SIDHU (Migration)

[2020] AATA 3514

SIDHU (Migration) [2020] AATA 3514 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs RAJPREET KAUR SIDHU

CASE NUMBER:  1713941

HOME AFFAIRS REFERENCE(S):          BCC2017/1424813

MEMBER:Meredith Jackson

DATE:17 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.

Statement made on 17 July 2020 at 2:56pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – marital problems – course progress – near completion of bachelor degree – significant hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

1. This is an application for a review of a decision, dated 27 June 2017 made by a delegate of the Minister of Immigration to cancel the applicant’s higher education sector visa (subclass 573), under section 116(1)(b) of the Migration Act 1958.

2. The applicant is a national of India, born on 31 December 1995. The visa that has been cancelled, a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa, was granted on 2 June 2014. That visa was subject to condition 8202. The issue 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. 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).

3. The delegate cancelled the visa on 27 June 2017 on the basis that the delegate was satisfied there is a ground for cancelling Rajpreet Kaur Sidhu’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa and was satisfied the grounds for cancelling the visa outweighed the grounds for not cancelling.

4. 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 2 August 2019 and on 17 June 2020, appeared by telephone to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   Evidence before the Tribunal

7. The primary decision records that Ms Sidhu was notified of the intention to consider cancellation on 1 June 2017 and the notice invited her to respond in writing.

8. The department records a brief series of emailed responses prior to an extended deadline of 16 June 2017 in which the applicant provided English test results and in which she accepted she had not complied with her visa conditions. She sought a further chance to continue her studies. Based on the information before the delegate, the delegate was satisfied there was a ground for cancellation for a breach of condition 8202 and that grounds for cancellation do exist under s.116(1)(b) for non-compliance with condition 8202. The delegate therefore decided to cancel the visa.

9. Ms Sidhu sought review and provided to the Tribunal a submission dated 19 June 2020 which included:

   • Academic Transcript from Asia Pacific International College for a Bachelor of Business Information Systems (BBIS) course in the applicant’s name, dated 19 June 2020 and showing a Grade Point Average of 4.417, with credit for eight units, and 12 units and three semesters completed; detailed course enrolment details
   • Divorce Order dated 18 December 2019 in relation to the applicant’s former marriage to Gurwinder Singh Malhi;
   • Statement of Enrolment and unofficial academic transcript showing a course end date of 25 September 2020 for the BBIS course and that the applicant is enrolled to complete the final four units;
   • Email to the Tribunal in which the applicant includes the statement: “I have never failed any subject after my husband’s departure from Australia as I felt safe and out of the mental torture situation (out of depression). I have already enrolled in last semester of the entire course.”
   • Statement dated 5 June 2020 in response to the invitation to attend the Tribunal hearing, concerning the applicant’s academic and personal circumstances; copy of statement dated 30 July 2019 provided with application for review, laying out points for consideration of compelling and compassionate circumstances of “physical and mental abuse by husband”;
   • Confirmation of Enrolment (COE) for the above course showing a course end date of 25 September 2020;
   • Academic transcripts for courses in English for Academic Purposes, Certificate IV in Business Administration and Diploma of Business (and relevant completion letters) ;
   • Health insurance card;
   • Medical records of treatment for depression on 10 October 2018, burn injury treated on 23 February 2015 and pregnancy treatment on 22 July 2016; maternity hospital record;
   • Birth certificate for applicant’s child Ehakneet Singh Malhi born in Sydney on 11 March 2017;
   • Detailed report dated 29 July 2019 from the applicant’s treating psychologist Charlotte Leung OAM concerning the applicant’s assessment and treatment for “extremely severe” depression, anxiety and stress and describing the applicant as a victim of domestic violence;

   Are the grounds for cancellation made out?

10. The issue in the current case is whether the ground for cancellation is made out and if so, whether the Tribunal should exercise its discretion to cancel the visa.

11. Ms Sidhu has acknowledged, including in oral evidence, that she ceased to be enrolled in registered course of study not later than 7 October 2016 and until 27 June 2017, the date of the primary decision. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for that period.  Accordingly, the Tribunal is satisfied the applicant has not complied with condition 8202(2).  Therefore, the ground of cancellation is made out.

    The discretion

12. Having found that Ms Sidhu has not complied with a condition of the visa, the Tribunal has considered whether to exercise its discretion to cancel the visa.

13. There are no matters specified in the Act or regulations that are required to be considered in relation to the exercise of this discretion however, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled and government policy guidelines contained in Departmental Procedures Advice Manual, known as PAM3.

