SINGH (Migration)

SINGH (Migration) [2018] AATA 2618 (28 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Simranjit SINGH
CASE NUMBER:  1617830
DIBP REFERENCE(S):  BCC2016/2943086
MEMBER:Rachel Westaway
DATE:28 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 June 2018 at 7:53pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Enrolment in a registered course – Physical injuries from a car accident and falling off a ladder – No evidence of medical reports to explain 12 month gap in study – Personal circumstances –Applicant’s father unwell – Able to complete studies in India – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 October 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.1161)(b) on the basis that the applicant had not complied with a condition of 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.
The applicant appeared before the Tribunal 15 November 2017 to give evidence and present arguments; the hearing was adjourned and completed on 6 April 2018. The Tribunal hearings were conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
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)(b) on the basis that the applicant had not complied with a condition of the visa. 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?
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202(2)(a) states that the visa holder meets the requirements if they are enrolled in a registered course. The applicant was sent a Notice of Intention to Consider Cancellation on 20 September 2016 and he did not dispute the grounds. The applicant confirmed he had not been enrolled in a registered course since 18 September 2015. The applicant was not enrolled in a registered course for over twelve months.
The applicant confirmed to the Tribunal at hearing that he was not enrolled in a registered course of study since September 2015 for over twelve months. However he requested that weight be given to his circumstances and that the Tribunal uses its discretion and not cancel his visa.
Given the applicant confirmed that he was not enrolled in a registered course of study for over twelve months, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
On 4 October 2016 the applicant provided the Department with a response to the NOICC. The submission is summarised as follows:
·The applicant’s reasons for coming to Australia were to study English and then pursue IT studies to enhance his career;
·The applicant is a hardworking student but suffered a shoulder and arm injury lending to his inability to attend classes. The applicant sought treatment for his injury and advised his college of the circumstances;
·The applicant was later involved in a car accident, causing him to suffer physically and mentally which further contributed to the disruption of his studies;
·The applicant’s father suffered a major medical condition requiring surgery. This affected the applicant’s access to financial support for his studies and he did not share his circumstances for fear of creating additional stress on his family;
·The applicant does not want to leave Australia without achieving his intended education and he has enrolled in a series of courses. He has spoken with his family and they promised financial support once his father is well.
On 26 October 2016 the applicant submitted a copy of his passport biodata page, a medical certificate dated 14 April 2015 relating to his shoulder and arm injury, a police report dated 2 December 2015, two medical appointment receipts dated 31 January 2016 and 18 February 2016, and a copy of the delegate’s decision to cancel his student visa.
The Tribunal received a submission from the applicant’s representative dated 14 November 2017 providing reasons why the applicant’s visa should not be cancelled. The submission is summarised as follows:
·The applicant arrived in Australia in 2014 and he was enrolled in an English course and Diploma of Information Technology leading to a Bachelor of Information Technology;
·The applicant completed his English course and was attempting his Diploma;
·In March 2015 the applicant suffered a shoulder and arm injury causing ongoing pain. Consequently, he was not able to attend classes or concentrate on study. In April 2015 the applicant consulted a doctor and informed his education provider of the situation. The applicant was recovering at the time his COE was cancelled in September 2015;
·The applicant intended to continue his studies in March however in December 2015 he was involved in a car accident, disturbing him mentally and physically. Due to his medical condition he could not study and missed the March enrolment date. On 31 January 2016 and 18 February 2016, the applicant underwent surgery;
·The applicant’s father underwent surgery in August 2016. His father’s health issues caused him stress and his father’s health was the priority for the entire family;
·The applicant received the NOICC in September 2016 and he was not able to inform his family about the situation because of the additional stress that this would cause;
·The applicant could not gain admission to a Bachelor degree directly due to his English. He enrolled in a Certificate III, IV and Diploma of IT at the Victorian Institute of Culinary Arts and Technology (VICAT), however he was not able to continue his study once his visa was cancelled;
·The applicant was young when he moved to Australia, it was his first time away from his family and he was in a new country. The applicant is also an introvert and not open to everyone;
·The submission explained that the main reasons the applicant could not study were his medical condition, which was beyond his control, and his father’s health issues.
