Singh (Migration)

Singh (Migration) [2019] AATA 4073 (6 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jashanpreet Singh
CASE NUMBER:  1903045
HOME AFFAIRS REFERENCE(S):           BCC2018/5016388
MEMBER:Mark Bishop
DATE:6 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 06 September 2019 at 10:13am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to attend scheduled hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of remaining in Australia – mental health issues – vicissitudes of life – significant period of non-enrolment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 February 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).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant did not appear before the Tribunal on 6 September 2019 to give evidence and present arguments.
The applicant provided a copy of the decision record to the Tribunal.
On 12 August 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 6 September 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
No response to the hearing invitation was received. However the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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)
·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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The delegate made a finding the applicant had not complied with paragraph 8202(2)(a) of condition 8202. The delegate made a further finding that on the basis of information in PRISMS the visa holder was not enrolled in a course of study from 7 March 2018 until 22 November 2018. As the visa holder was not enrolled in a full-time registered course of study, the visa holder had not complied with the requirements of condition 8202(2)(a). Based on this information, the delegate was satisfied there was a ground for cancellation under section 116(1)(b) of the
The applicant was notified of the intention to consider cancellation (NOICC) on 8 November 2018 and the notice invited the applicant to respond in writing. The applicant did respond. The applicant did not state whether he agreed that there were grounds for cancellation.
Having regard to the findings of the delegate as outlined in paragraph 10 above , the Tribunal finds that the applicant ceased to be enrolled in a registered course on 7 March 2018. The Tribunal finds that he breached condition 8202(2)(a) of his visa.
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).
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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’
Consideration of discretion
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’.
On 12 August 2019 the Tribunal wrote to the applicant and invited him to attend a hearing on 6 September 2019. In that invitation requested that ”any additional documents or information that you may wish to rely on during the hearing be provided to us by 30 August 2019”. The applicant did not respond to the invitation. The applicant did not provide any additional documents or information to the Tribunal.
As outlined in paragraph 11 above the applicant did respond to the NOICC. The delegate summarised his response as follows:
·He had been going to college and was not aware his enrolment was cancelled; he should have been notified as such;
·He was enrolled in Bachelors course; however he changed to another provider and was late to enrol in a bachelors or master course with the new provider;
·He had been visiting a psychologist;
·He accepts that he has mucked up his life and genuinely regrets it now and forever;
·He had a life changing opportunity to study in Australia and have a bright future, however, his parents situation back home created distractions for him;
·He suffered a break up in his relationship;
·He has lost a lot in his life at his young age and if he loses his student visa he would be “left for nowhere”;
·He would not be able to go back to India without finishing his automotive studies;
·He will be required to return to India to be with his mom after his father leaves her.
A supporting letter was provided by Psychologist Bill Efremidis from Positive Solutions Psychological Services as follows:
·Mr Singh came to the office on 21 November 2018 and provided an account of his personal circumstances during 2018.
·Mr Singh has been unable to attend and complete the course required of him due to events in his family and personal life.
·Mr Singh stated his parents’ marital status is unstable, with friction and instances of domestic violence perpetrated by his father.
·Mr Singh experiences a sense of obligation as the only son to ensure his parents’ welfare. Mr Singh has a close emotional bond with his mother.
·Mr Singh experiences sadness, fear, worry and apprehension regarding his parents’ marital relationship, particularly his mother’s vulnerable position
·Mr Singh formed a personal relationship with a female in mid-2017 which ended in June 2018. This relationship is stated to be the most psychologically significant he has experienced. Mr Singh found it difficult emotionally to accept the end of the relationship. It presented a significant emotional loss for himself.
·Mr Singh became withdrawn psychologically, spending his time at home, alone Mr Singh received the NOICC on 8 November 2018 and this alarmed him
·Mr Singh continues to strive to return and complete his academic studies in Australia, in order to secure a career as a Mechanic within the Automotive Industry.
·Mr Singh’s psychological health is characterised by depressed mood, negative rumination, insomnia, low sense of self-worth and self-confidence, loss of motivation, loss of meaning and purpose, sense of despair and hopelessness and apprehension regarding his academic future in Australia.
·Mr Singh has thoughts of self-harm during periods of heightened emotional distress and had increased reliance on alcohol to regulate his emotions particularly in the two or three months prior to 22 November 2018. Mr Singh stated he consulted a general Practitioner at Coburg Family Medical Centre in August 2018, due to his mental health. Mr Singh has not been prescribed psychotropic medication.
·Mr Singh is experiencing an Adjustment Disorder, with Mixed Anxiety and Depressed Mood as a ‘severe to extremely severe’ level of intensity, together with Alcohol Use Disorder. This is in response to Mr Singh experiencing significant loss in his personal life, concerns regarding his mother’s welfare and his parent’s marital relationship, and uncertainty regarding his academic future in Australia.
·Of concern are Mr Singh’s presence of hopelessness and a sense of resignation, accompanied by thoughts of self-harm, and exacerbated by excessive consumption of alcohol.
·Mr Singh expressed the importance of completing his academic studies in Australia in order to secure his professional future within the automotive field.
