Singh (Migration)

[2019] AATA 1068

Singh (Migration) [2019] AATA 1068 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arshdeep Singh

CASE NUMBER:  1710481

HOME AFFAIRS REFERENCE(S):           BCC2017/607119

MEMBER:Stephen Witts

DATE:14 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 March 2019 at 9:22am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – study record – only completed one course since arrival – study gap of over eight months – did not study in a higher education course of study – consideration of discretion – health issues – drug addiction – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 May 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not a genuine student. 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 7 March 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(fa) - not a genuine student

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

10. According to the delegate’s decision record, provided the Tribunal by the applicant, the applicant was granted his visa and arrived in Australia on 2 December 2014.

11. According to the delegate’s decision record:

    a)on 12 January 2015 the applicant’s enrolment in a Diploma of Business was cancelled by the educational institution due to his change in student enrolment

    b)on 3 August 2015 the applicant’s enrolment in a Certificate IV in Business Administration was cancelled by the educational institution due to unsatisfactory attendance

    c)on 3 August 2015 the applicant’s enrolment in a Diploma of Business was cancelled by the educational institution due to non-commencement of studies

    d)on 6 October 2015 the applicant’s enrolment in a Bachelor of Business (Information Systems Management) was cancelled by the educational institution due to non-commencement of studies

    e)on 25 March 2016 the applicant completed a Certificate IV in Accounting

    f)on 18 April 2016 the applicant’s enrolment in a Diploma of Accounting was cancelled by the educational institution for non-commencement of studies

    g)on 26 July 2016 the applicant’s enrolment in a Diploma of Leadership and Management was cancelled by the educational institution for non-payment of fees

    h)on 21 February 2017 the applicant was approved enrolment for a Certificate III in Painting and Decorating which began on 15 March 2017

    i)on 21 February 2017 the applicant was approved enrolment in a Diploma of Building and Construction (Management) which was due to commence on 15 June 2018

12. According to the delegate’s decision record the applicant stated that his intended purpose of travel to and stay in Australia was to study. However, according to the delegate the applicant has not maintained the study plan that the applicant originally outlined when he applied for his student visa.

13. According to the delegate since the last day of study for his leadership and management diploma and commencing study in a Certificate III in Painting and Decorating the applicant had a non-study gap of over eight months.

14. According to the delegate’s decision record since the applicant’s arrival in Australia on 2 December 2014 he has only studied for approximately a total period of around 12 months.

15. According to the delegate’s decision record the applicant has not held enrolment in a higher education course of study which was required for the level that his visa was granted. The delegate further stated that since his time here in Australia the applicant has only completed one course.

16. According to the delegate’s decision record the applicant did not provide a response to the departments Notice of Intention to Consider Cancellation (NOICC).

17. According to the delegate’s decision record the applicant has demonstrated a lack of attendance and course progression and as of the date of decision was not holding a valid enrolment in a principal course required by his TU573 student visa and that therefore the applicant’s non-compliance is significant.

18. Adopting the procedure under s.359AA of the Act the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record. The Tribunal asked the applicant if he wished for some additional time to consider this record prior to having a discussion with the Tribunal.

19. The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record.

20. The applicant’s PRISMS record indicated that he has had the following enrolments:

    a)Certificate IV in Business Administration cancelled in 2015

    b)Diploma of Business cancelled in 2015

    c)Certificate IV in Accounting finished on 25 March 2016

    d)Bachelor of Business (Information Systems Management) cancelled in 2016

    e)Diploma of Accounting cancelled in 2016

    f)Diploma of Leadership and Management cancelled in 2016

    g)Certificate III in Painting and Decorating cancelled in 2017

    h)Diploma of Building and Construction (Management) cancelled in 2018

21. The Tribunal had a discussion with the applicant about his study record here in Australia. The applicant confirmed that his only completed qualification obtained since he arrived here in December 2014 was a Certificate IV in Accounting which he completed on 25 March 2016. The applicant also stated that he did not actually commence any of his other enrolments here except for his Certificate IV in Business Administration which he began on 9 February 2015 and studied for six weeks prior to cancelling this enrolment, and his Certificate III in Painting and Decorating which he stated he also studied for up to 6 weeks prior to his visa being cancelled. The applicant confirmed that he did not actually begin any of his Diploma of Business enrolments, his Bachelor of Business enrolment, his Diploma of Accounting, or his Diploma of Leadership and Management. He stated that he did not begin his Diploma of Building and Construction in 2018 as by that time his visa was cancelled.

22. The applicant stated that he originally decided to come to Australia to study as from his high school days he always had an intention to study overseas. He stated that he completed his high school level education in 2014 and then went on to complete a short English course prior to his arrival here in December 2014.

23. When asked by the Tribunal to provide evidence as to why he did not continue with his business and accounting enrolments the applicant responded by stating that because he was involved in taking drugs he was not able to continue with these enrolments.

24. When asked by the Tribunal to state why he enrolled in his leadership and management course in 2016 but did not proceed with it the applicant stated that he wanted to study but couldn’t because of his bad habits.

