Singh (Migration)

[2019] AATA 2362

Singh (Migration) [2019] AATA 2362 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Wazir SINGH

CASE NUMBER:  1822040

HOME AFFAIRS REFERENCE(S):     BCC2017/227251

MEMBERS:Dr Jason Harkess

DATE:25 June 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 25 June 2019 at 2:36pm

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 – vicissitudes of life – deferral of studies – failure to take reasonable steps – serious 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. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 27 July 2018 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 22 March 2016 with an original expiry date of 30 August 2018 providing for more than 2 years 3 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. I

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, those courses included 2 general English courses followed by a Master of Professional Accounting. The Master’s course was to commence on 20 February 2017 and finish on 31 December 2018.

4. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required her to continue to be enrolled in a registered course of study, namely the Master of Professional Accounting. 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 7 June 2019 to give evidence and present arguments. He was assisted by his migration agent, Mr Ajay Bansal.

6. The Tribunal was assisted by an interpreter in the Punjabi and English Languages.

APPLICABLE CRITERIA

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 16 May 2017 to 27 July 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 14 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.

   [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 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.

4. The PRISMS report obtained by the delegate indicated that the Applicant’s course provider, the Holmesglen Institute, had terminated his enrolment in the Master of Professional Accounting course on 16 May 2017 due to the Applicant’s the non-commencement of studies.

5. The Department of Home Affairs wrote to the Applicant on 19 March 2018, 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. It specified 16 May 2017 as the date on which the Applicant’s enrolment had apparently ceased. The Department’s NOICC also drew attention to the fact that the PRISM’s database appeared to show that he had not been enrolled in any registered course of study since that time. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

6. The Applicant provided a written response to the Department on 27 March 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant attempted to set out his history since coming to Australia. However, it is clear in that response that he seemed to accept that he had indeed ceased being enrolled in the Master’s course. In his evidence before the Tribunal on 7 June 2019, the Applicant conceded that he had been in breach of his student visa for the period alleged by the delegate.

7. 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 that he arrived in Australia in March 2016, having been granted the Subclass 573 visa, to study for a Master of Professional Accounting at the Holmseglen Institute (‘the Masters course’). He referred to the fact that he was first obliged to undertake a bridging English course at Holmesglen. However, he stated that he failed this course because he did not understand the Australian Education system. He enrolled in this course for a second time and, because he was nervous, he did not attend. The Applicant confirmed in his oral evidence before the Tribunal that he did not attend any of the classes the second time he enrolled in the English course and he did not successfully complete it. Because it was a requirement that he demonstrate the attainment of a satisfactory level of English language proficiency before he commenced the Masters course, this effectively made him ineligible to commence the Masters course. He stopped studying altogether.

3. The Applicant stated that on 19 January 2017 he returned to India to visit his paternal aunt who had been diagnosed with cancer. He returned to Australia on 19 February 2017. However, as he stated, he was not able to concentrate on his studies because he was constantly thinking about his aunt. The Applicant stated, and the Tribunal accepts, that he was very close to his aunt and that they had a strong relationship. According to the Applicant, his aunt died in October 2017. The Applicant found her suffering and her death very difficult to deal with. He stated that he was not able to return to India following her death because his family would not allow him to do so. In evidence given before the Tribunal, the Applicant explained that there appear to have been some issues between various groups of people in his village that involved his family. The evidence in this regard was somewhat vague, but it seems that the Applicant had some genuine fear of returning to India because of the possibility of false complaints being made against him if he were to return.

4. The Applicant also referred to the death of his maternal grandfather that occurred in October 2017. He was 76 at the time of his death. The Applicant stated that he was again not able to attend his grandfather’s funeral due to issues at home. The Applicant then referred to his cousin, Manmohanpreet Singh, having been murdered in October 2017. The Applicant was devastated and felt alone in Australia as a result of this untimely death. The sequence of events, according to the Applicant, resulted in a significant degree of shock and distress for him. At the time he submitted his NOICC response to the Department, he indicated that he had only just begun putting his ‘life on track’. He stated that the three deaths in a row in his extended family in 2017 left him devastated.

5. At the hearing before the Tribunal, the Applicant recounted this history and emphasised that in 2017 he had lost three of the most important people in his life in a two-month period. He also referred to the degree of hardship that would be caused if his visa is cancelled. He stated that he and his family will suffer stress because there are high expectations of him achieving an Australian qualification. He said that they have invested a great deal of money in his education in Australia. The Tribunal accepts this evidence.

6. The Applicant also stated that he would find it difficult to be admitted to an education provider back in India, were he to return, because he has not yet attained a qualification here. In the longer term, he also pointed out that he would find it difficult to secure well paid employment back in India without having obtained an Australian qualification. The Tribunal also accepts this will be a consequential hardship he would face.

7. The main difficulty that the Applicant faces in advancing his case in the present review is providing a satisfactory explanation for his cessation of enrolment in the Masters course up until the middle of October 2017, when the tragic deaths of three of his relatives all seemed to coincide. Prior to October 2017, the only family tragedy which the Applicant was having to grapple with emotionally was the sickness of his aunt. To be clear, the Tribunal accepts the evidence of the Applicant in relation to his aunt. It also accepts that it would have been a difficult time for him. However, sickness and death of family members are unkind life stressors that everyone must deal with at some point. Non-Australian citizens on student visas in Australia are no exception. 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 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. Many such students are young adults, just like the Applicant.

