Singh (Migration)

[2018] AATA 5410

Singh (Migration) [2018] AATA 5410 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabhjot Singh

CASE NUMBER:  1703219

HOME AFFAIRS REFERENCE(S):           BCC2016/3648960

MEMBER:Helen Kroger

DATE:12 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 November 2018 at 3:18pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in registered course not maintained – accounting – business – mental health issues – significant breach – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 February 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 12 June 2014 for the purposes of studying in Australia.

3. On the 27 January 2017, Mr Singh was sent a Notice of Intention to Consider Cancellation of her student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa.  The delegate did not receive a response to the NOICC at the time of its decision. A copy of an explanatory statement from the applicant, dated 2 February 2017, was provided to the Tribunal, although there is no evidence before the Tribunal to indicate that this was transmitted to the delegate before the notification of the decision to cancel the visa on the 16 February 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 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 7 November 2018 to give evidence and present arguments. The applicant was not represented by a migration agent.

7. 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

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.

11. 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 27 January 2017 and there is no evidence to indicate the Department received a response indicating the reasons why the visa should be cancelled, within the requested timeframe. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that indicated that his enrolment in a registered course of study was cancelled in February 2016. This was not disputed by the applicant during the hearing who provided an explanation as to why he didn’t continue his studies.

12. On the evidence before the Tribunal, namely the applicant’s admission during the hearing and the explanatory statement, dated 2 February 2017, that was submitted immediately prior to the 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

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

14. 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’.

15. The Tribunal has considered the applicant’s evidence provided at hearing along with the documentation provided to the Tribunal immediately before the conduct of the hearing.

16. 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

17. Mr Singh is an Indian national, 23 years of age. He was granted a student visit  for the purposes of studying business in Australia. Mr Singh enrolled in a Certificate in Accounting, Diploma and an Advanced Diploma in Accounting and a Bachelor of Business (Accounting). He explained at hearing that he found the Accounting subjects too difficult to study, and consulted a migration agent, who advised that he should transfer into a commercial cookery course that would provide the necessary qualification to later move to a business course. He also claims that the agent said it would be easier to get “PR”.

18. During this time, he became depressed, suffered anxiety and stress that lead to him staying at home all day and becoming isolated. He attended Positive Solutions Pychological Services on 13 July 2015, requesting a report to support his release from Zenith Business Academy in order to transfer to a Commercial Cookery course.  He enrolled at the South Pacific Institute in a cookery course, claiming the agent said it would lead to a business course, but became disenchanted as it was not what he wanted to do. He claims that he attended a meeting with the ‘head’ of South Pacific Institute to collect his certificate and was asked for $4000, to complete assignments so that he could qualify.  The applicant explained that this was in addition to fees already paid, and that he did not have the money. He also claims the Institute were not ethical in the way in which they set the assignments and provided sites where they could get the correct responses.

19. Following this request, the applicant did not continue with the course and his COE was cancelled. The delegate references PRISMS in his/her decision, that indicates that Mr Singh has not been enrolled in a registered course of study since 21 February 2016. At hearing, Mr Singh did not dispute this, and claims that he has been suffering depression and anxiety since that time and during the time he was studying cookery. He also explained that it was the first time that he had been away from his family, and the responsibility he feels towards his family in accomplishing something whilst in Australia.

20. The Tribunal has carefully considered all the evidence before it and gives some weight in favour of the applicant that he did commence his studies in accounting upon his arrival in Australia along with his claims about the difficulties in undertaking the subjects, his challenges coping with a different educational structure to that in India and his wish to pursue business studies that will enable him to achieve greater economic opportunities. Not withstanding the above, and given the significance of the period of time when the applicant was not enrolled in a registered course of study and did not attempt to contact the Department to advise them of his changed circumstances, the Tribunal finds that these considerations outweigh any weight given in favour of not cancelling the applicant’s visa.

    The extent of compliance with visa conditions

21. 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)

22. The applicant explained at hearing that he had borrowed a significant sum of money to finance his move to Australia, indicating this was in the vicinity of $35-40,000.  He claims that he borrowed this money from ‘loan sharks’ and suggested that they will ‘kill him’ should he return to India and not be able to repay them. The Tribunal canvassed this suggestion at length and the applicant claims that he has no capacity to repay them and that if he were not to return, then he would not have to meet them.  He did not provide a plausible explanation of what he would do when he returned to India, given that he is currently residing in Australia on a bridging visa. There is no real indication how he believes that he can repay this debt, stressing that he did not wish to return to India as they would “kill him”. The Tribunal asked the applicant how he would finance any future course fees should that need arise, and he claims that a ‘cousin’ would assist with the fees. He indicated that a ‘cousin’ would be prepared to do this, but not prepared to assist with his debts, as the cousin wouldn’t derive any benefit from assisting with the debt but could through him qualifying. He was not clear in his explanation how that would happen and who the ‘cousin’ is. He submitted that he has a number of friends and family in Australia.

23. The Tribunal has given careful regard to this evidence relating to his financial circumstances  and whilst it has sympathy with the applicant ‘s concern about returning to negotiate with ‘loan sharks’, it does not find the applicant consistent in his claims that he has the capacity to deal with this at a later stage, whilst paying for any possible future course fees given his financial circumstances to date. The applicant claims that he did not have $4000 to pay for his cookery course and now claims that a ‘cousin’ would loan him the necessary funds.  At the same time he has indicted that he has substantial debts outstanding in India that he would need to deal with should he return without providing an explanation as to how staying in Australia assists him to raise or earn the money to repay the ‘loan sharks’ rather, providing an opportunity for him to avoid them.  At the same time he stressed that his friends and a lot of family lived here who would be prepared to assist, and yet there is no evidence before the Tribunal that they have been able or had any capacity to assist to date.

