Singh (Migration)

[2019] AATA 5675

Singh (Migration) [2019] AATA 5675 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lovejeet Singh

CASE NUMBER:  1823372

HOME AFFAIRS REFERENCE(S):          BCC2018/1620249

MEMBER:Mark O'Loughlin

DATE:3 December 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 03 December 2019 at 4:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – change of course – issues with alcohol – lack of evidence provided – did not undertake counselling for alcohol – lack of motivation to study – significant breach – 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 9 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa holder had breached condition 8202 and that the grounds for cancelling the visa outweighed the reasons not to cancel it. 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 30 October 2019 to give evidence and present arguments.

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?

   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).

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

7. The Tribunal had regard to information provided to it by the applicant being the delegate’s decision.

8. Tribunal further had regard to information provided by the applicant on the day of hearing comprising a medical certificate of the 12 September 2018 an English test result dated second of February 2017 record of results from Queensland TAFE for a diploma of nursing from July 2013 to January 2014, EAP nursing graduation certificate dated 12 June 2013, statement of attainment from ABC licence training, statement of academic results Institute of technology Australia dated 13 January 2016 and certification of completion of diploma of website development of 13 January 2016, undated statement from the applicant prepared for the hearing, tax invoice from Equals International dated fourth of March 2019 and various bank records for Lovejeet Agro Industries.

9. Since the hearing the applicant has provided further submissions dated 6 November 2019, a Confirmation of Enrolment in a Certificate 3 in Pathology Collection to run from 31 October 2019 to 13 May 2020 and a letter from Drug and Alcohol Services SA to the applicant’s GP dated 11 September 2018.

10. Finally, the Tribunal had regard to PRISMS records relating to the applicant as set out in this decision.

11. The Tribunal did not have regard to any other documents in making its decision.

12. The Tribunal noted that the delegate had considered PRISMS records and found that the applicant had not been enrolled since 19 September 2017.

13. The delegate further noted that the Notice of Intention to Consider Cancellation sent by the Department on 31 July 2018 suggested that the applicant had not been enrolled since 8 November 2017.

14. The delegate, out of caution, used the later date of 8 November 2017 for the purposes of the cancellation decision.

15. The Tribunal obtained a copy of the PRISMS records and noted that they suggest that there was a variation of the applicant’s enrolment in a Bachelor of Science (Biotechnology) on 19 September 2017. That variation was for non-payment of fees and the enrolment was presumably cancelled by the educational institution.

16. However there was a further variation on 8 November 2017, on that occasion for unsatisfactory course progress. The Tribunal finds that the PRISMS records are unclear about whether the applicant was enrolled between 19 September 2017 and 8 November 2017 but they do show that he was not enrolled from 8 November 2017 and did not enrol in any other course before the delegate’s decision on 9 August 2018.

17. The applicant was advised that the PRISMS records constitute information before the Tribunal that suggests that he was not enrolled from 8 November 2017 to the time of the delegate’s decision and that that would be the reason or part of the reason for affirming the decision made by the delegate.

18. It was explained that the applicant’s visa had been cancelled due to a breach of the condition that he be enrolled. The Tribunal also explained that the PRISMS records are relevant because they are evidence that the applicant’s enrolment was cancelled on 8 November 2017.

19. It was explained that if the Tribunal relies on the PRISMS records this would lead the Tribunal to find that he was not enrolled from 8 November 2017, which would be a breach of his visa condition 8202 (a) and would be grounds for cancellation of his visa.

20. The applicant indicated that he understood what was being said to him and why the information was relevant.

21. He said that he believed that he was enrolled at that time but that he wasn’t attending classes. He qualified this by saying that he was dealing with a significant alcohol problem then and that he was not confident of his recollection.

22. The Tribunal explained that this was an important question because if the Tribunal relies on the PRISMS records before it there are grounds for cancellation but otherwise there are not.

23. The Tribunal further explained that it was not inclined to prefer the applicant’s evidence over the PRISMS records, particularly where the applicant conceded that his recollection may not be reliable.

24. The applicant did not seek a postponement but the Tribunal advised that it would hold its decision for one week to enable the applicant to consider whether there is any further information he may wish to submit in relation to this question. The applicant was advised that if he believed there was further relevant documentation but that he could not provide it within a week he should approach the registry and seek such further time as he required.

25. On 6 November 2019 the applicant sent an email to the Tribunal in which he relevantly said “with Flinders university i was unable to gain much information due to their administration was very busy and didn’t get much help and so i believe the information we have till September’s enrolment in flinders is correct would stand with it.”

26. The tribunal is satisfied based on the evidence before it that the applicant was not enrolled in a relevant course after 8 November 2017 and until the date of the delegate’s decision on 9 August 2018 when the student visa was cancelled.

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).

    Consideration of the discretion to cancel the visa

28. 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’

29. The applicant gave evidence that he came to Australia in March 2013 with the intention of studying nursing.

30. He said that he was enrolled to study enrolled nursing and that he believed that course would lead to a course in registered nursing at Queensland University.

31. His enrolled nursing studies were with Brisbane TAFE.

32. He said that after the first semester his mother became ill and he returned to India for a period of slightly less than two months.

33. He returned to Australia in about April 2014 and moved from Brisbane to Adelaide where he had family friends.

34. He said that he had dreamt of becoming a doctor and that he wanted to do nursing first. He said that when he moved to Adelaide his friends were studying IT and he decided to do that instead.

35. He said there was no other reason for the change from nursing to IT.

36. The applicant gave evidence that he did the bachelor of website development in about a year and a half and that he then transferred to a Bachelor of Biotechnology.

37. He said that the Bachelor of Biotechnology was not a nursing course but would qualify him to become a scientist.

38. He said that after a few units in the Bachelor of Biotechnology he started drinking.

39. He said that he was convicted of drink-driving losses licence for six months. He also said that he was sentenced to a term of seven days imprisonment which was suspended on a six-month good behaviour bond.

40. He was not exactly sure when that happened but said that it was a combination of these criminal charges and the receipt of the Notice of Intention to Consider Cancellation of his visa that made him realise that he was drinking too much and that he needed to take control of this.

41. He gave evidence that he sought assistance from his GP and from Drug and Alcohol Services. The Tribunal referred to the report from Dr Khan of 12 September 2018 said that he had seen the applicant and that he understood the applicant was dealing with a problem with alcohol.

42. The applicant also advised that he had been to an interview with Drug and Alcohol Services but had not needed to return because he had stopped drinking.

43. The applicant said that he expected to receive a document from Drug and Alcohol Services but that it had not yet been provided.

44. The applicant was told that he would have the opportunity to provide that certificate if it came in before the Tribunal’s decision is delivered.

45. Under cover of the applicant’s email of 6 November 2019 there was a letter from Drug and Alcohol Services South Australia dated 11 September 2018 and addressed to the plaintiff’s GP. That letter said that the applicant had been drinking half a bottle of Scotch daily for 12 months. An appointment was made for counselling. The nurse who prepared the letter noted that the applicant did not meet the criteria for dependence syndrome but she thought he would gain from some input from their service.

46. The nurse referred to CBT counselling which the Tribunal assumes refers to Cognitive Behaviour Therapy.

47. Tribunal notes that the applicant did not in fact undertake this counselling or any other formal treatment. The tribunal further notes that the applicant stopped drinking without experiencing any withdrawal symptoms.

48. The applicant had no further evidence to suggest that he had had an alcohol problem.

49. The applicant gave evidence that he had been attending temple but said that he had not raised the issue of his alcohol problem with anyone at Temple.

50. The Tribunal observed that the applicant had not provided any corroborative evidence that he had recovered from a significant drinking problem given the limited nature of the medical evidence or from the applicant’s temple where he said he also turned to help him with his drinking problem.

51. The applicant gave evidence that he is drinking was a significant factor in failing to keep up with his study. He said that since he has stopped drinking and that he is focused and determined to finish his study. He gave evidence that he now wants to be a doctor again.

52. The applicant was asked about his ambition to become a doctor. His evidence was slightly confused. He said that he would like to finish nursing then investigate studying medicine in either India or Australia. He acknowledged that this would take a long time.

53. He then said that he would study medicine in India or somewhere else and was less certain that he might investigate studying medicine in Australia.

54. When asked why he was studying nursing if he was confident he could do medicine he said that he believed that it would be preferable to obtain nursing qualifications first and then to become a doctor because it would help him as a doctor to understand the nurses perspective. The Tribunal finds the applicant’s evidence in this regard was unconvincing and is not satisfied that the applicant is committed to studying nursing as a precursor to studying medicine.

55. The applicant said in evidence that the purpose of his travel to stay in Australia was to study and that he dreamt of becoming a doctor.

56. He agreed that he came to Australia in 2013 and was enrolled in a diploma of nursing and that he did about six months of that course. He agreed that if he was able to get credit for the six months that he has done he still has 12 months of that course to do despite nearly 6 years having passed.

57. He said that he wanted to do nursing as part of his medical studies because that was just his dream, his pathway. The Tribunal is not satisfied that it is a reasonable pathway, particularly in view of the fact that it has taken the applicant so long to be in a position to resume his studies become an enrolled nurse.

58. The Tribunal is not satisfied that the applicant has been strongly motivated to pursue studies nor that the studies he is pursuing serve his stated intention of becoming a doctor. The Tribunal does not accord this consideration any weight in favour of the application.

59. The Tribunal finds that the applicant did not comply with his visa conditions from 8 November 2017 until delegate’s decision on 9 August 2018, a period of about nine months which the Tribunal finds is a significant breach.

60. The applicant says he has not been working since the delegate’s decision and that his family have been supporting him financially. He said that his immediate family comprise his parents and his brother and that they operate a farm and agricultural machinery concern in India.

61. He said that if his visa is cancelled he will suffer by being restricted in pursuing his career. He also said that his family would suffer hardship in that they would be upset and further that they will have wasted their money supporting him in his study.

62. On being asked, the applicant was unable to say how much his family had spent on his study.

63. The Tribunal accepts that the applicant’s family will be disappointed but is not satisfied that there is evidence of the other hardship complained of by the applicant.

64. The applicant gave evidence that the ground of cancellation arose due to his drinking habit which in his statement to the tribunal he described as an “addiction”.

65. The Tribunal is not satisfied that he did indeed have an addiction or that his behaviour was not within his own control.

66. There is no evidence of past and present behaviour of the visa holder towards the Department is relevant to the decision to cancel the visa.

67. The visa holder gave evidence that cancellation of his visa would not result in consequential cancellations under section 140. The Tribunal accepts that evidence.

68. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

69. He will need to apply for a bridging visa or a substantive visa if he wishes to remain in Australia.  He will be liable to detention under section 189 and to removal under section 198 if he does not get a visa or leave voluntarily.

70. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be ineligible for the grant of another visa to Australia for 3 years after the cancellation of the Student visa.

71. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

72. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

73. The Tribunal has weighed the considerations set out above together and finds that, although the applicant suggests that the grounds for cancellation arose from matters beyond his control, namely alcoholism, there is insufficient evidence to satisfy the Tribunal that is the case.

74. The Tribunal has weighed the applicant’s significant breach of his visa condition against the hardships that the applicant and his family may suffer and the other considerations set out above.

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

    DECISION

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

    Mark O'Loughlin
    Member