SINGH (Migration)

[2019] AATA 5444

SINGH (Migration) [2019] AATA 5444 (22 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SARNEET SINGH

CASE NUMBER:  1917734

HOME AFFAIRS REFERENCE(S):         BCC2019/1472915

MEMBER:Dominic Triaca

DATE:22 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2019 at 11:14am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – poor academic record – assaulted on two occasions – depression – drinking problem – purpose of stay in Australia – no compelling need – decision under review affirmed

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

CASES
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The applicant is a 22 year old citizen of India. This is an application for review of a decision dated 26 June 2019 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 Applicant’s student visa was granted on 25 January 2017 with an original expiry date of 20 January 2020, providing for 2 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3.The visa had originally been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Diploma leading to a Bachelor of Business at Alpha College in Parramatta. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study.

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 at a hearing convened on 21 November 2019 to give evidence and present arguments.

6.For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.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 Breach Condition 8202?

8.Condition 8202(2)(a) of the Applicant’s visa requires that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 27 May 2018 to 26 June 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 12 months during which the Applicant was in continuous breach of the visa.

9.The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

10.The applicant’s evidence was that he arrived in Australia on 23 February 2017 to study a Diploma leading to a Bachelor of Business at Alpha College. Shortly after his arrival he commenced studying in that course. He reports that he had experienced some problems adjusting to the Australian educational environment and he failed all of his subjects in the first year in Australia. On 27 May 2018 his enrolment was cancelled at the College and from that point, the applicant remained in continuous breach of his visa by not being enrolled in any registered course.

11.The Department wrote to the Applicant on 30 May 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

12.The Applicant did not respond to the NOICC.  

13.At the hearing before the Tribunal, the Applicant stated in evidence that he was in not enrolled in a registered course of study for the period alleged by the delegate.

14.Based on the material available, the Tribunal is therefore satisfied that the Applicant was not enrolled in any registered course of study from 27 May 2018 and was in breach of condition 8202 of the visa.

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 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

Circumstances in which the ground of cancellation arose.

16.The applicant’s evidence was that his academic record in Australia was poor. He says he attended the classes and submitted assignments but was unable to pass any of his subjects during his first year in Australia. He says that he experienced difficulties adjusting to the Australian teaching methods and had difficulty understanding what was expected of him in his course. It appears to have been an unhappy time for him.

17.When asked to address the Tribunal on what, in his view, led to the cancellation of his enrolment in May 2018, the applicant responded that there were multiple reasons, as follows:

(a)He was attacked on two occasions near his home in Marayong, near Blacktown. He reports that his wallet and mobile telephone was stolen and he was frightened by this. He says he did not report these attacks to the Police and he did not seek medical treatment for his injuries;

(b)He suffered from depression. He did not seek medical treatment and he has not undertaken any counselling for any mental health issues;

(c)He fell into bad company and developed a drinking problem. He says that this is the main reason why he was not able to focus on his studies eventually ceased studying. He says he was lost in life.

18.When asked how he spent his time in 2018, he stated that he spent his time with his friends in Blacktown and was drinking alcohol more than he should. He said that he is intending to leave his current house and reside with a friend in another suburb. He says that he is now regularly attending his Sikh Temple and has stopped drinking alcohol.

19.The Tribunal considers that the applicant’s stated reasons, considered either individually or collectively, do not amount to a satisfactory explanation for the applicant’s breach of the student visa over a 12 month period and his failure to taken any meaningful steps to rectify the situation. It considers that the applicant’s apparent drinking issues and socialising with ‘bad company’ appear to be the primary issue leading to the applicant’s failure to apply himself to his studies. The Tribunal accepts that the applicant was assaulted in the manner in which he described. However, in the circumstances in which he did not report the matter to the police or seek medical treatment, the Tribunal considers it unlikely that these incidents prevented the applicant from studying for any length of time.

