SINGH (Migration)

[2018] AATA 5183

SINGH (Migration) [2018] AATA 5183 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURJANT SINGH

CASE NUMBER:  1620524

HOME AFFAIRS REFERENCE(S):           BCC2016/3470375

MEMBER:Wendy Banfield

DATE:11 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 December 2018 at 7:48pm

CATCHWORDS
MIGRATION – cancellation – Subclass 573 Higher Education Sector visa – not enrolled in registered course – medical conditions – circumstances to defer course in applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study between 6 April 2016 and 18 November 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of India and is currently 23 years old. He was granted a Subclass 573 Student Visa on 26 November 2013 that was valid until 21 September 2017. On 11 November 2016 the Department notified him of an intention to consider cancellation. The applicant responded to the Department with reasons for his failure to maintain enrolment but did not dispute there were grounds for cancellation of the visa.

4. The applicant appeared before the Tribunal on 29 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   Evidence of the visa applicant

6. The applicant stated he came to Australia on 10 December 2013 with the intention of studying a Bachelor of Business. He was enrolled in an ELICOS course followed by a Diploma and Bachelor degree. Since his arrival in Australia the applicant said he completed the ELICOS course in April 2014 and then began the Diploma but in December 2014 he had to change college. He said he then started a Diploma of Management in January 2015 and completed it. The applicant said he then enrolled in a Human Resources course in the VET sector.

7. The applicant agreed he was not enrolled from April to November 2016. The applicant outlined a medical issue with his back for which he visited a doctor and was diagnosed with a particular condition. He said he was asked if he had anyone in Australia with him because he required care. As he did not, the applicant said he was advised to go back to India to be treated. Initially he was prescribed medication which he used for a month but it was not effective. According to the applicant he informed Apex College where he was studying about his condition. The Tribunal referred the applicant to a medical certificate stating he was not fit to study for the month of April 2016. He said it was after April that he returned to India, during which time he advised his college about his medical issue and was told it was ok. The Tribunal asked why the college would be approving leave during the period when he was no longer enrolled. The applicant said he informed the college over the phone that his condition was very bad and he was barely able to move. The applicant said he left Australia on 5 May and returned on 7 July 2016. He said his back was swollen and there was an open wound and he then developed a bladder disease.

8. The applicant was asked why he had not deferred his studies during the time he was unwell and re-commenced when he had recovered. The applicant stated he had spoken to someone at his college about his situation and they had said it was better he stay with his parents while he was being treated. The applicant returned to Australia in July 2016 but claimed he was still having problems with his back wound and was adversely affected by the medication. The applicant claimed he could not return to his studies because he could barely even walk. He said he went to a doctor in Australia a couple of times but was taking medication from India.

9. The applicant advised that he had wanted to resume his course but when he contacted the college, he was told he had been reported to the Department for non-attendance. The applicant claimed that in September 2016 he completed the requirements for the Diploma of Management because the completion was still pending. The applicant said he had wanted to finish studies in Human Resource Management. The applicant agreed he had re-enrolled to study an Advanced Diploma in Leadership and Management in November 2016 after paying for fees. However, the Department still cancelled his visa. The applicant said he did not continue with the course because he was advised by his representative that he no longer had study rights. The applicant said he still wanted to complete a Diploma and a Bachelor degree.

10. Regarding any hardships that would result from cancellation of the visa, the applicant said he would not have a future. He advised that in order to get a good job, he needs to get a degree. The applicant declared he is supported by funds from India but has also worked as a school cleaner and in food deliveries. The applicant was asked whether there was anyone else in Australia who would be affected by his visa being cancelled. He said it would affect his wife, who is also from India but studying independently, and his child. The applicant requested an opportunity to continue his studies in Australia.

11. 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

12. 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?

13. 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).

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

15. The applicant did not dispute that there were grounds for cancelling his student visa as he had not been enrolled from 6 April to 18 November 2016. Prior to this the applicant has been enrolled prior to these dates but ceased his attendance with the education provider and his enrolment was cancelled. 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

16. 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’.

