Singh (Migration)

[2019] AATA 2791

Singh (Migration) [2019] AATA 2791 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspreet Singh

CASE NUMBER:  1822440

HOME AFFAIRS REFERENCE(S):           BCC2018/1296376

MEMBER:Adrienne Millbank

DATE:2 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 02 April 2019 at 4:03pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolment in various vocational courses – not enrolled in course since 2017 – using student visa to maintain residence in Australia – long-term depression – desire to pursue auto-mechanic course – can be pursued in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 189, 359AA
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 July 2018 made by a Delegate of the Minister for Home Affairs 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 applicant is a 34 year old Indian national who first arrived in Australia on 16 July 2009 on a Student (Subclass 572) visa. He was granted the Subclass 573 visa onshore on 30 October 2015.

3. Since arriving in Australia the applicant has enrolled in: a Certificate III in Printing and Graphic Arts (Graphic Pre-press); a Diploma of Business; a Diploma of Information Technology (Software Development); an Advanced Diploma of Business; a Diploma of Management; an Advanced Diploma of Management; an Advanced Diploma of Marketing; a Vocational Graduate Certificate in Management (Learning); and a Bachelor of Business. He successfully completed three of the above courses: the Certificate III in Printing and Graphic Arts (Graphic Pre-press); the Diploma of Information Technology (Software Development), awarded on 24 August 2011, and the Vocational Graduate Certificate in Management (Learning), awarded on 18 July 2014.

4. The applicant’s Provider Registration and International Student Management System (PRISMS) records show enrolments cancelled for the reasons of non-commencement of studies, cessation of studies, and unsatisfactory course progress. They show that the applicant has not completed any course of study since July 2014, and that he has not been enrolled in a registered course of study since 28 September 2017.

5. The Delegate cancelled the visa on the basis that that the applicant had not complied with condition 8202, specifically, paragraph 8202(2)(a), which requires a visa holder to be enrolled in a registered course. The Delegate noted that the visa holder had not been enrolled for a period of ten months, and that since being granted the Subclass 573 visa on 30 October 2015 he had studied for a period of only eighteen months. The Delegate determined, having considered the visa holder’s response of 18 July 2018 to his Notice of Intention to Consider Cancellation (NOICC) of 4 July 2018, that the grounds for cancelling the visa outweighed the grounds for not cancelling.

6. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

7. The applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

8. At the hearing, adopting the procedures of s.359AA of the Act, the Tribunal advised the applicant that it had information that would lead or could contribute, subject to his comments in response, to the decision under review being affirmed. The Tribunal advised that this information comprised his PRISMS records and international movements. The Tribunal advised that the information was relevant because, besides showing that the applicant was not enrolled in a course of study, it suggested that he was not a genuine student and has used the Student visa system to maintain residence in Australia. The Tribunal advised the applicant that he could seek an adjournment and consult with his representative before responding to the information. The applicant sought and was granted one adjournment during the hearing.  

9. 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

10. 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?

11. 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 (8202(2)(a)); or in limited cases, a full time course of study or training (8202(2)(b)).

    ·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).

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

13. The applicant’s PRISMS records show his last enrolment was cancelled on 28 September 2017 for the reason of unsatisfactory course progress. In his written submission dated 19 March 2019 provided to the Tribunal on 21 March 2019, the applicant through his agent acknowledged that he has not been enrolled in a registered course of study since 28 September 2017. He confirmed at hearing that he understood the Delegate’s decision, and that he was in breach of the visa condition.

14. 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).

    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. 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’

16. At hearing the applicant claimed that he has suffered from depression since the death of his father in 2013. He stated that his mental ill-health was exacerbated when his wife, whom he met and married in Australia in 2015, was placed into detention pending her departure from the country in early 2016. He explained that she was on a Student visa, which she overstayed. He stated that he returned to India with his wife in April 2016, stayed for several months, and returned to resume his studies in July 2016. He advised that his wife is living with his mother, and that he has not seen her since July 2016.

17. The Tribunal asked the applicant why his wife was not included as a secondary, family member applicant on his Student visa applications lodged after 2015. The applicant responded that he was too depressed and mentally confused at the time he lodged these applications, and did not have the assistance of a migration agent. The Tribunal asked the applicant why he did not stay in India with his wife when they returned to India, as he did not successfully complete any course of study after his return to Australia in July 2016 and his depression was exacerbated by their separation. The Tribunal also asked the applicant why he did not seek employment in India based on his Indian degree and his Australian qualifications.