25. When asked by the Tribunal why he decided to study his painting and decorating course in 2017 the applicant responded that because he was in Sydney at that time and got a job in the painting industry he decided that he would then study painting. He stated that he then developed the idea that he could start a business in painting back in India as India was a developing country and will have lots of construction work.

26. When asked by the Tribunal as to whether the delegate was correct in its intention that the applicant had an eighth month study gap between his leadership and management course and commencing study in his painting and decorating course the applicant acknowledged that he did have at least an eight month gap during this period of time.

27. When asked by the Tribunal to comment on the delegate’s contention that the applicant, whilst on a TU573 student visa, had an obligation to study at higher level, the applicant responded that he knew that was the case but that he just was not able to study at that level because of his bad habits.

28. When asked by the Tribunal to comment on the delegate’s contention that the applicant did not respond to his NOICC invitation the applicant stated that he did not receive it at first as his email wasn’t working and he didn’t get the letter initially either.

29. The applicant has provided various medical records to the Tribunal (AAT file folio 24-27) that indicates, according to the applicant, that he may suffer liver damage if he does not resolve his drug habit. He stated to the Tribunal that he is no longer affected by drug addiction.

30. The applicant provided a statement to the Tribunal (AAT file folio 28-30) where he stated that he initially came to Australia to gain a higher education. He stated that he worked part-time in 7/11 after his arrival here and started to lack motivation in his studies because he had no friends and because, he stated, the college staff were rude. He also stated that he got a shock when he heard that his father’s business had suffered a loss and that his family would have trouble supporting him financially for a period of time. He stated that his family could only send him half his fees. He stated that he had trouble facing life and was offered drugs but said he refused them. He further stated that his study difficulties here led his mother to getting a heart attack and being admitted to hospital. He stated that he then began to suffer from depression and started taking drugs. He stated that upon taking on new enrolments he had difficulty studying because he was under the influence of drugs. He stated that he then subsequently was successful in stopping his drug abuse. He stated that he started to work as a painter and that he then heard from the Department that his visa had been cancelled. He stated that he could not tell his family about his problems here at that time as he was scared of his mother’s medical condition which led him to be depressed and to engage in further drug taking. He further stated that after a health examination his doctor said that he might have problems with his liver which would exacerbate if he continued to take drugs.

31. The applicant further stated in this statement that he chose to study painting and decorating as this was an area he would like to work in and that his enrolment in a Diploma of Building and Construction will be very useful in providing him with knowledge and competence in the building and construction area.

32. The Tribunal has considered the evidence presented by the applicant in regard to his study record here specifically his stated intentions to come here and study for a business qualification and then his explanation that because of his depression and drug addiction he could not proceed with these enrolments, and his evidence for the changes made to his study choices in leadership and management and painting and decorating and finds that the applicant has not provided an adequate explanation for his poor study here in Australia.

33. The Tribunal, although acknowledging that the applicant had been suffering from drug addiction for a period of time during his stay here in Australia and for financial issues of a temporary nature the Tribunal finds that the applicant has not been able to actively pursue his study here in Australia, has made a number of disparate choices in different disciplines which would suggest that he actually does not have a serious intention to actually study for and achieve any specific qualification here in Australia and it is also noted by the Tribunal that the applicant has only been able to finish one certificate level qualification whilst here and didn’t actually commence most of the courses he did enrol except for his first course in business administration that he only studied for six weeks and his painting and decorating course for a few weeks. The Tribunal is also concerned that the applicant was never able to study at higher level here in breach of his original 573 visa and that he had, by his own evidence, significant study breaks throughout his time here.

34. The Tribunal has considered the evidence provided by the applicant including the applicant’s mental health and drug related issues, his lack of friends here in Australia and the personal issues he may have had with academic staff, as well as his mother’s illness back in his home country, but finds that the applicant has not provided adequate evidence that causes the Tribunal to give weight to this in favour against cancelling the applicant’s visa.

35. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

36. 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’.

37. The Tribunal has considered any submissions provided to the Department, and to the Tribunal, and also the evidence taken at the Tribunal.

    ·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

38. As above the applicant stated that he first came to Australia on a student visa to to to study after he completed high school as he wanted to study overseas, specifically in the field of business.

39. The applicant stated that he has a mother and father back in his home country and a sister in Australia. He stated that at first he lived with his sister but now lives by himself renting in Melbourne. He stated that he is not sure what kind of visa his sister is currently on but stated that she originally came here on a tourist visa and is now living here with her husband.

40. The applicant stated that he is not working at this present point of time but he last worked in 2016 doing painting jobs and also working in a 7/11 store. He stated that since his arrival here he has not travelled home to India or anywhere else outside Australia.

41. The applicant stated that he was managing himself financially here with assistance from his sister and his sister’s husband.

42. When asked by the Tribunal to outline what compelling need he would have to remain in Australia on student visas the applicant responded that he wants to study in Australia now that he is no longer affected by a drug addiction and then he would return home once he has finished his painting courses here in Australia. He stated that he did not consider studying back in his home country. He stated that at this point of time he couldn’t face his family because of his poor study record here and that his mother had had a heart attack which, he said, came about because his mother was worried about his situation here. He stated that his parents did not know specifically about his drug habit but that he was now no longer affected by this addiction. He also stated that his mother is in reasonable health now although the family is under some stress.

