SIDHU (Migration)

[2017] AATA 2755

SIDHU (Migration) [2017] AATA 2755 (15 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs DALJEET KAUR SIDHU
Mr GURJEET SINGH SIDHU

CASE NUMBER:  1614904

DIBP REFERENCE(S):  BCC2016/2438284

MEMBER:Mr S Norman

DATE:15 December 2017

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 15 December 2017 at 3:07pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in registered course – Applicant not enrolled in registered course – Financial hardship - Consequential cancellation – No jurisdiction in relation to consequential cancellations

LEGISLATION
Migration Act 1958, s 116, 140, 189, 198, 348
Migration Regulations 1994, Schedule 4, PIC 4013, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 September 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The Department delegate’s decision was lodged with the Tribunal.

3. The delegate cancelled the visa on the basis that the applicant breached condition 8202 (enrolment). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

5. The applicants appeared before the Tribunal on 14 December 2017 to give evidence and present arguments. Only the applicant (Mrs DALJEET KAUR SIDHU) gave evidence, as when asked the applicant husband (Mr GURJEET SINGH SIDHU) said he did not propose to give any evidence at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  

6. The applicants were represented in relation to the review by their registered migration agent.

7. 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

8. 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?

9. 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).

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

11. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 10 March 2015. By Notice of Intention to Consider Cancellation (NOICC) of that Student visa dated 17 August 2016, the applicant was advised that based on the evidence on the Provider Registration and International Student Management System it appeared she had not been enrolled in a registered course of study since 17 June 2015. It therefore appeared the applicant did not meet the requirement of condition 8202(2)(a); and was thus in breach of s.116(1)(b) of the Act.

12. In her email response dated 23 August 2016, the applicant said “for the first six months she attended all his classes”; she finished all courses “very well”; she paid fees on time; she then got news that her son was suffering; she and her husband did not make enough money; she was then depressed because she had to choose between paying for tuition or her child’s medical expenses; they decided to spend the money on treating their child; she could not then concentrate on studies; she understands that she has made a mistake; but she did not have any other choice. Now her son is feeling better since “last one month and she was trying to start her study back again”.

13. When discussed at hearing, the applicant conceded that she had failed to maintain enrolment in a registered course as noted above.

14. After considering the evidence, the Tribunal is satisfied 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

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. 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 the Department’s Procedures Advice Manual (PAM3).

16. Regarding the purpose of the applicants travel to and stay in Australia, at hearing the applicant said she had married in 2009 and a ‘few months later’ she and her husband travelled from the Punjab India, on a Student visa (the husband being a dependent). She then said she was granted further Student visas until March 2015. Prior to March 2015, the applicant said she had studied courses up to the Diploma level. In March 2015, the applicant was granted a Higher Education Student visa as she wished to study a Bachelor of Business. However, the applicant then ceased her enrolment in a registered course of study from 17 June 2015. After considering all the evidence set out herein, the Tribunal is not satisfied the applicant’s present intention in residing in Australia, is for the purposes of study.

17. Regarding the extent of the applicant’s compliance with any conditions to which her Student visa was subject, based on the evidence before the Tribunal the applicant had not been enrolled in registered course of study since 17 June 2015, which at the time of the delegate’s decision was approximately 14 months. The Tribunal believes this breach significant.

18. Regarding the degree of hardship that may be caused to the applicant or her family members if her visa is cancelled, the Tribunal accepts that if her visa is cancelled the applicants would become unlawful noncitizens and liable to detention under section 189 and removal under section 198 of the Act. The Tribunal is not satisfied she would be subject to indefinite detention; and I am satisfied she could apply for a Bridging visa and remain lawfully in the community in order to finalise their affairs prior to departing. If her visa is cancelled she would also be subject to s.48 of the Act which means she would have limited options for applying for further visas in Australia. Further, and as noted by the applicant at hearing, she would be subject to PIC 4013; which means she may not be granted certain visas for three years from the date of visa cancellation.

19. When discussed at hearing, the applicant also said she would not find work in India. The country information stated:

    2.13 The World Bank classifies India as a lower middle income country. India ranked 135 out of 187 in the United Nations’ Human Development Index (HDI) for 2014. An estimated 22 per cent of the population live below the national poverty line. However, poverty rates in India’s poorest states (including Chhattisgarh, Jharkhand and Manipur) are three to four times higher than those in wealthier states (including Goa, Punjab and Kerala). While income inequality (as measured by the Gini index) increased from 30.82 in 1994 to 33.38 in 2005, it has since plateaued and was last measured at 33.60 in 2012.[1]

    [1] DFAT Country Information Report, India, 15 July 2015.

