SINGH (Migration)

[2019] AATA 2547

SINGH (Migration) [2019] AATA 2547 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jaskaran Singh

CASE NUMBER:  1711783

HOME AFFAIRS REFERENCE(S):     BCC2017/1111266

MEMBERS:Dr Jason Harkess

DATE:9 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa

Statement made on 09 July 2019 at 5:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion –father’s injury – reasonable steps to maintain enrolment – purpose of visa not fulfilled – 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. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 1 June 2017 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 15 April 2014 with an original expiry date of 21 September 2017 providing for approximately 3 years 5 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia. Specifically, the Applicant was to enrol in and successfully complete Diploma of Business Administration and Bacehlor of Business. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled 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 on 9 July 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

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 11 February 2016 to 10 May 2017 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to almost 15 months during which the Applicant was in continuous breach of the visa.

2. 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].

3. The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in any registered course of study from 11 February 2016 to 10 May 2017. The Department of Immigration and Border Protection wrote to the Applicant on 5 May 2017, 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. As the delegate also noted, following receipt of the NOICC the Applicant appears to have re-enrolled in a registered course of study that became effective from 10 May 2017.

4. The Applicant provided a written response to the Department (‘the Applicant’s NOICC response’). In that response, the Applicant appeared to acknowledge the breach of the visa condition by explaining the circumstances giving rise to it. In his evidence before the Tribunal on 9 July 2019, the Applicant also conceded that he had been in breach of his student visa for the period alleged by the delegate.

5. Accordingly, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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’.

2. In his NOICC response, the Applicant stated he and his family experienced personal events that had affected Applicant’s health. He stated that he had successfully completed some courses after he arrived in Australia in 2014. In that regard, he produced a Diploma of Management which he successfully completed at Wentworth Institute in July 2015. However, from there it appears that the Applicant did not progress successfully with his studies. The Applicant referred to hardships suffered by his family in India. On 2 January 2016, the Applicant stated that his father suffered an injury as a result of a terrorist attach. Upon inquiry by the Tribunal, it was revealed that this injury pertained to a muscle in his father’s leg and that, since the injury, he has made a full recovery. The Applicant stated that the incident caused him distress and that he returned to India to visit his family in February 2016. He was there for approximately for one to two months before returning to Australia. However, he did not resume his studies when he returned.

3. The Applicant stated that he attempted to re-enrol in a course upon his return to Australia in April 2016. He produced no satisfactory evidence demonstrating that he made such attempts. Nor could he explain to the Tribunal’s satisfaction why he was unable to re-enrol in a registered course of study. The Applicant stated that he was assaulted and robbed by a group of men in May 2016 and these caused him further anxiety and depression. This is corroborated by a letter he produced from a Dr Khereray, who the Applicant saw after his visa was cancelled in 2018. The Applicant stated that he began hallucinating about his attackers. He said that he only saw Dr Kereray once. The doctor did not prescribe the Applicant any medication for his anxiety or depression and the Applicant did not seek any other professional help.

4. The Applicant also referred to difficult financial circumstances he was having. The Applicant submitted that his breach of his visa, for 15 months, was due to a host of circumstances beyond his control. But it seems, essentially, that his ultimate submission is that a variety of life stressors, emotional and financial, in their aggregative effect had such an impact on his that he was prevented from continuing to study.

5. The Tribunal accepts the Applicant’s evidence that he faced the difficulties that he says he had to deal with. However, many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of financial and emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas.

6. In such circumstances, registered course providers and the Department of Home Affairs have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation. The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort. However, the exercise of a discretion to refrain from cancelling an international student’s enrolment, or to refrain from cancelling their visa, is premised on the visa holder taking positive steps to bring their personal issues to the attention of the relevant authorities and by producing evidence that corroborates their claims. In this case, the Applicant did not do so. For 15 months he remained unenrolled in any registered course of study. He made no attempts to contact the Department of Home Affairs about his personal situation or his course provider to seek a deferral of his studies. The Tribunal does not accept his evidence that he made any meaningful attempt to re-enrol in a registered course of study. It appears he only did so when he came to the realisation that his visa was about to be cancelled.

7. The Tribunal is of the view that the Applicant’s behaviour in this regard fell short of a reasonable student visa holder in this kind of situation. His failure to do anything in this regard resulted in an ongoing breach of his visa. The Tribunal notes that the written evidence of Dr Kereray, provided by the Applicant, falls well short of any formal diagnosis that might suggest the Applicant was suffering from a diagnosable mental health condition during the period in which he was in breach of his student visa. Accordingly, his failure to adhere to his visa conditions cannot be explained on the basis of a chronic mental health condition.

8. The Tribunal also notes that, while the Applicant failed to take positive action in relation to remedy the situation with respect to his continuing study obligations, he found the time to do other things while he remained in Australia. In particular, he stated in evidence that he continued to work and so, it would seem, he continued to reap the benefits of relatively high wages that Australia’s economy yields. He chose not to study and, in doing so, he was not acting in a manner that was consistent with the fundamental purpose for which his visa was granted.

9. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. He appears to have now resumed his studies and is demonstrating some progress. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully further Australian qualifications. He has expended time and financial resources in his time in Australia so far. The Tribunal accepts his evidence that he highly values the opportunity to obtain an Australian qualification. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. It was a student visa which obliged him to prioritise studying in Australia the entire time he was here. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition for a period of 15 months.

10. 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 under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

11. The Tribunal notes that if the visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Migration Act 1958 if 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 3 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.

12. 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. 

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

14. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa.

Dr Jason Harkess
Member