Singh (Migration)

[2019] AATA 1264

Singh (Migration) [2019] AATA 1264 (7 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akashdeep Singh

CASE NUMBER:  1713829

HOME AFFAIRS REFERENCE(S):           BCC2017/1407598

MEMBER:Brendan Darcy

DATE:7 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 April 2019 at 1:13pm

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 – serious workplace accident – recovery period of three months – lack of academic progress – length of non-enrolment – 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 20 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached a condition imposed on his student visa as the grounds for cancellation and that the grounds for cancellation outweighed the grounds for not cancelling. 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 26 February 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent; however the registered migration agent did not attend the scheduled hearing.  

5. 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

6. 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?

7. 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).

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

9. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 25 July 2014 and the stay period of the visa was extended up to and including 30 August 2017. The decision report also stated the applicant had not been enrolled in a registered course of study from 6 October 2016 to 6 June 2017.

10. During the hearing the applicant claimed that he enrolled in a Certificate IV in Business at Kangan TAFE which he completed, as well as a Diploma of Management with the same education provider and a Bachelor of Business (Management) at Victoria University whose enrolled were later cancelled. The applicant then enrolled in a Certificate III and IV in cookery, a Diploma of Hospitality and a Bachelor of Business at Scott’s College. He did not complete any of this course work and that he was not enrolled from 6 October 2016 until he enrolled again in 6 June 2017 in a number of courses at Stott’s College including a Bachelor of Business

11. On 23 May 2017, the applicant provided consent to electronic communication to his personal email.

12. The departmental file indicates that that the applicant was contacted by a departmental official and issued the Notice of Intention to Consider Cancellation (NOICC) on 26 May 2017, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe.

13. The applicant requested an extension to the NOICC responded on 5 June 2017, which was granted. The applicant then provided a response to the NOICC invitation on 9 June 2017. There was no dispute about condition 8502 being breached as the grounds for cancellation in that response.

14. The delegate proceeded to cancel the student visa on 20 June 2017 and validly applied to have the delegate’s cancellation decision reviewed by the Tribunal on 28 June 2017. The decision record was attached to this review application.

15. At the scheduled hearing, the applicant did not dispute there was a breach of condition 8202 while he was holding this student visa under review.

16. Based on the available evidence, the applicant was not enrolled in a registered course between 6 October 2016 and 6 June 2017 – a period of about nine months.

17. Accordingly, the applicant has not complied with condition 8202(2), As the applicant had breached s.116(1)(b) of the Act, the grounds for cancelling this visa under review existed.

    Consideration of the discretion to cancel the visa

18. 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’.

19. On 21 February 2019, the applicant responded to the hearing invitation and submitted a number documents, including:

    ·A three page statement dated 20 February 2019 signed by the applicant. The letter indicates the applicant had a significant injury on August 2016 and that he was immobilised for a long period of time (three months); that he did not have written communication with his education provider about his absence; that there were difficulties with his mother’s mental health problems (depression and borderline personality disorder) and the possible breakdown of her marriage; that the situation affected his mental and physical capacity to engage his studies. It further states that his mother was admitted to hospital in February 2017; that he himself suffered anxiety and that later he was accepted an letter of offer from Stott’s College although he was sceptical about it. The letter requested that the Tribunal provide the applicant with the benefit of the doubt that he is a genuine student committed to his studies.

    ·Patient information from a public hospital dated 3 August 2018 indicating the applicant had injured his left thumb requiring him to be admitted overnight and that he required surgery following a workplace accident that lacerated 90 per cent of his thumb;

    ·A letter from Acknowledge Education (trading as Stott’s College) on 6 June 2017; and

    ·A number of Confirmations of Enrolment indicating that he enrolled in coursework at Stott’s College on 6 June 2016. 

20. It is noted in this consideration of the Tribunal’s discretionary powers that the applicant was provided with a post hearing opportunity to submit a number of documents to support the reasons for no cancelling his visa and to do so by 12 March 2019. Neither on this date nor right up to the time of making this decision did the applicant or anyone on his behalf submit any further submissions or documents. 

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

21. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as he was not enrolled in a registered Bachelor’s or Master’s course and had not been attending classes right up to the NOICC being issued. The applicant did not disagree with this either in his written submissions or during the scheduled hearing.

22. The applicant has claimed that in at least in part he was unable to study as he had a serious but treated workplace accident which required surgery on his left thumb. The delegate accepted this noted that the applicant had stated that he need three to nine months to recover and that the education provider gave him ‘the run around’ about his capacity to attend. The medical information indicates the maximum time for recovery was three months. The delegate had considerable time to arrange deferment with his educational provider and there was no evidence before that he sought deferment in relation to compassionate or compelling grounds.

23. During the hearing, the applicant stated that the time he required was three months and had asked for a deferment but it was not granted. He stated that he travelled to India for the funeral of his close friend and had asked for a deferment but it was not granted. He claimed there was a family violence involving his father hitting his mother arising his mother’s mental health difficulties. He also claimed there was a property dispute between his family and relatives and that there was associated violence (He stated the issue was not settled) He said these problems occurred after he returned to Australia in February 2017 and that he knew about these problems from his brother.

24. During the hearing, the Tribunal said it found the document about his mother’s health to be illegible and requested that he provide another document to outline his mother’s mental and physical health problems and treatments. The applicant acknowledged that the document was illegible and undertook to provide additional documents. However the applicant did not provide any information about his mother’s health situation at all.  

25. The applicant was asked to provide court, police or legal documents to support his claim about a property dispute. However the applicant did not provide any documents or any explanation he was not able to gain those documents. 