20. The Tribunal put the gist of this information at hearing. The applicant had also said she and her husband are the eldest children in their families and they “wished to make something of themselves”. The Tribunal notes the applicant’s home region in India is the Punjab (one of the wealthier States in India), that she had claimed to have successfully completed Diploma level courses in Australia, and I am therefore satisfied she (and her husband) could seek work commensurate with their skills in India.

21. Regarding the circumstances giving rise to the ground for cancellation, the applicant had not been enrolled in registered course of study since 17 June 2015. In her email response dated 23 August 2016, the applicant said “for the first six months she attended all his classes (though as stated at hearing, this was incorrect as she ceased her enrolment around three months after the Higher Education Student visa was granted); she finished all courses “very well” (which the Tribunal understands is a reference to her Diploma level courses); she paid fees on time; she then got news that her son was suffering; she and her husband did not make enough money; she was then depressed because she had to choose between paying for tuition or her child’s medical expenses; they spent the money on treating their child; she could not then concentrate on her studies; she understands that she has made a mistake; but she did not have any other choice. Now her son is feeling better since “last one month and she was trying to start her study back again”.

22. At hearing, the applicant conceded she did not seek any medical assistance for her claimed depression. She said she did not know what to do. When asked what had brought this on, for the first time, the applicant referred to the death of her mother (when discussed, she said she did not know why she had not mentioned this previously – which the Tribunal does not accept is a reasonable explanation). After further discussion at hearing, the Tribunal understood the mother had passed away on 25 March 2013 (a death certificate was lodged with the Tribunal on 15 December 2017). However, the Tribunal is not satisfied this constitutes an explanation for the applicant not continuing her studies from June 2015. The applicant said she was “lost” due to the death of her mother (though no medical assistance was sought and she was still able to work in Australia and complete Diploma level courses). As stated at hearing, the Tribunal may find (and now does find) that this does not explain why she did not study from June 2015.

23. Next, the applicant referred to the health of her son. At hearing, the applicant explained that her son was born in Australia in March 2010. Shortly after his birth, the applicant travelled to India with her son. The son then remained in India in the care of her mother - up till the mother’s death in March 2013 – and then the son commenced to reside with her mother-in-law. Very shortly after the mother’s death, the son ‘had a fever that would not go away’. That ‘fever’ had commenced in the second half of 2013, had not then apparently prevented the applicant from successfully completing Diploma level courses, but had prevented her from studying in 2015. The Tribunal is not satisfied the claimed ‘fever’ prevented the applicant studying in 2015; and the Tribunal now rejects this claim as false.

24. Next, as stated at hearing, the applicant had claimed her husband was not making enough money (the husband was claimed to have previously worked part time at a fruit market in Hurstville and she had worked part time in various Subway sandwich stores). She then said she now worked up to 15 hours per week at Subway (but sometimes she worked less), and her husband had not worked for the last 12 months. Notwithstanding the very little income she claimed to earn, along with some savings, she had supported her and her husband for the past 12 months. No other income source was claimed. As put to the applicant at hearing, based on the evidence before it, the Tribunal may not (and now does not) accept this is plausible.

25. Next, at hearing the applicant requested one last chance to study in Australia. However, as put to her at the hearing, she did not seek any deferment in 2015, she did not contact the Department to explain her circumstances, and she did not return to India to remain with her son (if he was sick as she claimed). The Tribunal is not satisfied that her claim that she did not know what to do in 2015, is a reasonable explanation for breaching the conditions to which her Higher Education Student visa was subject. As put to the applicant at hearing, I may find (and now do find) that she struggled with her Bachelor course as she found it too difficult.

26. Regarding whether there are persons in Australia whose via would or may be cancelled if the applicant’s visa is cancelled, as a consequence of the cancellation of the applicant’s visa, her husband’s visa is also cancelled.

27. Regarding whether Australia has international obligations that would or may be breached as a result of cancelling the applicant’s visa, based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. When discussed what would happen to her and her husband on their return to the Punjab, the applicant’s claim included that it would be difficult to re-establish themselves and work may be difficult to obtain (though the Tribunal has discussed employment above). Be that as it may, after some 8 years in Australia, the Tribunal is satisfied it may require some adjustment if they returned to India. However, given their son resides in India and their family’s reside in India, the Tribunal is not satisfied it would be unreasonable for them to return.

28. After considering all the circumstances of this case as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

29. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.

    Mr S Norman
    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.