18. The applicant confirmed that he has been unable to support his wife financially because he has been able to work only limited hours, in security and driving taxis, because of work limitations on his visas and because of his depression. He confirmed that he has never sought employment based on his qualifications gained while on Student visas in Australia. He argued that the Indian job market is highly competitive, and that without bachelor or masters degree-level qualifications it is difficult to find employment in the fields he took courses in; that his qualifications are now stale; and that he would have to ‘start from the beginning’. He stated that his purpose in returning and remaining in Australia was to gain a qualification in a different field, so as to return to India with a better chance of securing stable employment.

19. The applicant stated that in 2016 he realised he did not have the ability, necessary motivation or mental health to succeed in studying in Australia at the higher education level. He decided that a more practical field of study, leading to hands-on employment, would suit him better, and that he now wants to become a car mechanic. He stated that his intention, if his visa is restored, is to enrol in a VET sector training course in auto repair. He acknowledged that he could study such a course in India, but argued that he is used to studying in Australia, and that he could complete such a course in this country in two years.  

20. The Tribunal accepts that the applicant has been depressed. He was subdued at hearing, and his representative advised that he had observed the applicant over the time of their client relationship to be depressed and low-functioning. The representative submitted that the applicant’s mental health might improve with a trade qualification enabling him return to India with the prospect of secure employment. The Tribunal accepts that the applicant’s mental health might be so improved, but does not accept that he has a compelling need to remain in Australia to pursue this objective.  The Tribunal notes that the applicant could train to become a car mechanic in India. The fact that he is used to studying in Australia, having spent nearly ten years here on Student visas, on his own admission gaining qualifications he deems worthless and, for the last five years, unsuccessfully, does not weigh in his favour.

21. Regarding his claim to have suffered a long-term depressive illness, the applicant provided a letter from a GP, dated 5 April 2016, certifying that the applicant suffered from depression and would benefit from a break from his studies and a return to India for a few months. The applicant also provided a letter from a psychiatrist in India, dated 23 June 2018, certifying that he consulted with the applicant in June 2016 in India; that the applicant was diagnosed with Major Depressive Disorder at that time; that the applicant was prescribed antidepressants and treated with psychotherapy; and that the applicant required ‘follow-ups’. The applicant confirmed at hearing that he has not been referred to a psychiatrist in Australia for diagnosis and treatment, nor has he sought the assistance of a psychologist in Australia. He advised that he still takes medication prescribed by his psychiatrist in India, sent to him from India.

22. The Tribunal does not consider that returning to India would cause the applicant financial, emotional or psychological hardship. Indeed, on the evidence provided, the Tribunal considers the applicant would benefit financially, emotionally and psychologically by returning to his wife, family and treating psychiatrist, and establishing his future in India.

23. While accepting that the applicant has been depressed, the Tribunal does not accept that the circumstances in which the ground of cancellation arose were beyond the applicant’s control. The Tribunal notes that no medical evidence was provided that the applicant was too ill to attend classes and study in 2017 or 2018, when his enrolment and visa were cancelled. The Tribunal further notes that the applicant spoke at hearing about the difficulty of paying tuition fees on limited working hours and his inability to cope with his coursework, as well as his depression being caused by separation from his wife and his inability to support her. The Tribunal considers that if the applicant lacked the ability and funds to study in Australia, and suffered depression caused or exacerbated by separation from his wife, he could have returned to India and possibly applied to return to study a more practical course at a later date in less stressful circumstances.

24. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions. The Tribunal notes that the applicant responded to his NOICC and sought and was granted one deferral from his course provider when he returned to India with his wife in May 2016. The Tribunal also notes however, as confirmed by the applicant at hearing, that he at no time contacted the Department regarding his changed circumstances and their implications for his visa and stay in Australia.

25. There would be no consequential visa cancellations. Upon cancellation the applicant would become an unlawful non-citizen liable to be detained under s.189. There is no information before the Tribunal however to indicate that the applicant would not be eligible to apply for another Bridging Visa E to enable him to remain out of detention while organising his departure.

26. The applicant would be subject to s.48 of the Act, and have limited options to apply for further visas in Australia. The applicant would also be subject to Public Interest Criterion 4013, which could prevent him from satisfying the Schedule 2 criteria for another visa within three years from the date of cancellation of the visa. The Tribunal has considered that the applicant expressed a desire to apply onshore for another Student visa. As discussed above, the Tribunal considers that the applicant could undertake the training he expressed interested in in India, and has not found the applicant to have a compelling need to remain in Australia.  The Tribunal does not find the imposition of this administrative sanction would impose hardship on the applicant beyond that intended in the policy.

27. The applicant confirmed at hearing that he has no reason to fear or otherwise not want to return to India, apart from his desire to return with the qualification of car mechanic. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Adrienne Millbank
    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.