·Mr Singh has stated a willingness to attend psychological counselling as part of his intent to return to his academic studies.
The applicant provided the following supporting documentation
·Letter from Positive Solutions Psychological Services, for patient Mr Jashanpreet SINGH, dated 21 November 2018.
·Overseas Student Confirmation-of-Enrolment (COE) for Diploma of Automotive Technology, issued by Kontea Pty Ltd on 22 November 2018
·A Confirmation of Enrolment created by Acknowledge Education Pty Ltd on 18 January 2019 for the visa holder to study a Bachelor of Business.
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
There is a limited amount of information before the Tribunal.
As outlined above the applicant provided a letter from Positive Solutions that outlined he came to Australia in September 2014 and since that time has completed two VET courses at Certificate level in Automotive Mechanical Diagnosis.
In his response to the NOICC the applicant stated when he received the letter from the Department on 8 November 2018 advising him of the “intent to cancel his International student visa” this “alarmed him”. The Tribunal has considered this response. The Tribunal is inclined to the view that if the NOICC had not been sent it is likely the visa holder would not have taken steps to address the non-compliance with condition 8202 imposed on his Student visa.
In response to the NOICC the applicant advised he wished to complete studies in Australia in order to secure a career as a mechanic within the automotive industry
The applicant enrolled in a Diploma of Automotive Technology subsequent to receipt of the NOICC shortly after 8 November 2018. The Tribunal is inclined to the view these actions indicate the applicant took steps to comply with his visa condition as he was motivated more by having his visa cancelled and the associated effect on his ability to remain in Australia rather than any genuine intention to study at that point.
The Tribunal has considered the information summarised at paragraph 20 above. Despite a written request from the Tribunal dated 12 August 2019 the applicant has not provided any further information that allows the Tribunal to review the matters identified in paragraph 20 above. The Tribunal is not aware if the applicant has pursued psychological counselling as suggested. The Tribunal is not aware if the applicant has completed his studies in Australia. The applicant has not provided any further or additional information to the Tribunal that suggests he has a compelling need to remain in Australia. The Tribunal notes the applicant in the latter part of calendar year 2018 sought professional assistance. He indicated a desire to study in the future. The Tribunal is aware the applicant remained in Australia for a lengthy period when his purpose was no longer study. The Tribunal gives this consideration a little weight in the applicant’s favour.
The extent of compliance with visa conditions
There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As provided in supporting information on the Departmental and Tribunal files the applicant expressed the importance of completing his academic studies in Australia in order to secure his professional future in the automotive field. The applicant also stated that he has lost everything in his life and that if he were to lose his Student visa too then he “would literally be left for nowhere”. The Tribunal is inclined to the view the applicant may experience some emotional and possible financial hardship as a result of the cancellation of his visa.
The applicant stated he will “not be able to go back to India without at least finishing my automotive studies”. The tribunal notes that the applicant provided a copy of a Confirmation of Enrolment (COE) in a Diploma of Automotive Technology created 22 November 2018. This COE showed an end course date of 27 May 2019. As stated above the Tribunal is not aware if the applicant completed this course of study. The applicant has not provided a further COE for study in a Diploma of Technology. If the Tribunal affirms the decision of the delegate he may not be able to commence or complete these studies if enrolled or other studies if he has a current COE.
Supporting documents state that the visa holder has described his present psychological health status in negative terms. The documentation claims, among other things, the vapplicant has thoughts of self-harm and an increased reliance on alcohol to regulate his emotions. The Tribunal accepts that if it were to cancel the applicant’s visa this may negatively impact his psychological state of mind which is claimed to already be in a fragile state. This may result in the visa holder requiring further assistance from a medical professional to help treat his symptoms in the future.
The cancellation of the visa may result in further financial hardship as the visa holder would have no work rights and therefore no legal ability to work in Australia and gain an income.
The Tribunal gives a little weight to this consideration in the visa holder’s favour.
Circumstances in which ground of cancellation arose
The ground for cancellation arose when the applicant failed to maintain enrolment in a registered course of study from 7 March 2018 until 22 November 2018 which led to him being non-compliant with visa condition 8202, specifically 8202(2)(a).
The delegate made a finding that the applicant responded to the NOICC via email dated 15 November 2018. He stated the circumstances that led to him not being enrolled in a registered course of study were due to being unaware his COE had been cancelled. The applicant stated he had been going to the college and was never informed of the cancellation of his COE.
In his email on 15 November 2018, the delegate stated the applicant requested an extension of time to respond to the NOICC. He advised that he had been visiting a psychologist and would be obtaining a medical certificate to submit when the psychologist returned from holidays on 18 November 2018.
The visa holder provided a psychologist report dated 22 November 2018 summarised at paragraph 20 above. In the opening paragraph the psychologist, Mr Efremidis, stated “Mr Singh presented to the office of Positive Solutions- Psychological Services on 21 November 2018 and provided an account of his personal circumstances during 2018”. Furthermore, Mr Efremidis sums up his report by stating “Mr Singh has been encouraged to attend psychological counselling as a part of his intent to return to his academic studies”. The delegate concluded this indicated the applicant had not been seeking the services of the psychologist prior to being notified of an intention to consider cancellation of his visa as claimed by the visa holder. The Tribunal reaches the same conclusion as the delegate.
