Singh (Migration)

[2019] AATA 2771

Singh (Migration) [2019] AATA 2771 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh

CASE NUMBER:  1712364

HOME AFFAIRS REFERENCE(S):           BCC2017/1343487

MEMBER:Helen Kroger

DATE:1 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 April 2019 at 4:02pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – COE cancelled – non-payment of tuition fees – PTSD after attack – no attempt to contact department or seek deferral – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994, Schedule 2, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 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 applicant, Mr Singh, an Indian national, was granted a visa on 9 July 2014 for the purpose of studying in Australia.

3. On the 22 May 2017, Mr Singh was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant provided a statement of explanation to the Department on the 26 May 2017.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. 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 18 February 2019 to give evidence and present arguments and provided a copy of the delegate’s decision record to the Tribunal for its consideration.

6. 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

7. 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?

8. 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 applicant arrived in Australia on 13 July 2013 for the purpose of studying and was invited to respond to the Notice of Intention to Consider Cancellation (NOICC) on 22 May 2017 and provided a written response to the Department on the 25 May 2017 explaining that he was unaware that his COE had been cancelled and that his education provider had not communicated it to him.  In an explanatory statement to the Tribunal on the 7 February 2019, he indicated that his COE was cancelled due to the non-payment of tuition fees, with outstanding fees owed to the provider and explained that the College was seeking payment of the outstanding fees and that the College had not explained the status of his enrolment. At hearing, the alleged breach was put to the applicant and reference made to the delegate’s decision record that indicated that he had not been enrolled in a registered course of study since 5 September 2016. The applicant told the Tribunal that he could not recall any specific details prior to the assault and accordingly, the Tribunal provided the opportunity for the applicant to provide any supporting evidence after the hearing, including supporting documentation to indicate why he had not sought to defer from his studies. On the 1 March 2019, the Tribunal wrote to Mr Singh inviting him to comment or respond to information that it considered would, subject to his response or comments, be the reason or part of the reason, for affirming the decision under review, giving the applicant 14 days to respond. He was invited to comment on the inconsistent evidence before the Tribunal regarding his understanding of the conditions attached to his visa, the circumstances around the cancellation of his visa and why he did not seek to defer his studies in view of the personal circumstances he claims.

9. In response, the applicant provided the Tribunal with a Psychological Report on the 15 March 2019 that attests to the applicant’s emotional and physical health following a violent attack on 7 February 2019. In the hearing, the applicant submitted that he spoke to student counselling at the time, sought advice regarding possible legal action and confirmed that he did not speak to the College regarding his study options including the option of deferring and/or seeking compassionate or compelling grounds. The analysis of PTSD was provided in the report dated 31 March 2016, explaining that the results indicated a severe range of depression, anxiety and stress symptoms. It includes:

   “subjective distress and social functioning have been severely impaired over this time. Harpreet is currently unavailable to work or study….to feel safe, Harpreet has moved residence to be with his friends.”

10. Mr Singh explained that he approached the education provider in late 2016 and early 2017 to discuss his unpaid tuition fees, and that they did not advise him of his cancelled COE and reaffirmed the requirement for him to pay his tuition fees. He confirmed to the Tribunal that he did not seek advice about possible deferment of his studies during these visits.

11. Whilst the applicant claims that he was unaware that his COE was cancelled, he does not dispute the PRISM records, as referenced in the delegate’s decision, that indicate that he has not been enrolled since 5 September 2016. In his written submission dated 7 February 2019, he claims that he was aware that he had not paid the full tuition fees owed and contacted his education provider in 2016 and in March 2017 about his enrolment, and the fees outstanding. Whilst the applicant’s submissions before the Tribunal are inconsistent in regard to his understanding of the status of his enrolment and his enrolment particulars, he is consistent in his claim that his tuition fees were not paid in full and that he did not pursue his course after the attack in February 2016. There is no evidence before the Tribunal to indicate that the applicant has complied with condition 8202 that is attached to his visa.

12. The Tribunal has carefully considered the evidence before it as outlined above, and has regard to the Psychologist Report that documents a diagnosis of PTSD and the effect on his social impairment with severe depression. Whilst the report canvasses the physical and emotional issues confronting the applicant, it does not indicate that he was mentally impaired at the time the report was written. The applicant’s contact with the education provider supports this, and indicates that the applicant was aware of the unpaid tuition fees, seeking an extension to pay, yet did not seek advice on the option of deferring his studies, or any advice regarding compassionate circumstances that may have been available.