The submission to the Tribunal dated 14 November 2017 was accompanied by the following documents:
·Certificate of completion of English for Academic Purposes 1, issued by the Academies Australasia Polytechnic, dated 12 November 2014;
·A teaching schedule for the Diploma of Information Technology, issued by the Academies Australasia Polytechnic, covering the period 12 January 2015 to 20 March 2015;
·Academic transcript for the Diploma of Information Technology, issued by the Academies Australasia Polytechnic, dated 9 January 2015;
·A notice by the Academies Australasia Polytechnic containing enrolment advice;
·A police report concerning wilful damage/injure property, dated 2 December 2015;
·A medical certificate dated 14 April 2015 concerning the applicant’s shoulder and arm injury;
·Two receipts for medical appointments, dated 31 January 2016 and 18 February 2016;
·Hardev Singh’s medical test results, dated 30 August 2016 and 24 September 2016, and hospital discharge card and discharge summary;
·COE (84FCBC77) for the Diploma of Information Technology Networking, commencing 18 June 2018;
·COE (84FCB788) for the Certificate III in Information, Digital Media and Technology, commencing 17 October 2016;
·COE (84FCBB96) for the Certificate IV in Information Technology Networking, commencing 19 June 2017;
·A medical certificate for the period 6 November 2017 to 10 November 2017, a copy of which was previously provided to the Tribunal in support of the applicant’s hearing postponement request.
The information provided above and 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
The applicant appeared before the Tribunal and confirmed he arrived in Australia on 28 May 2014. He completed his English course and he commenced his Diploma before his visa was cancelled.
The applicant stated he is 25 years of age. His parents are alive and he has one older brother. The applicant described his family circumstances as follows:
·His brother studied a Bachelor of Computer Education and works in Dubai. His brother’s studies were completed in India;
·His father owns a grocery shop and employs one person;
·His mother works in a dairy farm. People assist her and she looks after the animals.
In relation to his education history, the applicant informed the Tribunal that he completed a Diploma in IT in India prior to coming to Australia. He explained that he chose to study in Australia because of the reputation of Australian education and because he will be able to find a job.
At the resumed hearing the applicant discussed his present circumstances. He said his father is alive, however following an accident he had to get three plates inserted in his legs and under the hip and his family are aware that his visa has been cancelled. The applicant stated that if his visa was cancelled he would return home and if his visa is not cancelled he would enrol in a new course. The applicant said he would like to continue with IT studies, noting that IT interests him because his brother studied IT and works in Dubai at present.
The applicant informed the Tribunal that his brother studied his IT course in India. The Tribunal asked the applicant why he could not study in India and he responded that if he was to study in India the qualification would not have as much value as a qualification obtained in Australia.
In the applicant’s response to the NOICC dated 4 October 2016 he stated he does not want to return home without his qualifications.
The Tribunal gives some weight to the fact that the applicant commenced his studies on arrival into Australia and completed his English course. He has outlined the reasons why he wants to obtain a qualification from an Australian education provider. Notwithstanding this, the Tribunal is mindful that the applicant was not enrolled in a registered course of study for a significant period of time. The Tribunal also notes that the applicant wants to remain in Australia as he does not want to return without a qualification. In spite of demonstrating that he came to Australia to study and stating that he wants to complete his studies and find a job in IT, the Tribunal does not accept that these reasons outweigh the issue at hand, that the applicant has a significant beach associated with his visa condition.
The extent of compliance with visa conditions
At the hearing the Tribunal explained to the applicant the significance of a twelve month period during which he was not enrolled in a registered course. There is nothing before the Tribunal to suggest the applicant has breached any other conditions. He said that he was committed to his studies completed his English course. The Tribunal gives some weight to this but it does not outweigh the severity of the breach.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant said that a cancellation will cause him emotional hardship. He said that he wants to remain in Australia and study so that he can obtain employment back home. He said the qualifications are much better in Australia..