8. In such circumstances, registered course providers and Department 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. He neither contacted staff at his course provider, nor staff at the Department, to inform them of the personal difficulties he was having. As the delegate noted in her decision record:

   The legislation (ESOS Act and National Code) relating to education in Australia for international students strongly supports students who require deferral from their studies due to compelling and compassionate circumstance. There is no evidence that the visa holder availed himself to this option or sought assistance from his education provider in relation this issue. It is reasonable to expect that the visa holder could also have sought advice or assistance from student counselling services at the University about his inability to study to the deaths of his family members. However there is no evidence that the visa holder sought such assistance. Instead, the visa holder appears to have made a conscious decision not to return to his home country and remained in Australia in continued non-compliance with condition 8202.

9. In his evidence given at the Tribunal, the Applicant stated that he did not seek any assistance by way of advice or counselling from his course provider because he believes it is a ‘sign of weakness’. He said he feared that other people might find out his difficult situation and that he might be deported if her were to formally change his study plans. He said he believed talking about his problems would not ‘do any good’. The attitude of the Applicant in this regard is a sad reflection on the social stigma that is too often associated with mental health problems in society.

10. The Applicant’s failure to take steps to seek help, to alert his course provider of his problems, or to alert the Department as to his personal situation has not assisted his case. It is not what a reasonable student visa holder would have done 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, 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 evidence, he stated that he would assist his cousin with the care of his young children, he would work for up to 20 hours a week, and he would take the time to visit the local Sikh temple.

11. It is difficult for the Tribunal to fathom why he chose not to prioritise compliance with his visa conditions by recommencing his studies. The Applicant stated that he was looking for alternative education providers, but nothing crystallised by way of an enrolment. There is no psychological evidence, beyond that the evidence of the Applicant himself, that provides an adequate account of his mental state at the time. The Tribunal is therefore unable to form any view as to whether the Applicant was suffering any clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors, and that this may have been a cause of him effectively doing nothing to get his studies back on track.

12. In these circumstances, the Tribunal is not satisfied with his explanation has to why he remained in continuous breach of his student visa for the period 16 May to October 2017. It was a period of well over 4 months in which the Applicant apparent chose to deliberate to remain in continuous breach of his visa. At the conclusion of the hearing on 7 June 2019, the Applicant requested an adjournment for the purposes of obtaining some psychological evidence that might possibly demonstrate an underlying diagnosable condition that was operating on the Applicant during that critical period. The Tribunal granted the Applicant 2 weeks for him to obtain a psychological report for that purpose. The Tribunal directed the Applicant’s attention to the need for the Tribunal to understand whether, and to what extent, a diagnosable mental health condition may have been impacting on the Applicant during the period of May to October 2017. The Tribunal made it clear to the Applicant that this is what any psychological report needed to address.

13. The Tribunal received a psychological report from the Applicant on 21 June 2019. The report is in the form of a letter dated 15 June 2019. The author of that report is Waltraud Tubbesing, a psychologist based in Bundoora. Its contents are reproduced in full below (grammatical and expressional errors included):

    I am a Psychologist and seeking Mr Wazir Singh at present at the request of his GP. He suffers from anxiety and depression due to family issues back home and his visa issues. He came in 2017 to study for an accountant degree and at the time of his aunt’s illness was doing his English part of the studies. He was very young and never before away from his family and the sudden illness of his aunt to whom is very close and the reaction of his parents to the health concern affected him badly. He went for a visit and hoped that he could cope after seeing her and being able to understand the health issue.

    He thought at the time of his return that he would be fine to take up his studies again. The aunt did not die until October with the added issues of the other death in his family in October 2017 after his return from India. Those events made it impossible for him to focus and he had nos support at the time and was never asked if he was fine by the organisation he studied with at the time.

    He still tried to get his studies back on track but was not able to cope. He has now changes his studies to the cookery course and his mental alertness for it is stronger. His parents have made the effort to get him more support with visits and helped him to settle back into focus for the studies. He is older and has adjusted to living in Australia but still is committed to study. He wants to create a future for him and his family back home after his studies are finished. He has more knowledge to ask for help if he has some issues and he will have sessions to help him to have stronger coping skills.

14. The Tribunal notes that Mr Tubbesing’s evaluation of the Applicant adds very little to what has already been articulated by the Applicant and his representative at the hearing that took place on 7 June 2019. In particular, while Mr Tubbesing refers to Mr Singh as currently suffering from anxiety and depression, he does not opine a view as to whether the Applicant was suffering from a diagnosable mental health condition of a similar nature between 16 May 2017 and October 2017. Indeed, the exact state of the Applicant’s mental well-being during that critical period in the Applicant’s life is not even clearly addressed by Mr Tubbesing’s report. The report does not in any way suggest that the decision-making processes of the Applicant during that time may have, in some way, been impaired to such an extent that the Applicant was led to breaching his visa on a continuous basis. The report of Mr Tubbesing therefore does not provide any satisfactory explanation for the Applicant’s breach of his visa conditions during this time.

15. The Tribunal has given consideration to the Applicant’s expressed desired to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. However, that desire must be tempered with the extent of his non-compliance with the conditions of the visa. His student visa obliged him to prioritise studying in Australia the entire time he was here. He chose not to do so. In the Tribunal’s view, he has not provided a satisfactory explanation for not complying with that fundamental condition.

1. 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.

2. 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, as the delegate’s decision notes, and the Tribunal also adopts this view, 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.

3. 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.

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

5. 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