13. On the evidence before the Tribunal, namely the applicant’s admission at hearing, the Tribunal finds that 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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

15. 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. The Tribunal has considered the applicant’s evidence provided at the hearing along with the evidence given by the witness to support the applicant’s claims.

17. The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.

    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

18. Mr Singh, a 27 year old Indian National, travelled to Australia for the purpose of studying. He commenced a Diploma in Accounting at Sunraysia Tafe, Mildura, and claims that he broke his leg two weeks after his arrival, which prevented him from attending classes for one and a half months and that he did not attempt to complete assignments from home, and did not seek to defer his studies.  He indicated that on his return to class, he found it difficult to catch up, that he found accounting too hard and that he transferred to the Southern Cross Education Institute to commence a Diploma in Business which he claims he pursued for 8 – 9 months.

19. Mr Singh submitted that he was the victim of a knife attack in February 2016 and indicated at hearing, that he has poor recollection of his study details and could not indicate any specific details regarding his courses, the periods when he attended class or the history of his tuition fees. In his explanatory statement regarding this time he makes the following submission which is extracted below:

    It took me more than 5 months and more than 20 sessions from Dr Shawn Goldberg to just walk out on roads again without being afraid. I was so scared that I missed my College for some days. Before I was going regular to college and speaking with college staff about my classes. I was submitting my course work regularly. Later I asked about my result but college replied me, college will not answer or will not provide any result until I will pay rest of amount. After that incident I recollected myself and explained my reasons for not to attend Cambridge International College and also explained that I need some time for the payment of my pending fees which was just $200-300 but no one listened to me and they cancelled my CoE without giving any notice and l was never aware about that. Later I have a summer break in November 2016 to March 2017. In holidays I tried to come out of mental trauma. Again tried to speak with College but college was asking me to pay off first rest of amount. Otherwise college will not explain anything about my enrolment status at Cambridge International College.

20. Clarification was sought from Mr Singh regarding the claims outlined above at hearing, and he consistently indicated that he had no memory recall of events that happened before the attack or since. The Tribunal considered the applicant’s description above that he refers to as mental trauma and his submission at hearing in relation to his emotional and physical state. This condition is diagnosed as PTSD by Dr Goldberg in his report (folio 50) and the Tribunal is satisfied that it is this state that the applicant is referencing in his written statement. Whilst the applicant consistently indicated he could not remember specific details with regard to his enrolment, he has submitted that he was not attending classes in 2016 and that he had not paid the required tuition fees, as requested by the education provider.  The applicant confirmed at hearing that he was aware of the conditions attached to his student visa and that he did not speak to the education provider regarding possible deferment or seek consideration for compassionate circumstances, whilst he dealt with his personal circumstances. The applicant indicated that he sought advice from a student counsellor regarding his legal rights to take action against the accused parties along with a victims of crime counsellor. The Tribunal does not find it unreasonable to expect the applicant to seek advice regarding his study options as well, including the requirements regarding deferment, when he has sought advice about his legal options along with accessing other student counselling services. 

21. In considering Dr Goldberg’s report, the Tribunal has considered whether the applicant was mentally impaired, a condition that would potentially impact on his actions.  The Tribunal has sympathy with the conditions outlined by Dr Goldberg, the serious impact of PTSD on the applicant, the depression he subsequently suffered, and the corresponding impact on his actions. The Tribunal is satisfied that the applicant did suffer as a result of the personal assault, and has considered the applicant’s various submissions that he sought advice about his legal rights, access to counselling, and moved in with friends, so that he felt safer. There is no evidence before the Tribunal however to indicate that the applicant sought advice about his studies and the implications on his visa, submitting that later in 2016 and again in 2017, he contacted his education provider regarding his outstanding tuition.  This indicates that the applicant was aware that this was an issue, and submitted that he did not consider returning home, as he would feel like he had failed.