20.The applicant also provided a medical certificate relating to an incident in which he was hospitalised on 21 February 2019 at Blacktown Hospital Emergency. He reports that he collapsed and taken by ambulance to the hospital.  The report states that the applicant was stressed from work at the time and had been working long hours in physical work. He stated in evidence that the collapse was a result of depression. The certificate does not state that he collapsed due to depression, but the Tribunal accepts he may have been told there was some connection with depression at the time of the emergency and it was not reflected in the medical certificate.

21.The Tribunal accepts that the incident occurred in 2019 and that this would have been concerning to the applicant and his family due considering his age and his apparent good health. The difficulty for this applicant is that the incident occurred in February 2019, some 7 months after the applicant’s enrolment was cancelled. He did not respond to any potential mental health issues by seeking treatment or engaging in counselling. On the Applicant’s evidence, a clinically diagnosable mental health condition was not affecting him. The Tribunal considers his evidence falls well short of supporting a formal diagnosis of depression.

22.The Applicant’s evidence does not support the proposition that he was unable to study in 2018, or return to study, due to underlying mental health issues.

23.The Applicant admitted that he was working during this time at a transport company with his brother. He is entitled to work for 20 hours per week in accordance with the conditions of his student visa. However, it was clear from his evidence that he chose not to prioritise his studies. He was unable to provide any satisfactory explanation as to why he remained in continuous breach of his visa for approximately 12 months but he continued to reap the benefits of Australia’s economy by working.

24.In the end, the Tribunal considers that the applicant’s breach of condition 8202 was caused by a deliberate decision by him not to study, or return to study. He seems to have prioritised working, and socialising, at various times during his time in Australia over studying. The Tribunal does not consider that the breach of the visa conditions occurred due to circumstances beyond the visa holder’s control.

Hardship

25.The Tribunal has taken into account that, if his visa is cancelled, the Applicant’s hopes of obtaining an Australian qualification will not be met. He will be disappointed, his family will be disappointed, and he will suffer some degree of financial loss and inconvenience for having to return to India without the qualification he was hoping for. However, this concern must be tempered with the breach of the most fundamental condition of his visa that continued for a relatively lengthy period.

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or stay in Australia.

26.The Tribunal accepts that the applicant’s purpose of travelling to Australia was to study. This is evidenced in his initial enrolment. However, it is apparent that since early 2018 the applicant’s purpose of being in Australia has not been studying. The applicant states that given the opportunity he will “study hard” and would study automotive courses with a view to returning to India and starting a business in the automotive industry. He did not identify any particular course he would return to. Given that the applicant did not study for a significant period of time when he had the opportunity to do so, the Tribunal has little confidence in the applicant’s willingness to reapply himself to study after a break approaching two years.

27.Compelling and need are words of ordinary meaning, not defined in the PAM3 or the Act. Crennan J (then sitting in the Federal Court) considered the term compelling to mean ‘forceful and therefore convincing’ in Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244.[2]

[2]   at [37] – [39]

28.‘Need’ is a relative concept. It plainly means more than ‘want’ but falls well short of ‘cannot survive without’.[3]

[3] See Lord Neuberger of Abbotsbury in House of Lords decision, R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] WLR 1808 at [54]; Boettcher v Driscol (2014) SASC 86 at 41 per David J

29.Having regard to the ordinary meaning of these terms, the Tribunal does not consider the applicant has demonstrated any compelling need to remain in Australia.

The extent of compliance with visa conditions.

30.For reasons stated above, the applicant was in breach of the conditions of his visa for a period of approximately 12 months and  the Tribunal considers this is a significant breach that weighs against the application.

31.The Tribunal notes that if the visa is cancelled, the Applicant may become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of the breach of visa conditions.

32.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations that would occur by the operation of s 140 of the Act if the Applicant’s visa is cancelled.

33.The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements for him to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

34.Lastly, the Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

35.There do not appear to be any other matters relevant to the application.

36.In all the circumstances, having considered all the evidence before the Tribunal, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

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

D. Triaca
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.