14. The circumstances in which the cancellation arose are that Ms Sidhu came to Australia in June 2014 as an 18 year-old to pursue her parents’ expectations for study towards a future in medical science. She studied for a time in a Diploma of Laboratory Technology and it was intended to lead to a Bachelor of Medical Science. She completed only one semester of the Diploma course despite paying $37,000 in fees. In November of that year she claims her parents called her to India for a social event, but on arrival told her it was for the purposes of her marriage. The applicant married Gurwinder Singh Malhi on 7 December 2014. She arrived back in Australia in January 2015 without her husband. She continued to study the Diploma course but claims that depression led her to burn her arm in February of that year. She had been under pressure from her parents in law to seek a visa for her husband. In evidence she stated:

    I applied visa for him, and he came in October 2015.  And over here he threat me every day and torture me and I was very mental depression and he don’t want to go – he told me you can’t go outside.  I don’t have money for to pay your fees and you just do the work for your own self.  And he did like a very torture at that time.  And I complete – I didn’t completing my study at that time.  So that’s why I left my diploma.

15. This continued, she claimed, when she became pregnant in 2016 with the couple’s only child, Ehakneet Singh Malhi, who was born on 11 March 2017.

16. The marriage subsequently broke down; her former husband returned to India in August 2018. Ms Sidhu and Mr Malhi were granted a divorce on 18 December 2019. The child remains in the applicant’s care in Australia.

17. In response the Tribunal prior to and at her two review hearings, Ms Sidhu indicated that she was unable to study during the period of the breach because her marriage was a source of great distress to her and caused her to suffer severe medical conditions. 

18. The Tribunal has considered the applicant’s claims, which are supported by documentary evidence concerning severe depression, anxiety and domestic violence, and considers the claims that she suffered the depression as a result of violence to be credible. Her treating psychologist has provided evidence that Ms Sidhu had suffered severe depression, anxiety and stress as an outcome of domestic violence within her marriage.

19. The Tribunal went over Ms Sidhu’s study record with her in the second hearing and noted that she had gone on to complete a course in English for Academic Purposes in September 2017, a Certificate IV in Business Administration in 2018 and a Diploma of Business in December 2018. She had then enrolled in a Bachelor of Business Information Systems which she is due to complete in September this year. She claimed her study attendance had been made possible by family support and her former husband’s departure.

20. In relation to her absence from study during the period of breach, Ms Sidhu told the Tribunal at the first hearing:

    When I got my baby, I got a letter of cancellation from the Immigration and my husband left me.  And that time my parents were also here, and my sister was also here, and they supported me a lot.  So I finished a 12 weeks English course in ELICOS.  Then I finish Certificate IV in Business Administration.  Then after Certificate IV I finish Diploma of Business.  And after that I enrolled myself in Bachelor of Information System.  And I completed the first semester already … I’ve got only eight units left to complete my Bachelor Degree in Information Systems.

21. The Tribunal has had regard to the applicant’s study history since arriving in Australia and notes she has wasted time and considerable money in not completing the initial courses for which the visa was granted. She has also breached her visa conditions. However the Tribunal is also mindful that throughout the difficulties she experienced, she has managed to progress academically and has accrued three qualifications in a different field which she claims suits her better, and is four units from completing a degree, a Bachelor of Business Information Systems. Having completed three semesters with a satisfactory GPA, she is clearly making good progress now that her marital problems have been resolved by divorce.

22. The Tribunal considers hardship to the applicant would occur if the visa were to remain cancelled, in that it will limit qualifications for the applicant to complete the studies that she has undertaken and prevailed in, despite her distress at her circumstances  Given that the applicant is so near to completing her Bachelor of Business Information Systems, the Tribunal accepts that there would be significant hardship caused to her if the visa remains cancelled in that she will not be able to complete the course, in which she is making good progress. This would result in a waste of time and resources and would not fairly reflect the circumstances of the case.

23. The Tribunal does not consider that there are factors which make other discretionary considerations relevant. 

24. The Tribunal is satisfied that there were extenuating circumstances, beyond the applicant’s control, for the breach, which lasted approximately nine months.  Ms Sidhu’s conditions within her marriage were such that she suffered severe health effects throughout her marriage, pregnancy, young motherhood and beyond, a scenario not conducive to study. Yet Ms Sidhu has managed, in six years in Australia, to study productively, notwithstanding her period of non-compliance and complete three courses and a fourth, if she remains on track, meaning she will attain the Bachelor degree status she initially intended. Taking all into consideration, Ms Sidhu’s circumstances and academic progress lead the Tribunal to determine not to exercise its discretion to cancel the visa.

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.

    Meredith Jackson
    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.