing itself will be unbiased. The decision not to grant an extension it has also placed him under considerable stress in relation to these proceedings.

   ·The AAT requested date for a bearing submission (which is today) regarding this application even though it was only possible to obtain a copy of his file 4 days ago. A formal reply to the AAT request cannot possibly be met by any reasonable standard of natural justice. For the record however there are considerable grounds that existed at the time not cancel his student visa.

9. The MA for the applicant did not further particularise matters relating to “prejudicial bias towards our client” nor did the MA particularise the assertions relating to “…our client apprehensive about whether the hearing itself will be unbiased. The decision not to grant an extension it has also placed him under considerable stress in relation to these proceedings…”

10. The Tribunal turns to consider this material. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In this case the applicant has put a number of requests for adjournment.

11. The Tribunal is not aware of any basis for linking the notice of date of a review hearing to “prejudicial bias” and “considerable stress”.  If this was the case the Tribunal would expect some submissions, supporting documentation or professional opinion. The Tribunal has not received any such material.

12. The applicant did not attend the hearing as scheduled. Instead he provided a medical certificate dated 2 October that stated “He [Mr Shukla] is going through significant stress for issues related to his immigration issues which is negatively affecting Mr Shukla’s mental wellbeing, affecting his sleep, mood disturbance and significant insomnia. Due to the conditions listed above he was medially unfit to attend the hearing and his usual work”

13. Excluding the medical certificate referred to above in paragraph 12 the applicant did not  provide to the Tribunal any psychiatric, psychological medical or other professional reports relating to stress or otherwise related to an inability to attend a hearing because of stress related factors.  The medical certificate referred to above in paragraph 12 did not state the qualifications of the relevant doctor.  It did not outline his experience and qualifications to determine a person was unfit to attend a hearing. It did not provide a diagnosis of his condition. It provided a list of symptoms related to “immigration issues”. It did not outline the detail of those “immigration issues”. The Tribunal is not aware if the “immigration issues” relate to the cancellation of the student’s visa some time ago by the delegate, the scheduling of the hearing, the repeated requests for postponement of the scheduled hearing date, the non-attendance of the applicant at the scheduled hearing, an as yet unknown outcome of the hearing or the possibility of the Tribunal making a finding to affirm the decision of the delegate to cancel the applicant’s visa. Except as outlined above the applicant has not provided commentary on those “immigration issues” to the Tribunal.

14. Attendance at scheduled hearings is significant matter. The applicant has made repeated applications to postpone scheduled hearings. The detail is outlined above. Different reasons have been advanced at different times. Those reasons are outlined above.  The applicant has been repeatedly advised by the Tribunal in writing "...we will only change this date if satisfied that you have a very good reason for being granted an adjournment”. The Tribunal has considered each request in a reasonable manner and provided material assistance to the applicant in truncating times for providing information or speedily responded to requests for postponements.

15. Secondly the MA for the applicant will be overseas at the date of the hearing. The Tribunal has made arrangements for the MA to attend by teleconference. Tribunal scheduling processes are not dependant on the availability of particular agents who make a decision to allocate a particular time to another matter that is deemed to have greater priority. Thirdly the legislative scheme governing the Migration and Refugee Division (MRD) of the Tribunal gives only a limited role to advisers at the Tribunal hearing. In practice, advisers are generally permitted to be present and to participate at the hearing. This is usually limited to the making of oral submissions at the end of the hearing.

16. The Tribunal is aware s.2A of the AAT Act provides that in the carrying out its functions, the Tribunal must pursue the objective of providing a mechanism for review that is “… (b) fair, just, economical, informal and quick…” (emphasis added).The use of the word “quick” is a somewhat unusual word to use when outlining the objective of providing a mechanism for review. It is not found in the objectives of like Tribunals or review agencies. It is a direction to the Tribunal from the Parliament as is all of s.2A. The Tribunal gives it no particular significance. The Tribunal notes it is one of many considerations in the Act. The Tribunal is not minded to delay its review hearing processes concerning the review applicant on the basis of assertions, unsupported by professional opinion or other evidence that the applicant is fearful of “prejudicial bias” and is under “considerable stress” or is unable to attend an immigration [review] hearing because of unspecified ‘immigration issues” 

17. Finally the Tribunal notes the applicant has had since at least 23 August 2017 notice of cancellation of his student visa in relation to matters of non-enrolment in a registered course of study from 26 October 2016. That period from 23 August 2017 until the present time is more than adequate to prepare for a hearing. It is more than adequate time to obtain psychiatric, psychological medical or other professional reports relating to stress that relates the stress to an inability to attend a hearing. In particular the applicant has had since at least 9 September 2019 (date of first notice of scheduled hearing) the option of obtaining such a report as presumably the symptoms identified in the medical certificate of 2 October 2019 as outlined in paragraphs 12 above manifested themselves prior to the beginning of October 2019.