43. The Tribunal, although acknowledging that the applicant may have suffered from depression during his time here in Australia, although it is noted by the Tribunal that no medical evidence was actually provided to this effect, and has been suffering from drug addiction, the Tribunal finds that the applicant could return home at any time and spend time with his family and put his affairs in order and either study in India or engage in some other work activity. The Tribunal therefore finds that the applicant does not have a compelling need to remain in Australia on student visas.

44. The applicant has not provided any evidence to indicate that if the visa was granted he had any commitment to making a success of his study here in Australia.

45. There is not sufficient evidence before the Tribunal to indicate that the applicant has a compelling need to travel or remain in Australia. There is nothing preventing the applicant from returning back to his home country to be with his family or alternatively pursuing other visa avenues once back in his home country. The Tribunal acknowledges that the applicant has completed one qualification, his Certificate IV in Accounting, but nevertheless finds that in all his time here on a student visa that the applicant, despite numerous enrolments, has not succeeded in plotting a study course here and making a success of his time here as a student.

46. The Tribunal is not satisfied that the applicant has a compelling need to travel or to remain in Australia on student visas.

    ·the extent of compliance with visa conditions

47. The applicant was granted a higher education TU573 student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress in the higher education category.

48. The applicant also acknowledged that he did not contact the department or make any effort to inform the department that he was not enrolled and did not study during a significant part of his student visa period.

49. The Tribunal finds that the applicant is significantly in breach of his student visa conditions and as such the Tribunal gives some weight to this in cancelling his visa.

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

1. When asked by the Tribunal to comment on any degree of hardship that he would suffer of a financial, psychological, emotional or other nature the applicant stated that if he had to go home now his mother might get sick again and that although he has overcome his drug addiction he doesn’t want his mother to know about it. He stated that he did not want his parents to know about his poor study record here over the last five years. He stated that whatever happened in his life happened because he was involved in bad company and drugs and that this was his last chance to remedy that.

2. As above, the applicant stated that he would experience some hardship having to return home to his home country and begin again over there.

3. The Tribunal acknowledges that the cancellation of the applicant’s visa would be a difficult situation for the applicant and possibly his family and that there may be some emotional consequences. The applicant will need to work with his family to ensure that he re-establishes himself back in his home country and maintains his mental health and drug free habit of life. The applicant will also need to work closely with his parents to ensure that they can emotionally adjust to him being back at home. However, the Tribunal is satisfied that there is not a degree of hardship that means that the visa should not be cancelled.

4. The Tribunal does not accept that the applicant would not be able to study in some form back in his home country that would allow him to create a future for himself. The Tribunal is concerned that the applicant has now been here for some considerable period of time without being able to effectively study and that effective and successfully completed study may not be possible for the applicant here in Australia as he has not been able to cope adequately with any study or lifestyle demands here in Australia up to this point.

5. Overall, looking at the circumstances cumulatively, the Tribunal is satisfied will that there is not a degree of hardship that means the applicant’s visa should not be cancelled.

   ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

6. The Tribunal is mindful of the fact that the applicant has experienced a significant health related issue here in Australia with drug addiction and consequential mental health and possible physical health complications. However the Tribunal finds that these explanations were not adequate explanations to the applicant’s clear breach of his visa conditions, specifically his obligation to maintain enrolment at higher level, study a registered course and progress academically. The Tribunal finds that the circumstances that the applicant found himself in here in Australia were not beyond his control. The applicant could have returned home to deal with his own and his family situation and then return back to Australia to study successfully.

7. The Tribunal therefore finds that there are no grounds for cancellation beyond the visa holder’s control.

   ·past and present behaviour of the visa holder towards the department

8. 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.

   ·whether there would be consequential cancellations under s.140

9. There is no evidence of consequential cancellations under s. 140.

   ·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

10. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

11. However, it is unlikely to the visa applicant will be detained but rather provided with a time-limited period in which you can leave the country or apply for review of the decision.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

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

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

13. No such considerations are relevant in this case.

    ·any other relevant matters

14. The Tribunal has given consideration to the applicant’s evidence in regard to any reasons why the applicant’s student visa should not have been cancelled. In particular the Tribunal has considered the applicant’s evidence regarding his health issues here, and his drug addiction. However, the Tribunal does not find that this is an adequate set of circumstances that presents as a compelling need for the applicant to remain here in Australia on student visas.

15. The Tribunal also appreciates an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from gaining employment in India, or studying in India. The population of India, and its economy, is significant and there are many people in full-time professional employment without a specific education from Australia, the applicant is currently saying that he wants to work in the construction sector, specifically as a painter, and such professional opportunities would be available back in India.

16. The Tribunal has considered the applicant statements and evidence given at the hearing however the breach is significant. The Tribunal has considered all factors listed above both individually and cumulatively in context of the breach. The Tribunal finds that the breach is significant. As such, considering the circumstances outlined by the applicant, the Tribunal concludes that the visa should be cancelled as the applicant is not, or not likely to be, a genuine student.

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

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Witts
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.