22. Mr Singh submitted at hearing that he wanted to study in Australia as the standards are better here and that if he returned home without having achieved something, his depression would continue. Since receiving the NOICC on 22 May 2017, the applicant enrolled in Certificate III and Certificate IV courses in Automotive Mechanical Diagnosis, with documentation indicating that the tuition fees were not paid, and the applicant claims that should he be allowed to stay in Australia, this is the area he would like to pursue. The Tribunal noted that this course did not comply with a higher education sector visa and does not consider it unreasonable for the applicant to understand the conditions attached to his TU Subclass 573 visa, notwithstanding his claims that he doesn’t understand the visa system.

23. The Tribunal has given careful regard to the evidence before it and in particular, the applicant’s oral and written submissions.  The Tribunal accepts that the applicant commenced his studies in Australia on his arrival in July 2014 and recognises that he broke his leg only two weeks after his arrival, affecting his studies, that led to him transferring to Melbourne to pursue initially a Diploma in Business and accepts his claim of studying for up to 8 months in 2015. The applicant submitted at hearing that he attended classes for 2 weeks after his initial arrival in Australia, and for a period of 8-9 months when he transferred to Melbourne, a cumulative period of less than one academic year since his arrival in 2014. The Tribunal has given consideration to the length of period that he was not enrolled since 5 September 2016, a period of 8 months, and finds that this breach is significant in the study period of the applicant, whilst considering the claims that the applicant did not seek to defer his studies in order to address his personal circumstances, and did not advise the Department of his changed circumstances. Accordingly, the Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    Circumstances in which ground of cancellation arose

24. The applicant submitted an explanatory statement to the Tribunal on the 7 February 2019, commenting on the circumstances around his visa cancellation. The applicant was violently attacked in February 2016, which led to PTSD, requiring medical support.  He told the Tribunal that he was afraid to go outside his house, and that he stayed in his room, rarely leaving it, and had little interaction with those he shared the house with.   He indicated that his family and friends have financially supported him since this time.  As a result of the trauma, he indicated that he had poor memory recall.  The applicant confirmed that he had not paid his tuition fees in full prior to the cancellation of the COE.  In response to a 359AA invitation to comment on his enrolment details, his understanding of the conditions attached to his visa, the attack he suffered and why he did not seek to defer his studies, he submitted a report from a Psychologist, Dr Shawn Goldberg. The applicant submitted an explanatory statement on 7 February that is extracted below:

    My main reason is to cancel of my CoE and visa is, Actually as per Cambridge International College, College cancelled my enrolment non- payment of tuition fees. But I have been paying my full fees and regularly. But at the very end of course I needed to pay off only $200- 300. Rest I have paid my full semester fees approximate of $7000.00. I paid my fees in cash method so College never generated fees payment receipt to me. College always replied me back that once I will pay off whole amount then college will issue full fees payment receipt. So for me it is hard to get record. But I have paid my fees and college cancelled my CoE and enrolment without informing me or any type of warning sent to me.

    Actually, in March 2016 I have been attacked with knife by Unknown persons to me at BP station in Deer Park Victoria. I was badly injured. My back was injured badly. I called Victoria police and Victoria police arrested those people. I was mentally in trauma as people attacked me without any reason. I was very young to take such trauma. My mind and body was totally shaken by that incident. I always thought that what have done to those people that they tried to kill me. I was so shattered that I became very hopeless. Still by today when I thought about that incident I feel so scared.

    It took me more than 5 months and more than 20 sessions from Dr Shawn Goldberg to just walk out on roads again without being afraid. I was so scared that I missed my College for some days. Before I was going regular to college and speaking with college staff about my classes. I was submitting my course work regularly. Later I asked about my result but college replied me, college will not answer or will not provide any result until I will pay rest of amount. After that incident I recollected myself and explained my reasons for not to attend Cambridge International College and also explained that I need some time for the payment of my pending fees which was just $200-300 but no one listened to me and they cancelled my CoE without giving any notice and l was never aware about that.

    Later I have a summer break in November 2016 TO March 2017. In holidays I tried to come out of mental trauma. Again tried to speak with College but college was asking me to pay off first rest of amount. Otherwise college will not explain anything about my enrolment status at Cambridge International College.

    Finally, t got an email from Immigration Department in May 2017. After that I got the notice of consider cancellation from the Department of Immigration, I visited few agents as I was not well aware about these things and visas and visas conditions. I spent too much money to consult with different agents. I have been advised apply for another student visa and arranged my new enrolment to start new course as soon as possible.

    I would like to say that I want to do my further studies. Australian study is internationally recognized and equipped with extensive knowledge of course requirements. Australian study is having highest standard of education.