The Tribunal accepts that a cancellation will cause some hardship on the applicant and his family. Given the significant amount of money required to save in order to pay for an education, a cancellation for the applicant means he is unable to complete his qualification in Australia. The Tribunal also appreciates that it is disappointing. The Tribunal accepts that the applicant would not be able to continue to obtain a diploma in the short to medium term in Australia and that an Australian qualification is considered highly in India. However the Tribunal does not accept that the applicant would not be able to complete IT studies in India and nor does it accept that the applicant would not be able to obtain employment. Given this, the Tribunal does not accept that the considerations put forward by the applicant outweigh the severity of the breach in order not to cancel the visa.
Circumstances in which ground of cancellation arose.
The applicant provided a response to the NOICC dated 4 October 2016 in which he stated he is a hard working student however he suffered an injury to his arms and shoulder and was not able to attend classes. He claims he is an introvert and elected to stay at home and recover. He said he advised his Education provider. He also had a car accident which affected his ability to study both mentally and physically and he does not want to return home without his qualifications.
The applicant informed the Tribunal of the following:
·It was his right arm and shoulder which was affected;
·He gave a medical certificate to the school;
·He explained he should have requested a deferment;
·He supplied his college with a doctor’s certificate
The applicant stated he completed his ELICOS and enrolled in his IT course, and when he fell he thought he could enrol in the next semester. He explained that when he discovered he could not enrol, he stayed at home.
The Tribunal explained that the applicant could have returned home to India and applied to re-enrol in his course of study at a later date. The applicant stated that he thought he could enrol in the next semester however the next issues arose.
The applicant informed the Tribunal he would have returned to India, however, his father had an accident and if he returned he felt he would be a burden on him. The Tribunal explained that minimal weight can be given to this as the purpose of his time in Australia is to study and not alleviate stress on members of the applicant’s family. The applicant stated that his father needed the money for medical expenses. He said he appreciates it was a gamble. He said that his intention to study is clear because he had already enrolled in a course before his visa was cancelled.
The applicant provided the Tribunal with the following material:
·A police report dated 2 December 2015 for wilful damage and injury property;
·A doctor’s letter dated 14 April 2015 outlining the applicant fell off a ladder and injured his right shoulder and arm and has constant pain and has not been able to attend classes since March. It was a report of the applicant’s account and concluded on examination he is tender in the right forearm and his shoulder has improved;
·An invoice dated 31 January 2016 and 18 February 2016 for medical consultations.
The applicant advised the Tribunal at hearing that he was hurt on 11 March 2015 and he did not know how to approach a doctor in Australia. He said his friend told him he must go to a doctor. In April his doctor confirmed the injury and said he must rest. He stated he advised his course provider. The applicant also had a car accident and his injury flared up, resulting in him being unable to attend school in December 2015.
The applicant said he arrived in Australia on 28 May 2014. He completed his English course and he went on to commence his Diploma, however, he did not complete his Diploma. The applicant reiterated claims that in March 2015 he had problems, in particular that he fell and hurt his arm and shoulders. He said he fell out of the shower and after two days his injury became painful. The applicant repeated he had no idea where to go and how to find a doctor.
The applicant’s explanation as to how he obtained his injury was not clear as his doctor’s certificate stated that he fell off a ladder.
The Tribunal queried the applicant and asked how he alleviated the pain given it was so bad that he was unable to study. He claimed he took Nurofen only and his friend eventually took him to the doctors. The applicant said he did not know how to go to a doctor. The Tribunal explained it was highly implausible that he was capable of relocating to Australia and studying, yet he could not Google a doctor and organise a consultation regarding his hurt arm.
The applicant’s friend told him to go to the doctor and he said that he needs a medical insurance card. The Tribunal explained to the applicant that he has health insurance as a requirement of his student visa. The Tribunal also asked the applicant if he had a doctor’s certificate which explained why he was unable to attend and enrol in a course for a period of twelve months. The applicant said he was given a certificate for two weeks by the doctor, and he was frustrated, and could not concentrate, and thought he would wait until March 2016 to continue his study.
The Tribunal reiterated that it is implausible that the applicant could come to Australia from India, graduate, attend a course and settle here, and yet be unable to find a doctor or attend a medical clinic.
Tribunal explained that it is difficult to accept the applicant went without medical attention because he did not know where to go, yet he had medical insurance, and therefore it seems illogical that he did not seek treatment.