18. In the current review application the Tribunal is satisfied the applicant has been provided with adequate notice of date of hearing, has retained an agent and was able to provide submissions to the Tribunal if deemed appropriate. In any event it is the intention of the Tribunal to have regard to all material on both the Tribunal and Departmental files.

19. The applicant did not appear before the Tribunal on 2 October 2019 at the scheduled time and place. Having reviewed the Tribunal file (and outlined it above), the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

20. The applicant provided a copy of the decision record to the Tribunal.

21. 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

22. 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?

23. 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).

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

25. The applicant was notified of the intention to consider cancellation (NOICC) on 26 July 2017 by email and the notice invited the applicant to respond in writing. The applicant did respond on 9 August 2017.The applicant provided reasons why the visa should not be cancelled. See below at paragraph 40. The applicant agreed there had been non-compliance.

26. The delegate made a finding that based upon available evidence in PRISMS the applicant was not enrolled in a registered course of study after 26 October 2016. Accordingly the delegate determined the applicant did not meet the requirements of condition 8202(2)(a).

27. 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).

28. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa

    Consideration of the discretion to cancel the visa

29. 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’

    Consideration of discretion

30. 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’.

    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

31. The delegate made a finding that in the application process for his TU500 visa he advised the purpose of his travel to Australia was study. He enrolled in a Master of Business Administration. His visa was granted on 27 September 2016. The Applicant ceased study in his MBA on 21 October 2016.This rapid change may indicate the applicant’s original purpose was other than to study in Australia. However there is little evidence before the Tribunal to suggest the applicant’s original purpose in coming to Australia was not to study.

32. The Tribunal gives this consideration little weight in favour of the applicant

    The extent of compliance with visa conditions

33. The applicant was not engaged in a course of study after 26 October 2016. The date of the delegate’s decision was 27 August 2017. This is a significant period of non-enrolment.

34. The Tribunal gives this consideration little weight in favour of the applicant.

35. 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 finds the length of the breach significant in terms of the usual time period of study.  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)

36. The applicant may be caused some financial difficulty if his visa is cancelled. Whilst the Tribunal acknowledges some hardship may be caused to the applicant should the visa be cancelled and he is required to depart Australia, the Tribunal notes that he may apply for a Bridging Visa E, which may allow him to finalise any outstanding matters.

37. The applicant will become an unlawful noncitizen and be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he does not voluntarily depart Australia.

38. The applicant will be subject to Section 48 of the Act which means he will have limited options to apply for further visas in Australia and may be required to return to his country of origin.

39. The applicant will be subject to Public Interest Criterion 4013, as a result of this cancellation.

40. Although there may be some hardship to the applicant as a result of the cancellation, the Tribunal notes that there is no evidence to suggest the visa holder could not complete his studies outside of Australia.

41. The Tribunal gives these considerations little weight in the applicant’s favour.

    Circumstances in which ground of cancellation arose

42. The applicant was not enrolled in a registered course after 26 October 2016.

43. In his response to the NOICC the applicant addressed the following:

    ·He came to Australia to study. Study work and personal life were difficult. He had not previously been away from his family. He struggled and failed subjects.  He believes he was given bad advice;

    ·He has suffered from epilepsy since 2005. He suffers seizures and attacks;

    ·His father was admitted to hospital in August 2016. He spent three days in hospital in September with iron deficiency. He was unproductive and his second semester was a waste. He planned to re-enrol in December 2016;

    ·He worked casually in the hospitality industry. He receives remittances from his father. He has applied to do further study.

1. The Tribunal turns to consider the submissions of the applicant as summarised and copied in full in the decision record :

   ·The applicant did not provided any documentary evidence to support his claims of attempted re-enrolment and advice from his education provided as to the status of his COE. He did not provide any evidence to suggest he took action to re-enrol voluntarily without his education provider’s help. The Tribunal considers it reasonable to expect the applicant to place great effort in researching information, options or suitable courses taking into consideration he is holding a temporary visa, granted for the sole purpose of study.

   • The applicant advised that since 2005 he saw doctors to seek medical help for his medical condition of epilepsy. Due to his medical condition he experienced seizures, attacks and loss of consciousness. He experienced these attacks during his enrolment at Charles Stuart University and Holmes Institute. While the Tribunal takes into consideration the applicant’s illness the Tribunal and the period of time he has had the illness since 2005 the Tribunal is inclined to the view it is reasonable  to expect the applicant has a medical plan to manage his illness, which would assist in managing his health, enabling him to achieve his desired qualifications.
   • The applicant did not provide any medical reports advising of his medical condition epilepsy, from his treating doctor;
   • The applicant provided a Medical certificate from Strathfield Medical Centre, Dr Sabita Banik dated 31 August 2016 advising of a separate medical condition. This medical certificate referenced the applicant’s past history as having epilepsy.  The applicant provided a discharge referral eMeds document dated 2 September 2016, for Iron deficiency anaemia, with the letter referencing B/G: Epilepsy;
   • The delegate made a finding that as the applicant advised he was diagnosed with epilepsy in 2005 it would be expected he declared his medical history with the Department. When referring to the TU 500 visa application lodged on 16 August 2016 the delegate reviewed relevant records and made a finding the applicant did not declare his medical condition of epilepsy. Further the delegate stated under health declarations, the applicant was asked questions, whereby he answered as not having any significant medicals issues;
   • The Tribunal considers it be reasonable to expect the applicant truthfully declare all medical conditions he has been diagnosed with. It appears he has not done so upon application of his TU 500 visa. The Tribunal does not consider there is sufficient evidence to suggest the applicant was impacted severely by his medical illness and this impact may have prevented him from continuing his studies;
   • There is no documentary evidence to support the applicant’s claims concerning his father’s illness and subsequent operation. The Tribunal considers it reasonable the applicant would have provided evidence of such an occurrence;
   • The applicant provided a medical report from Concord Repatriation General Hospital indicating he was admitted to hospital due to an Iron deficiency on 31 August 2016, and discharged on 2 September 2016. There is no indication the visa holder was recommended to cease work or study for a prolonged period that would explain non enrolment since 26 October 2016 to the date of the delegate’s decision;
   • The delegate referred to PRISMS and made a finding there was no indication the applicant was enrolled in a Diploma of Business with Gems School of Management. The applicant did not provide any documentary evidence to support his claim of completion of the Diploma.
   • The Tribunal is aware a student visa holder can only study and be enrolled in a registered course of study with an education provider who is registered with the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) to successfully meet the visa conditions attached to the visa, particularly 8202 visa condition. There is no evidence before the Tribunal that Gems School of Management is a CRICOS registered education provider.

2. The applicant provided a Psychological Assessment Report assessed by psychologist Edwin Kleynhans dated 7 August 2017, advising the visa holder was assessed by him on 4 August 2017 via Skype. The report reiterates the applicant’s submission. The report made a number of findings as follows:

   ·The applicant’s medical state would have been similar when he could not focus on his studies in the period 2016/2017;

   ·He had problems relating to depressed mood and generalised anxiety as well as worry about his medical problems. He recommended psychological treatment for a period of 12 months. The applicant wished to discuss treatment goals;

   ·The applicant needs counselling to focus on assertive skills training as well as stress management which should assist with epilepsy;

   ·Counselling could run parallel with his studies at university.

3. The applicant did not make any information available to the Tribunal that might outline any course of treatment after 7 August 2017.

4. The applicant did not provide any additional, further or subsequent psychological or medical reports that addressed his condition.

5. The Tribunal has considered this report. The applicant was not enrolled in a course of study after 26 October 2016.  It appears likely the applicant only sought professional advice on 4 August 2017 after the NOICC was issued dated 26 July 2017. It appears likely the applicant only took action as a response to the NOICC. There is no evidence to suggest the applicant voluntarily sought the services of a psychologist or counsellor during the non-enrolment period. There is no evidence to demonstrate the applicant actively sought assistance to better cope with his mental state or to obtain a medical treatment plan to aid in his recovery, enabling his return to study.

6. While the Tribunal gives some weight to the fact the applicant eventually sought help and had a treatment plan the Tribunal does not consider this would have occurred without the risk of a visa cancellation.

7. The Tribunal notes that in the report there is no recommendation indicating the applicant was unable to physically study during the non-enrolment period and there is no indication the applicant could not have managed to undertake a medical treatment plan without studying.

8. The Tribunal gives the above relevant factors little weight in the visa holder’s favour.

9. Past and present behaviour of the visa holder towards the department

10. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

    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

11. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

12. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

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

14. Any other relevant matters

15. The Tribunal is not aware of any other relevant matters.

16. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-573 visa and that a breach of almost twelve months is significant in the context of a student’s study period.

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

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mark Bishop
    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.