    ·     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

17. The applicant came to Australia as the holder of a Subclass 573 Student Visa which was granted on 26 November 2013 and was valid until 21 September 2017. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

18. The applicant gave evidence that he came to Australia to study an ELICOS course followed by a Diploma and Bachelor of Business. He said that before going on to the Bachelor degree he was studying a Diploma of Business but had to change colleges and enrolled in a Diploma of Management instead. The applicant submitted evidence to indicate he had completed the Diploma of Management however he did not commence a Bachelor degree.

19. The applicant said he wanted to stay in Australia to complete a degree in order to get a good job. He did not provide details of plans for the future or why it was necessary for him to obtain a Bachelor degree. While the applicant may wish to continue studying, the Tribunal considers that without a particular purpose, this is not a sufficiently compelling reason.

20. The applicant advised he has a wife and child in Australia. The applicant’s wife is also an Indian citizen, who it was submitted, is studying independently of him and holds her own visa. If the applicant’s visa is cancelled, his wife may decide to return to India with the applicant, or continue her studies before returning to her home country. That is a matter for the parties themselves to decide. In summary, the Tribunal considers the applicant has not demonstrated a powerful or convincing reason for staying in Australia and is not satisfied the applicant has a compelling need to remain.

    ·     the extent of compliance with visa conditions

21. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

22. The applicant provided evidence to the Department regarding hardship that may result from his visa being cancelled. He indicated only that if the visa was cancelled he would have no future and it was necessary to obtain a degree in order to get a good job. The Tribunal affords some weight in the applicant’s favour in this regard.

23. According to the applicant, he has a wife and child in Australia who will be affected by his visa cancellation. The applicant gave evidence that his wife is studying on her own student visa. The applicant did not specify what hardship in particular would result and as already stated, whether the applicant’s wife continues her studies in Australia is a matter for them to decide.

    ·     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

24. The applicant provided evidence to the Tribunal about the circumstances in which the grounds for cancellation arose. He explained that he had suffered a back complaint and was advised to go back to India for treatment. The applicant was prescribed medication but also had to be admitted to hospital. He claimed he had informed his education provider about his condition and was told it was “ok”. He was away from Australia from 5 May to 7 July 2016 and declared that on his return, his back was swollen, there was an open wound which meant he could barely walk and he also developed a bladder disease. The applicant said he had attended a doctor’s surgery in Australia after arriving back from India but he did not provide evidence to the Tribunal in support of medical attention here once he returned.

25. The applicant submitted medical evidence to the Tribunal from India regarding his treatment. This consisted of a report from Kartar Laboratory dated 4 March 2016; four receipts from Simran Medicos dated 5 March and 28 March 2018 plus undated; a medical certificate from SGL Charitable Hospital dated 25 May 2016 for inpatient care from 12 to 14 May 2016. The certificate advises rest from 15 May to 13 June 2016. The Tribunal notes the applicant had provided evidence to the Department from Dr Zaw Oo dated 1 April 2016 stating the applicant was unable to study from 1 to 29 April 2016. The applicant told the Tribunal he had been advised by his college in a phone call that he should stay with his parents while he was being treated in India.

26. The Tribunal accepts the applicant suffered from a medical condition for a period of two to two and a half months during 2016 and that he received treatment for it. However, the applicant was not enrolled for 7 months that year without adequate explanation or independent evidence in relation to the whole period. The Tribunal does not accept his education provider would give a verbal indication that it was ok for the applicant not to attend his course while he was being treated for an illness and then cancel his enrolment. The Tribunal does not consider the grounds for cancellation arose due to factors that were entirely beyond the applicant’s control. It was his responsibility to make proper arrangements for compassionate leave due to illness and to recommence studying afterwards. Having considered the evidence available, the Tribunal considers that in the circumstances, the visa should be cancelled.

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

27. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

29. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not to be cancelled.

    ·     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

30. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

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

31. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

32. The Tribunal took into account the fact that the applicant re-enrolled to study an Advanced Diploma of Leadership and Management on 18 November 2016 but this appears to have occurred in response to the Department’s Notice of Intention to Consider Cancellation rather than for genuine reasons.

33. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal is satisfied there are certain aspects in the applicant’s case that weigh in his favour, on balance, the Tribunal is satisfied that the considerations weigh heavily against the applicant.

34. The Tribunal concludes that the ground for cancellation in s.116(1)(b) exists and having regard to all the relevant circumstances, as discussed above, the Tribunal considers the visa should be cancelled.

    DECISION

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

    Wendy Banfield
    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.