Singh (Migration)

[2020] AATA 2355

Singh (Migration) [2020] AATA 2355 (4 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kanwar Singh

CASE NUMBER:  2005741

DIBP REFERENCE(S):  BCC2019/5338376

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 May 2020 at 3:43 pm (VIC time)

DATE OF WRITTEN RECORD:                9 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 09 June 2020 at 2:42pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – non-commencement and cancellation of enrolment – relationship difficulties and mental health – no approach to education provider, health services or department – not aware of cancellation of enrolment as correspondence sent to wrong email address – attempts to re-enrol and to enrol in other colleges – previous study and visa history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 March 2020 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 May 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 2005741, the applicant’s name is Mr Singh.

4. This is an application for review of a decision dated 17 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 student visa under section 116(1)(b) of the Migration Act 1958.

5. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study.  The issue in the present case is whether that ground for cancellation is made out and if so whether the visa should be cancelled. 

6. The applicant appeared before the Tribunal on 4 May 2020 to give evidence and to present arguments.

7. For the following reasons the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. 

8. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) of schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

9. Condition 8202, as it applies in this case, requires the applicant to be enrolled in a registered course, or in limited cases a full time course of study or training.  In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course of study. 

10. An examination of the delegate’s decision record notes that information before the Department indicated that the applicant did not maintain enrolment in a registered course of study from 30 November 2018 onwards. 

11. A notice of intention to consider cancellation was issued to the applicant on 20 February 2020.

12. By way of written response dated 6 March 2020, the applicant admitted the ground for cancellation and sought to explain in detail the reason for the particular breach.

13. In the applicant’s oral evidence at the hearing, the applicant further acknowledged that he was not enrolled in in a registered course from 30 November 2018 onwards. 

14. On the basis of that evidence the Tribunal is satisfied that the applicant was not enrolled in a registered course from 30 November 2018 onwards and accordingly the Tribunal finds that the applicant has not complied with condition 8202.

15. The applicant provided detailed reasons in his response to the Department dated 6 March 2020 as to the grounds that led to the breach of his visa condition in this case. 

16. The applicant stated in quite some detail that he could not attend his particular college and cope with study due to constraints on his mental health at that time, caused by the stress of a relationship and/or friendship that he was in at the time with a girl from his school, who was in India.  He stated that he was unable to contact her due to the disapproval of both his and her parents of the relationship.  The disapproval arose as a result of the fact that the respective families are from different religions and cultural backgrounds.  The applicant stated that the young girl’s parents threatened him and his family if he was ever to return to India and these matters caused the applicant significant distress and were the reason why he could not concentrate on his studies at the relevant time.

17. The applicant further stated in his response that he was not aware that his education provider cancelled his enrolment at the time because the correspondence was sent to the wrong email address and that upon taking steps to ask the education provider to re-issue the confirmation enrolment, the education provider declined to do so.  The applicant further stated in his response that he tried to enrol in various colleges and obtain COEs but he was refused enrolment.

18. The applicant stated further in his response that he obtained an offer of a letter of enrolment for a diploma for leadership and management from Strathfield College dated 2 March 2010, however, as at the date of this hearing, no actual enrolment was ever obtained for that course.

19. At the hearing the applicant gave detailed evidence consistent with the evidence that was set out in his response to the notice of intention to consider cancellation. 

20. The applicant candidly informed the Tribunal that he was in a very dark state as a result of the fall-out of a relationship he had with a girl from a different religious and cultural background from his own.  That is to say, he informed the Tribunal that threats were made against the life of himself and his family by his girlfriend’s father at the time which caused tremendous distress.  The applicant described how he descended into a habit of drinking and found it very difficult to open up or speak with anyone about the difficulties he was having as a result of the relationship with the young lady in question.

21. The applicant gave evidence that, from a cultural perspective, he was not brought up in the context of being encouraged to talk about the difficulties that I have just described, he was raised to try and deal with these types of matters on his own, as many young men are he contended.  He further stated that in hindsight he wished he had sought legal and/or emotional advice at the relevant time, but he found it very difficult to open up and talk about these matters.  He did not want to burden his parents with the reality of the difficulties he was enduring at the time and he gave candid evidence that the reason he did not see a doctor at the time he was struggling mentally, was because what he was going through was not a physical problem that would cause him to require attendance upon a doctor.