The diagnosis from the psychologist is a retrospective one and the information contained in the supporting letter is an account of events as provided by the applicant to the psychologist and not based on the psychologist’s observations after having been treating the applicant for the specified period of time that the applicant claimed to be experiencing difficulties in his life.
The supporting documentation provided states the applicant has been unable to complete his courses as intended due to events in his family and personal life. These events have left the applicant experiencing an Adjustment Disorder, with Mixed Anxiety and Depressed Mood, at a “severe to extremely severe’ level of intensity, together with Alcohol Use Disorder”.
The supporting documentation provided by the applicant states the applicant’s parents’ marital relationship is “unstable, with frequent friction and instances of domestic violence perpetrated by his father”. The applicant claimed this escalated during 2018. The applicant stated he has a close bond with his mother, and experiences sadness, fear, worry and apprehension regarding the marital status of his parents.
The Tribunal has considered this explanation. Many international students have family members in their home country that may experience difficulties and require support from the student living in Australia. It is a natural consequence of the decision to study in Australia that a visa holder would not necessarily be in a position to offer direct physical comfort to members of their family if such an occasion were to arise.
The applicant stated he experiences a sense of obligation to ensure his parents’ welfare as they live alone in India. The Tribunal is of the view that the applicant could have returned to his home country if he was concerned for his parents’ relationship and his mother’s welfare. The delegate made a finding the applicant did not avail himself of this option. As the applicant did not provide a written submission to the Tribunal and did not appear to give evidence on the scheduled date of hearing the Tribunal is not aware of the level of support the applicant provides to his family and the manner in which he ensures their welfare from Australia is not known.

Supporting documentation provided by the applicant and outlined in the psychologist’s report also states the visa holder formed a personal relationship with a person in mid-2017. This relationship is stated to be the most psychologically significant the applicant has experienced in his personal life. The applicant stated this relationship ended in June 2018 due to ongoing friction. The applicant claimed he has found it difficult emotionally to accept the end of this relationship. The supporting documentation states as a result of events in his family and personal life, the applicant has withdrawn psychologically and spends his time alone, particularly since June 2018.
The applicant advised the psychologist that he consulted a General Practitioner at Coburg Family Medical Centre in August 2018 due to concerns regarding the deterioration experienced in his mental health. The applicant did not provide any evidence to support this claim.
There is no evidence before the Tribunal to indicate that the applicant consulted with a mental health professional prior to consulting with Mr Efrimidis on 21 November 2018. Furthermore, there is no evidence before the Tribunal to indicate that the applicant has received treatment or medication for a mental health condition.
The applicant has no contemporaneous evidence of his attempts at contacting his education provider to seek future enrolment, or any attempt by him to contact the Department and advise of his situation. The primary purpose of the Student visa is for the visa holder to undertake a course of study. Even if he were in a distressed state it is a mandatory requirement for Student visa holders who are not studying to take some steps to remedy the situation. There is no evidence before the Tribunal the applicant sought independent counselling or support during this time.
The onus rests solely on the Student visa holder to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change. The delegate made a finding at no time did the applicant contact the Department to advise of his circumstances or seek clarification on these matters. The applicant did not challenge this finding.
The delegate summarised a phone conversation with the applicant on 18 December 2018 in which the applicant stated he had been enrolled to study a Bachelors course, however, he transferred to another provider and was late to enrol in another Bachelors course. This advice contradicts information provided by the applicant in response to the NOICC explaining that the grounds for cancellation arose as a result of his concern for his parents, his relationship breakdown and his poor mental health.
The Tribunal acknowledges that the applicant sought professional help in November 2018 for mental health issues. However the Tribunal is of the view that the timing of his decision to seek professional help following receipt of the NOICC is significant and casts doubt upon his motives. There is no conclusive evidence before the Tribunal to reach a conclusion that the grounds for cancellation arose as a result of extenuating circumstances beyond the applicant’s control.
The Tribunal gives no weight to this consideration in the visa holder’s favour.
Past and present behaviour of the visa holder towards the department
Having reviewed all of the relevant information the Tribunal is of the view the applicant provided a response to the NOICC. However the applicant provided conflicting information regarding the circumstances in which grounds for cancellation arose.
In addition the delegate made a finding the applicant provided inconsistent information in regards to his claim to have consulted with a psychologist prior to 21 November 2018. The applicant did not challenge this finding.
The Tribunal gives no weight to this consideration in the visa holder’s favour.
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 if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.
Whether any international obligations would be breached as a result of the cancellation
There is nothing before the Tribunal to indicate there are international obligations to consider.
Any other relevant matters
The Tribunal has not been made aware of any other revenant matters.
The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-500 visa and that a breach of more than six months is significant in the context of a student’s study period
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Student (temporary) (class TU) Student (subclass 500) visa
Mark Bishop
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.

[2019] AATA 4073

6 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies