Singh (Migration)

[2019] AATA 878

Singh (Migration) [2019] AATA 878 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pardeep Singh

CASE NUMBER:  1709786

HOME AFFAIRS REFERENCE(S):           BCC2017/790581

MEMBER:Helen Kroger

DATE:7 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 07 February 2019 at 3:33pm

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 – use of alcohol and drugs – candid and honest evidence – genuine remorse – taking full responsibility for the circumstances – desire to complete his studies – decision under review set aside

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 1 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(1)(b) of the Migration Act 1958 (the Act).

2. The applicant, Mr Singh, is an Indian national who was granted a visa on 18 March 2014 for the purpose of studying in Australia.

3. On the 20 April 2017, Mr Singh was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa and was invited to comment on a potential breach of condition 8202 which was imposed on his visa. The delegate did not receive a response.

4. The delegate cancelled the visa on the basis that 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 seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to it.

6. The applicant appeared before the Tribunal on the 6 February 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 20 April 2017 and the applicant did not provide a response giving reasons why the visa should be cancelled. At the hearing, the alleged breach was discussed, and the applicant was provided the opportunity to comment on the delegate’s decision that indicated that according to the Provider Registration and International Student Management System (PRISMS), that he had not been enrolled in a registered course of study since 11 February 2016. The applicant confirmed at hearing that this was correct and that he had not been enrolled in a registered course of study at that time.

11. On the evidence before the Tribunal, namely the applicant’s admission during the hearing along with the written submission to the Tribunal, tendered by his lawyer on his behalf, (folio 21), 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

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

13. 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’.

14. The Tribunal has considered the applicant’s submission provided to the delegate, written submissions to the Tribunal and the evidence submitted during the hearing to support his claims.

15. The information provided to the Tribunal at 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

16. The applicant was granted a visa on 18 March 2014 for the purpose of studying in Australia and commenced a Diploma in Business, leading to a Bachelor in Business with an education provider in the Gold Coast, Queensland. The applicant moved to Melbourne so that he was close to school friends from India and transferred into a Commercial Cookery course in late 2014. He claimed at hearing that he was unaware that this course did not comply with conditions attached to his class TU subclass 573 visa, and subsequently became aware after engaging a migration agent. His friends were enrolled in this course and he transferred into the same course so that they were studying together.

17. The applicant was particularly candid and honest in his explanation at hearing regarding the circumstances that followed this move to Victoria, and the evidentiary basis for this is included in the audio file.  He submitted that his friends at that time, introduced him to alcohol and drugs, that he admitted he willingly engaged in, and that the drugs took over his life  to such an extent that he stopped attending classes around March 2015. He described his self-destructive behaviour at that time as a “bad path”, and at no stage during the hearing did he seek to blame his friends or anyone else for this behaviour, taking full responsibility for the bad choices he made in being influenced by his friends who he lived with.

18. He submitted to the Tribunal that this behaviour escalated, and that he started consuming the addictive drug ‘ice’, a habit he engaged in for some eight months. It was during this time that the delegate was issued the NOICC and he claims that he was in no condition to either appreciate or understand the nature or intent of that communication. Photos were presented to the Tribunal to indicate the condition of the applicant at the time and his appearance before taking drugs. Whilst the Tribunal reviewed these photos and was satisfied that they represented the applicant in various states, the Tribunal found that it was not necessary to table the photos to further support his claim, and they were not accepted by the Tribunal.

19. The applicant submitted that his parents had arranged a marriage for him with a girl in India and that he was engaged in 2017 and had made arrangements to travel to India for his engagement. The visa cancellation was issued 10 days before his planned departure, a situation that exacerbated his abuse of drugs with the engagement breaking up towards the end of September 2018.

20. The applicant submitted that this continued state of affairs proved to be a catalyst for him to understand what he had done to himself, his extended family and his fiancée, turning to God for help.  He claims that he quit all drugs immediately, moved in with the family of another friend and has limited interaction with his previous friends who introduced him to drugs. Two of these friends were listed as witnesses, and advised the applicant that they were too afraid to attend the hearing in case they implicated themselves in relation to their own migration status.

21. The applicant explained to the Tribunal that he didn’t believe he had the capacity to study for a Bachelor or above qualification, as he had not studied at the required level since Year 12 and the subsequent drug abuse has potentially diminished his capacity to undertake studies at that level.

22. The Tribunal has carefully considered all the evidence before it and is satisfied that the applicant came to Australia with the intent to study a Diploma/Bachelor in Business which he commenced and that his immaturity at the time influenced his decision to move to Melbourne to be near his friends. The applicant indicated that his interest in the commercial cookery course continues and that it is something that he believes he is capable of completing, that provides potential and realistic employment opportunities as a chef. The applicant provided a copy of a letter of offer and agreement with education provider, acumen education, confirming an enrolment start date of 24 June 2019, should he have eligible migration status (folio 25)

23. The Tribunal has considered the evidence as outlined above, with regard to the mitigating circumstances that affected the applicant’s ability to study and his ambition to complete the course that he has received a letter of offer for. The Tribunal has considered the above factors individually and cumulatively and finds that these considerations outweigh any weight given in favour of cancelling the applicant’s visa.