24. The applicant provided to the Tribunal a copy of the psychological assessment undertaken on 13 July 2015, to support his application from the accounting course to the commercial cookery course. The report identifies the psychological health of the applicant at that time, citing a depressive mood, sense of failure, anxiety insomnia, appetite and weight loss along with the concern about disappointing his parents. At hearing he discussed his health, how his study experience affected his state of mind, and how he ‘wants to be something’ and ‘make something of himself’. The Tribunal finds that the applicant is genuine in his wish to make ‘something of himself’ and recognises that should the visa be cancelled, that it will cause some level of distress to the applicant and his parents. Whilst the Tribunal accepts the findings from the psychological report, it has regard to the applicant’s actions following the request for further course fees and the absence of any action to advise the Department of any concerns nor any consideration to return home in light of his health.

25. Whilst the Tribunal has some sympathy with the applicant regarding his emotional and financial circumstances, and appreciates that a cancellation would cause some emotional duress to the applicant and his immediate family, along with the need for him to address his financial circumstances upon his return to India, the Tribunal gives more weight to the significance of the breach, and the time that has elapsed since the applicant was enrolled, than the hardship potentially caused to the applicant.

    Circumstances in which ground of cancellation arose

26. The applicant submitted at hearing his difficulties in studying accounting, explaining that the education structure and expectations were very different to that in India and different to what he had anticipated. His academic struggles exacerbated emotional issues incurred from being away from home and upon advice from an agent, transferred into a commercial cookery class, that was described as being easy to complete.  It was pointed out to him that a lot of students did it, that it was much easier and also easier to get a “PR” .The applicant was asked for $4000 to complete his certificate towards the end of the course, an amount he claims he didn’t have whilst also complaining about the nature of the course, explaining that he wasn’t interested in it and only enrolled upon the advice of the agent.  He stressed that it was a course he was not enjoying and was only doing upon the agent’s advice, in order to get into a business course. His COE was cancelled by South Pacific Institute after he didn’t pay the requested $4000 and the delegate was advised. The applicant claims that he was not advised by the education provider that his enrolment was cancelled and that they had an obligation to do so.  These circumstances served to have a cumulative and debilitating affect on the state of mind and health of the applicant.

27. He submitted that he supports himself, working 2-3 days per week, either car washing or cleaning, that covers his cost of living, but not sufficient to cover the cost of future course fees.

28. The Tribunal has carefully considered all the above circumstances leading up to the cancellation of the visa. The Tribunal has sympathy with the applicant’s criticism of the education provider, and his claims that there was a verbal request for more money, along with suggestions that answers for assignments were accessible for students for them to copy in order to complete the course, along with his observations about the advice he received from the migration agent. Whilst some of this evidence raises issues of credibility regarding these parties, it does not obviate the applicant’s responsibility in ensuring his compliance with the requirements attached to his student visa. The applicant indicated that he made no attempt to contact the Department to advise them of his changed circumstance, made no subsequent attempt to contact his education provider nor did he provide any evidence to indicate that he had considered a return home in an endeavour to restore his health and state of mind. This has been considered in the context of the applicant’s evidence that he didn’t like the cookery course, that he was only doing it because that was the agent’s advice, not withstanding his comments that he had a number of friends and family in Australia. The Tribunal finds that it is not unreasonable for the applicant to consider and assess the advice provided to him in regard to his own personal circumstances.

29. The Tribunal has considered the cumulative weight of the circumstances as set above and 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.

    Past and present behaviour of the visa holder towards the department

30. 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

31. 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

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

    Any other relevant matters

33. Whilst the Tribunal is not unsympathetic to the applicant’s wish to continue his studies so that he could “make something of himself”, there is no evidence before the Tribunal that the applicant has sought to advise the Department of his changed circumstances or notified his parents or immediate family of this current visa circumstances.  The applicant has explained his concerns returning to India and facing the “loan sharks” he has borrowed money from and the consequences of that meeting, however he has given no indication of how he intends to address his personal financial circumstances, other than through avoiding them by not returning to India. The inference in the evidence submitted is that the applicant wishes to stay in Australia as long as possible and he has not provided any observations on his return to India, whenever that may be, and how he plans to repay the debt.

34. Subject to the requirements set out in the Act, s.48(1)(b)(ii) regarding further visa applications, a cancellation of his visa does not prevent him from re applying at a later stage or have an application for said visa made on his behalf.

35. The Tribunal has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions on the visa, he made no attempt to inform the Department or rectify the situation and the Tribunal places significant weight on the length of the breach. The fact that he found his chosen course of accounting difficult which contributed to his state of anxiety, depression and poor health does not explain why he dropped out of studying and has been working on a part time basis for the last 2 years and 8 months.

36. The Tribunal has considered the applicant’s statements however the breach is significant. 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 2 years and 8 months is significant in the context of a student’s study period and the fact that he would be well aware of the expectations placed upon him, along with the fact that he made no attempt to contact the Department, and made no attempt to go home.

37. As such, considering the circumstances as outlined by the applicant during the hearing, the Tribunal concludes that the visa should be cancelled.

    DECISION

38. 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.