Sidhu (Migration)

[2019] AATA 3472

Sidhu (Migration) [2019] AATA 3472 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Inderpal Singh Sidhu

CASE NUMBER:  1816222

HOME AFFAIRS REFERENCE(S):          BCC2018/908571

MEMBER:Peter Booth

DATE:1 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2019 at 4:51pm

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 – reasons for non-compliance – medical condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 1 June 2018 made by a delegate of the Minister for Home Affairs 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 did not comply with condition 8202 (2) (a).  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 18 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Harminder Singh, who is the applicant’s housemate.  

4. 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

5. 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?

6. 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).

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

8. The applicant gave evidence that he was not enrolled in a registered course of study from 14 August 2017. He said that prior to 14 August 2017 he had been enrolled in a business management course which was cancelled on or about 14 August 2017. He said that his visa was cancelled on 1 June 2018 and that he had not been enrolled in any course of study between 14 August 2017 and 1 June 2018. 

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course.

10. 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 Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines as follows:

    ·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

    The applicant gave no evidence as to whether he had a compelling need to travel to or remain in Australia.  However, the Tribunal assumes that the purpose of the applicant’s travel to and stay in Australia, was for the purposes of study.

    ·The extent of compliance with visa conditions

    The applicant gave evidence that he has not been enrolled in a registered course of study subsequent to 14 August 2017.

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

    The applicant gave no evidence as to any degree of hardship which may be caused (financial, psychological, emotional or other hardship) as a result of the cancellation of his visa. However, the Tribunal accepts that there will be some financial hardship in the form of unrecoverable course fees or expended course fees.

    Further that there will be or may be some emotional hardship in the form of disappointment, or perhaps embarrassment, in not completing his intended course of study.

    ·Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    In answer to a question from the Tribunal, the applicant said that that he had not attended his course because he was suffering from asthma.  He said that whilst the asthma did not prevent him from attending classes, he was concerned that he would have an asthma attack and therefore did not go to classes. He said that he had commenced a Business Management course in February 2017 but did not go to classes at all, for that reason.  He said that he went to see a medical practitioner and obtained some medicine. He also said that he obtained medicine by post from India.  He said the medicine was in the form of an inhaler which treated the asthma quite well, but that on occasions he did attend the hospital emergency departments. He said that he attended the hospital emergency department on about three or four occasions during the period February to August 2017.

    At the emergency departments he said they gave him “a Panadol and oxygen, and took some x-rays”.  He was never hospitalised, and said that on each occasion he was discharged after one or two hours. He added that he became depressed about his condition but, in answer to question from the Tribunal, said that he had never approached the course provider seeking a deferral of his studies.

    The applicant produced several documents from Indian medical practitioners demonstrating that he had obtained scripts for asthma medication, as well as another minor condition. He said that he had not been examined by the medical practitioners at the time and that the scripts had been arranged by members of his family in India, the applicant having been in Australia at that time. He also produced two medical certificates, again from Indian medical practitioners, one dated 29 May 2019 and another dated 10 February 2017. The applicant said that he had been examined by one doctor for the purposes of the certificate which dealt with depression and had not been examined by the other doctor. In answer to question from the Tribunal he said that he had never been prescribed any medication for depression.

    The applicant also produced an invoice from the Westgate Medical Centre dated 9 January 2018.  He explained that this was in relation to an asthma attack where he was put on a ventilator for a short time but not hospitalised. The second invoice was from a medical clinic in Tarneit dated 26 November 2017. The applicant explained that this was in relation to an asthma attack and that he had been x-rayed but not hospitalised overnight. The third series of invoices were from Westgate Medical Centre and dated 2 January 2018, 4 January 2018 and 6 May 2018. The applicant explained that these were all in relation to asthma attacks. He also produced a letter from a medical practitioner dated 26 November 2017 in relation to his condition. The Tribunal accepts that the applicant suffers from asthma and occasionally has had acute asthma attacks which have required some medical intervention, but not to the extent of hospitalisation.

    In answer to a question from the Tribunal, the applicant said that he had not informed the course provider of his medical condition because he was “depressed and afraid”.Whilst the Tribunal accepts the applicant suffers from asthma and has had acute attacks, the Tribunal was not convinced that this is a sufficient reason to excuse the applicant’s failure to attend courses and maintain a current enrolment. Whilst the applicant has had the occasional need for medical intervention he has never been hospitalised with this condition and has given no evidence that he could not have studied during the periods where he was well, either by attending courses or by online participation.  

    To the extent that the applicant has also mentioned some depression this did not feature largely in his evidence, and the Tribunal is unconvinced that it was a significant factor.  

    The Tribunal also heard evidence from Mr Harminder Singh, who shares a house with the applicant.  Mr Singh said that he had taken the applicant to medical centres on various occasions because the applicant revealed he was unable to drive due to coughing. The Tribunal accepts the evidence of Mr Singh. The evidence of Mr Singh is consistent with the applicant’s evidence, namely that on occasion he was unwell with asthma and needed some medical intervention. 

    On balance the Tribunal does not accept that the reason for the applicant’s failure to maintain enrolment was beyond his control.

    ·Past and present behaviour of the visa holder towards the department

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·Whether there would be consequential cancellations under s.140

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·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

    The Tribunal accepts that there may or will be legal consequences arising pursuant to the visa cancellation, however, they have been given little weight because they are the intended consequences of Parliament when enacting the relevant migration legislation.

    ·Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

    There was no evidence in relation to this factor and the Tribunal gives it no weight.

    ·Any other relevant matters.

    There was no evidence in relation to any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth
    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.