26. There is also no psychologist or medical professional that the applicant had been sought to address his claimed anxiety or mental health symptoms.

27. There is also no emails or documented exchanges between the applicant and his education provider that he ever requested a deferment or suspension of his studies or that he tried to mitigate his non-compliance with condition 8202 at any earlier date than the issuing of the NOICC.

28. In the absence of any substantiated documents when the applicant was provided with ample opportunity to submit them, the Tribunal finds that the applicant has deliberately fabricated claims about his mother’s mental health, about domestic violence, about any difficulties with the education provider in seeking a deferment or any other attempts to avoid or mitigate non-compliance with condition 8202 which led to the grounds for non-compliance. While the Tribunal accepts the applicant encountered a serious workplace accident, his recovery was only three months. The Tribunal anticipates that had the applicant sought deferment during his period of time it would not have been refused. As there is no evidence that he requested for deferment and noting that he was discharged from hospital soon after the surgery, the Tribunal is unable to be satisfied the circumstances were beyond his control.  Accordingly, there is no evidence that the applicant’s extenuating circumstance when his non-enrolment occurred in October 2016 could not have been avoided or that his non-compliance with condition with 8202 could not have been mitigated. The Tribunal gives the evidence very little weight towards the visa not being cancelled.

    The purpose of the visa holder’s travel to and stay in Australia

29. It is noted that the applicant had arrived in Australia in 2014 and only completed a Certificate IV in business. The applicant stated that he wanted to become a chef although he enrolled in business related coursework when he arrived. The applicant claimed that he chose this enrolment in Business and not Hospitality Management for the grant of the visa as he was guided by an education or migration agent. He said there was considerable pressure on him to go abroad because his cousins were educated overseas and it was his mother’s dream.

30. While it plausible that the applicant does genuinely does wish to complete his studies for these claimed reasons, in the context of the Tribunal’s findings above in which the applicant is found not to have any extenuating circumstances beyond his circumstances to explain the long period of time that he was non-compliant with condition 8202 strongly indicates to the Tribunal that he did not travel to Australia for the purpose of full time study in a Bachelor degree for which the visa under review was granted. Due to the lack of academic progress to date and the lack of extenuating circumstances beyond his control leading to his non-compliance, the Tribunal is not satisfied that he will take seriously the conditions imposed any further student visa granted and that he is not strongly or personally motivated to complete his studies, even while accepting there are family expectations for him to do so. 

31. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives this no weight in favour of the visa not being cancelled or being a genuine student.

    The extent of compliance with visa conditions

32. There is no evidence before either the Department or the Tribunal to indicate the applicant did not comply with other conditions. The Tribunal gives these factors some weight in favour of the applicant.

33. The extent of non-compliance of condition 8202(2), in which the applicant was not enrolled in a Bachelor’s or Master’s degree for around a nine month period, is found to be substantial by the Tribunal. As discussed in the hearing, neither did the applicant seek for deferment or a suspension of studies or mitigate his non-compliance until after the issuing of the NOICC. The Tribunal gives these considerations substantial weight towards the visa being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

34. The delegate accepted that some hardship may be caused to the applicant should the applicant depart from Australia as a result of his via being cancelled but stated that he had ample time to rectify the breach of condition 8202.

35. During the hearing, the applicant feared that his psychologically vulnerable mother will not receive the news of the cancellation of his visa well and her mental health will deteriorate. He said that while his father is aware of his current migration situation, his mother believes that he has a degree and it is his intention not to hurt her. He admitted he continue his studies in India although he will start behind his peers due to a loss of several years of not studying or academically progressing.  It is also accept there has been financial loss due to the applicant’s loss of academic progress.

36. As mentioned above, the Tribunal not only does not accept the claimed extenuating circumstances about the mental health symptoms of the applicant and his mother, the claims  finds that they have been fabricated. While it accepts some emotional hardship arising from this visa remaining cancelled, including disclosing to his mother about his lack of academic progress, it does not accept the emotional and psychological hardship to be faced will be severe or significant.  

37. Whilst the Tribunal accepts that the applicant may suffer some hardship, including emotional, psychological and financial hardship arising from his mother’s disappointment and her mental health, if the visa remains cancelled, it finds on the evidence that he has not demonstrated any significant hardships. The Tribunal gives these hardship considerations little weight towards the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

38. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department.

39. Due to the adverse credibility findings mentioned above regarding fabricated claims, the Tribunal is not satisfied he is a genuine student who has the capacity to uphold the condition any further visa that would be granted or that he has any circumstances beyond his control that led to the grounds for cancellation.  It places significant weight on these considerations in not having the visa reinstated.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

40. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

41. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. The applicant stated that he is able to return to India and study but he has wasted three years and would prefer to remain in Australia to complete his studies. Neither the applicant nor his representative at the scheduled hearing or in any written submission presented compelling reasons 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

42. The applicant does not have any dependants and is not in a spousal relationship. 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

43. No claim during the schedule hearing or his written submissions advanced that the applicant is seeking asylum or has any fears of serious or significant harm the Indian state or any non-state actors. As the applicant is not barred from applying for a protection visa, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Any other relevant considerations

44. The Tribunal notes that the applicant stated that he attends Sikh temple on a regular basis and participates in sports. There is no suggestion that the applicant has broken any criminal or any other significant laws in Australia or that he is not a person of significant poor character. The Tribunal places on a small amount of weight on this factor in his favour.

    Conclusion

45. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

46. Overall the applicant’s claimed reasons for not cancelling his visa had been weak and fabricated.

47. Considering the evidence provided, cumulatively considered, and on weighing the above factors as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.