22. The applicant gave further evidence that he did not seek a deferral of his course at the relevant time simply because he was not in the right headspace to do so.  He candidly acknowledged that this would have been the appropriate course to take.  The applicant acknowledged that he did not seek to contact the Department at the time to clarify the position with his visa on account the same reasons that I have just stated applied to the reasons why he did not seek to defer his course, and that is, simply that he was going through an incredibly difficult and dark time at the time of the cancellation of his course, that he struggled immensely to cope and these are the reasons why he did not take the steps to defer his course or contact the Department about his visa status.

23. The Tribunal notes that there is no medical evidence before it and indeed the applicant candidly acknowledged that he did not see a mental health practitioner in relation to the clear difficulties he was experiencing.  That is not to say that the Tribunal does not acknowledge the problems described by the applicant. 

24. However, there is no medical evidence, or objectively reasonable lay evidence, before the Tribunal to suggest that the applicant’s mental health was impeded to such an extent that he could not seek to attend upon his education provider for the purpose of seeking a deferral of his studies, or contact the Department of Home Affairs to clarify his visa status or to change his visa status in circumstances where he was not turning up to class and study.

25. As a result of all those matters the Tribunal is not satisfied that the reason for the breach of the visa conditions was due to a matter that was reasonably beyond the control of the applicant, and I give the circumstances in which the grounds of cancellation arose some significant weight in favour of cancelling the visa.

26. As to the applicant’s purpose to stay in Australia, it is clear that the applicant arrived in Australia on 17 February 2015 as the holder of student Subclass 573 visa which was granted for the purpose of completing a higher education course of study in Australia, specifically a Bachelor of Business.  That particular enrolment was cancelled on 28 April 2016 on account of the applicant notifying his education provider of the cessation of his studies.

27. The applicant has subsequently varied his study path by holding a COE for a Diploma of Business Management and a Bachelor of Professional Accounting, which was subsequently cancelled.  The applicant gave candid evidence at the hearing that he undertook these business studies because that is the family background and the background of his father and so on account of his father’s expectation and encouragement he enrolled in accounting and business-related subjects.  But he subsequently found that hospitality and cookery were more to his liking and he enrolled in a Certificate III and Certificate IV in commercial cookery with a view to then enrolling in the diploma of hospitality management and bachelor of hospitality tourism and management. 

28. By all accounts the applicant has successfully completed the Certificates III and IV in commercial cookery.  And the Tribunal makes no adverse finding against the applicant on account of the fact that he has, as a young man, decided to change his study path from a business and accounting study path to a hospitality and cookery study path.

29. However, it is clear that the applicant’s purpose for study in Australia ended on 30 November 2018 when he ceased to be enrolled in his bachelor of tourism and hospitality management.  This course was cancelled by the Academy Australasia Polytechnic education provider on 30 November 2018 due to non-commencement of studies.  I have already set out above the details and the circumstances which led to the enrolment being cancelled.

30. When the applicant’s enrolment was cancelled, the applicant continued to reside in Australia since that time without studying.  I consider that the purpose for which the visa was granted is no longer the purpose for which the applicant remained in Australia from that time.

31. The Tribunal acknowledges that the applicant took steps upon receipt of the Notice of Intention to Consider Cancellation to rectify his status and by attempting to obtain a diploma of leadership and management enrolment at Strathfield College. However, notwithstanding that he received an offer to take up that course, he ultimately did not end up enrolling on account of this proceeding.

32. On the basis of the fact that the applicant’s course for which his visa was granted was cancelled on 30 November 2018 and the fact that the applicant has not been enrolled since that date, I no longer consider the applicant’s purpose for being in Australia to be in line with the particular purpose for which his visa was granted and I give this some weight in favour of the visa being cancelled.