    I always meet my all student's visa condition as per Immigration Department's instructions. And in future also, I will take care of all of my study visa conditions attached to my student visa.

1. In Dr Goldberg’s report, dated 31 March 2016, it details a diagnosis that includes PTSD that caused significant emotional distress and functional impairment following the physical attack. Whilst the applicant refers to “mental trauma”, the Tribunal acknowledges that the PTSD had a serious effect on him, as documented in the Psychologist Report. However the Report indicates emotional and social impairment rather than mental impairment and the Tribunal finds that it is not unreasonable to expect the applicant to consider study options, with regard to his visa conditions, as well as legal and counselling considerations. At hearing, Mr Singh indicated the emotional distress and the affect the PTSD has had on him. Whilst the Tribunal recognises that the violent attack had adverse effects on the physical and emotional state of the applicant, it has considered the action, or lack thereof, taken by the applicant, and his decision to stay in Australia during this time, rather than seeking a deferment from the education provider and returning home to recover his health, before the resumption of his studies.

2. The applicant at hearing submitted that he had taken advice on his legal options but had not sought advice in relation to possible deferment. The Tribunal does not believe it to be unreasonable to expect the applicant to consider deferment to deal with trauma, whilst recovering.

3. Given the circumstances as outlined above, the Tribunal gives limited weight to these reasons provided by the applicant and more weight to the period in which the applicant was not enrolled in a registered course of study. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

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

4. Mr Singh explained at hearing the importance of him staying in Australia to study.  He indicated that he wants to pursue a Tafe course in automotive mechanics and indicated his wish to stay in Australia to undertake studies that he can complete so that he can eventually return home after completing studies. He indicated that the studies in Australia were of a better standard and that he would not be able to get over his depression if he were to return home. He indicated that his parents were not aware that he was not studying, and that they were unaware of the attack, and that he needed to study as a means to improving his mental health. He did not indicate that his parents would not support him if he returned home as he hadn’t advised them of the changed circumstances since 2016.

5. The Tribunal has considered the emotional effect of the circumstances as described above and whilst recognising the applicant’s personal disappointment should he be required to leave, has also considered the opportunity available to the applicant to focus on the restoration of his health in the familiar environment of family and friends.

6. The Tribunal does not consider it unreasonable for the applicant to consider the restoration of his health with the support of his family at home.

7. The Tribunal appreciates that a cancellation would cause some emotional hardship as described by the applicant. However the Tribunal gives more weight to the significance of the breach, the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant.

8. The extent of compliance with visa conditions

9. 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 is mindful of the significance of the breach.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

   Past and present behaviour of the visa holder towards the department

10. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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

11. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision. Should the visa be cancelled, the applicant may be subject to a three year exclusion period imposed by the Department.

    Whether any international obligations would be reached as a result of a cancellation

12. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

13. The applicant submitted that he was not aware of the cancellation of his COE, indicating that he approached the education provider about his unpaid tuition fees and that they had not advised him of the cancellation.  It is reasonable to expect that the applicant would understand the consequences of not paying his tuition fees and not attending his classes for the 2016 calendar year. Whilst the applicant claims that he doesn’t understand the visa system, he confirmed that he understood the conditions attached to his visa, namely that he held a higher education sector visa and that he had to have continuous enrolment. The applicant identified the course he wished to enrol in was a Tafe course

14. Mr Singh was issued the NOICC on 22 May 2017 and according to PRISM as referenced in the delegate’s decision, enrolled in a Vocational and Educational Training (VET) course on 25 May 2017. Given the timing of this enrolment some three days after receipt of the NOICC, and his claim that he approached his previous education provider in March 2017 to request further time to pay his tuition fees, the Tribunal considers it likely that this enrolment was prompted following the receipt of the NOICC.

15. The Tribunal has considered these relevant matters as set out above, and gives limited weight to these matters and more weight to the period of the breach. As such, the Tribunal finds that these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

    The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach. The Tribunal finds that the breach in excess of eight months is significant in the context of a student’s study period, the fact that the applicant was aware ot the conditions placed on his visa, along with the fact that he made no attempt to defer his studies or contact the Department to advise of his changed circumstances, and made no attempt to return home.

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

    DECISION

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

    Helen Kroger
    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.