    The extent of compliance with visa conditions

24. 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.

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

25. The applicant travelled to Australia for the purpose of gaining an Australian qualification, in an endeavour to improve his future employment prospects. In the applicant’s candid oral evidence, he questioned his current capacity to study at a Bachelor or above degree as a significant time had elapsed since he had completed Year 12 when he had studied foundation subjects for this course. He indicated that he could become a chef if he was able to undertake a commercial cookery course, and that this was a qualification that would open up employment opportunities.

26. The applicant is an only son, his father is a farmer, his mother stays at home, with one sister who is studying in Canada. He indicated that they had assisted him financially but that he had sold his personal possessions including a car, in order to pay for his drug habit and has significantly reduced financial circumstances.  He explained to the Tribunal that he had told his parents what had happened and that his mother was “very happy” as he had come to terms with his drug use and through meditation and support from the family of a friend, where he now lives, has been able to stop.

27. He explained that should he be required to return to India upon the potential visa cancellation, that he would perhaps try to study as he did not have any skills that would enable him to get a job. He claims that he would be socially ostracised and ridiculed, returning after five years with nothing to show for it and the effect this would have on his parents and relatives. During this explanation, the Tribunal had particular regard to the concern he expressed for his parents and family, and their potential distress and disappointment,  rather than the direct impact on his personal well-being, whilst the latter was briefly referenced.

28. The Tribunal appreciates that a cancellation of the visa would cause some emotional and immediate financial hardship and may impact on the applicant’s potential financial and economic capacity. The applicant’s previous significant health issues with his rapid addiction to drugs, including ‘ice’, indicates a real potential health risk. Accordingly, the Tribunal gives some weight to the significance of the hardship faced compared to the significance of the period of time of the breach.

    Circumstances in which ground of cancellation arose

29. As outlined above, the applicant commenced his studies in a Diploma in Business for two months following his arrival in Australia, before transferring to a Certificate in Commercial Cookery in Melbourne, in an endeavour to be with friends. He described himself to the Tribunal as being very immature at the time he arrived. He moved into shared accommodation with them where he was introduced to alcohol and drugs for the first time.

30. The applicant was candid in his description and explanation to the Tribunal, making no attempt to excuse himself for what he described as bad behaviour, rather, showing genuine remorse, ashamed of the circumstances that he had caused and was now dealing with. He dropped out of his studies in March 2015 and indicated that his drug use accelerated to the point where he started taking the drug ‘ice’ for a period of 8 months. It was during this time that he received the NOICC, and indicated that he was in no state to appreciate or understand what was required of him. The Tribunal has had regard to whether the applicant was even aware of receiving the NOICC, and is satisfied that the applicant was in a self- imposed state that significantly limited his capacity to make sound judgements and finds that it is reasonable to consider that the applicant was unaware of the purpose of the NOICC, if he indeed was aware of its receipt.  The applicant indicated that he did not seek any medical or professional assistance at any time, and has used religion as a means to re-establishing his life.

31. Given the circumstances as outlined above, the Tribunal gives significant weight to the reasons provided by the applicant in regards to the circumstances when the visa was cancellation arose and finds that these reasons outweigh any weight given to the period of time of the breach.

    Past and present behaviour of the visa holder towards the department

32. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings.

    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

33. 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.

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

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

    Any other relevant matters

35. The applicant was granted a class TU subclass 573 Higher Education Sector visa for the purposes of studying in Australia. The applicant has indicated that due to the abuse of drugs and lapse of time since the completion of his Year 12, that he does not believe that he would be able to successfully complete a degree that would comply with the conditions attached to the subclass 573 visa. The applicant submitted to the hearing a letter of offer and agreement from acumen education for a Certificate 11 in Commercial Cookery, with a commencement date of 24 June 2019.

36. The Tribunal recognises that the applicant would need to apply for a Subclass 500 visa to allow him to proceed with this enrolment and attend the course. He indicated that his family were able to provide some limited financial assistance in addition to the applicant working part time, with the limitation imposed upon the requisite visa.

37. The Tribunal has carefully considered all the evidence before it and has particular regard for the oral evidence provided by the applicant. The applicant was particularly candid and honest in the nature of the evidence provided, taking full responsibility for the circumstances that led to his visa cancellation and remorseful for the disappointment caused and his visa non-compliant circumstances. He provided a persuasive account of the personal circumstances, in particular the breakup of his engagement, that contributed to his understanding of the consequences of his actions, not only to himself, but to his extended family.

38. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

39. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector 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.