33. As to the extent of compliance with visa conditions, it is clear that the applicant has not complied with condition 8202(2)(a) and the Tribunal takes into account all the applicant’s reasons as set out in his response to the Notice of Intention to Consider Cancellation and in his evidence at the hearing today in relation to the fact that the applicant contends that on account of his mental health at that relevant time due to the incredibly stressful situation that he was enduring with respect to the girl that he was in a relationship with, he simply was not in the right head space to deal with his studies at the relevant time.

34. The Tribunal accepts the applicant’s evidence in relation to the difficulties he has described that he endured at the time, however, as I have set out above, the Tribunal is unable to place significant weight on the applicant’s claims, particularly in the absence of medical evidence supporting a contention that the applicant’s mental state was affected to such a degree that he could not even take steps to defer his enrolment at the relevant time.

35. It is clear that the applicant has not maintained enrolment in a full time registered course for a significant period of time, that is to say over a year and a half.  The extent of the non-compliance with condition 8202 in the circumstances is significant.

36. It is to the applicant’s credit that at the hearing he acknowledged that the appropriate course would have been to address the situation with the education provider and to seek a deferral of his course on compassionate or compelling grounds.  The applicant candidly acknowledged that in hindsight it would have been preferable to take different steps and the Tribunal takes the applicant’s candid evidence into account in respect of these matters.

37. However, in view of the fact that I have found that the reason for the visa breach is not, in all the circumstances, due to a reason beyond the applicant’s control, I give the extent of noncompliance with these conditions some weight in favour of the visa being cancelled.

38. As to a degree of hardship that may be caused to the applicant and his family as a result of the cancellation of the visa, the Tribunal acknowledges that the applicant has set out articulately in his response to the Notice of Intention to Consider Cancellation that he wishes and intends to continue studying in Australia to gain qualifications for the purpose of making his mother and father proud.  The applicant has been in Australia since 17 February 2015 as a temporary visa holder and the applicant acknowledged in the hearing that there is no-one in Australia with him who is reliant upon his visa.

39. The Tribunal acknowledges that the applicant would suffer some emotional and financial hardship as a result of the cancellation of his visa and the Tribunal acknowledges that the applicant has suffered emotional and psychological hardship as a result of the matters that have led to the breach of the particular visa condition in this case.

40. However, in these particular circumstances, on account of the fact that no family members are affected by the particular cancellation of the visa, I give the hardship that will be suffered by the applicant as a result of the cancellation of the visa some minor weight in favour of not cancelling the visa.

41. As to whether or not there are any consequential cancellations in section 140 of the Act, the applicant confirmed in his evidence at the hearing that there are no persons in Australia with him whose visas would be cancelled as a result of the cancellation of his visa and I therefore give this consideration no weight for or against cancelling the visa.

42. As to any particular legal consequences that may flow as a result of the cancellation of the visa, the Tribunal notes that if the visa were to be cancelled the applicant would be potentially liable to be detained and removed from the country if he did not depart voluntarily.  The Tribunal notes that the applicant would be subject to section 48 of the Act, which means he may have limited options to apply for further visas in Australia and be required to return to his country of origin.  The Tribunal further notes that the applicant may be affected by public interest criterion 4013 in these particular circumstances, however these are mandatory intended consequences of the legislation, and in view of the fact that I have found that the circumstances leading to the breach of the visa conditions were not due to matters beyond the control of the applicant, I do not find these mandatory consequences to be particularly unfair in this particular case and I therefore do not give this factor any weight against cancelling the visa.

43. As to the applicant’s past and present behaviour towards the Department, by all accounts the evidence before the Tribunal and on the Department file indicate that the applicant has conducted himself in good faith in his dealings with the Department and I give this good conduct some weight in favour of the visa not being cancelled.

44. This case does not engage Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration and I therefore give this consideration no weight in this particular case for or against cancelling the visa.

45. It is clear that the breach, as set out above, does not reveal any bad faith on the part of the applicant, however it was occasioned by matters that were reasonably within his control.  It is also clear that the considerations I have arrived at on examining all the evidence before me lean towards the visa being cancelled and I so find. 

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

47. The Tribunal affirms the decision of the delegate to cancel the applicant’s visa.  This is an oral decision made at 3.43 pm on 4 May 2020.  This now concludes the hearing.

    DECISION

48. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member