The Tribunal stated there is no evidence before it in terms of medical reports which show why he was unable to be in a registered course of study for 12 months. The Tribunal asked the applicant if he had any medical certificates or other evidence indicating he could not attend studies for 12 months. The applicant responded that he was told to rest for two weeks. The Tribunal said that this is reasonable, but not to be enrolled in a registered course for 12 months until he is caught is unreasonable. The applicant replied that he was frustrated after two weeks and he thought he would commence his studies again in March 2016.
The Tribunal raised the following issues with the applicant:
·It requires strong evidence and a timeline, including medical certificates, of the events which happened;
·This review involves consideration of any other factors that will assist the tribunal in using its discretion and the applicant needs to help the Tribunal understand why he was not enrolled in a registered course when the hearing resumes;
·The information provided to the Tribunal is not clear or compelling

The Tribunal adjourned the hearing and stated that it wished to obtain more evidence from the applicant at the next hearing. The resumed was proposed to be rescheduled in December 2017.
In relation to the police report provided, the Tribunal asked the applicant at the resumed hearing about the first incident and why it had interrupted his studies. The applicant said when the accident occurred he was scared, and the pain started again, and the doctor said he needed more rest. The applicant explained it was a car accident and he was parking and someone hit him. The accident occurred in St Albans and the other person was not hurt. The car was damaged; however the insurance covered the cost of the repairs. The applicant stated that he required 2 to 3 weeks to recover and he was unable to go to school.
The applicant gave further evidence regarding the incident where he fell off the ladder. He said that the ladder incident occurred before the car accident. He stated that he needed at least two months off. He did not know which doctor to go to and where to go. The applicant stated that treatment at hospital can be very expensive. However the Tribunal again asked if he was aware of his health insurance and he confirmed he had medical insurance as it is mandatory. He said it rested with spending money and his father needed the money more. He said his decision was based on humanitarian grounds and the love of his father.
The applicant informed the Tribunal that he is happy to send his father’s medical information. The Tribunal responded that the information is not needed because it accepts the applicant’s father was unwell.
He said that the condition – he breached for those reasons. It was a humanitarian level. If he saw that his father was dying he would and could not allow that to happen.
The Tribunal has considered the claims made by the applicant. Whilst illness is outside of the applicant’s control, the tribunal does not accept as plausible that the applicant could not pay his enrolment as his father was unwell and needed the money for medical expenses. The requirements of a student visa require the applicant to have the money in advance to ensure the duration of the visa holders stay is covered. Given this, the Tribunal gives no weight to this explanation.
The Tribunal has considered the applicant’s statement that he injured himself by falling off a ladder. However the Tribunal is dubious as to the severity of the injury given the applicant could not recall how he injured himself. Furthermore, the Tribunal relies on the doctor’s certificate which gave the applicant two weeks off school and the remainder of the applicant’s absence is not accounted for. The Tribunal gives minimal weight to the applicant’s injury because there is insufficient evidence to support such a significant absence in his attendance from school.
The Tribunal has also considered the car accident in which the applicant claims he was involved in. Again the Tribunal gives this minimal weight given there is no evidence to suggest any injuries sustained by the accident required such a significant period of time to be taken from class attendance.
Considering the circumstances individually and as a whole in regards to how the breach occurred, the tribunal accepts them and the limited evidence put forward by the applicant but does not accept that individually or cumulatively they prevented the applicant from attending school for such a significant period of time.
Past and present conduct of the visa holder towards the department
The Tribunal acknowledges that the applicant has responded to all requests for information. However it is also mindful of the contradictory evidence the applicant has provided. The Tribunal asked the applicant why he told the Department he fell from a ladder and the Tribunal he fell from the shower. The applicant stated that he came out of the shower and went down stairs and that how he fell. The means in which the applicant injured himself is of limited consequence but left the tribunal with concerns about the severity of the applicant’s injury and hence the credibility of his claims. The applicant’s explanation is not convincing and is convoluted. However the Tribunal is prepared to accept the doctor’s certificate and this does indicate that the applicant did suffer an injury. So whilst there are reasons for some absences from school, and the applicant has responded in a timely manner to all requests by the department and Tribunal, his general conduct would be expected to be positive. The Tribunal gives this no weight in light of the significance of the breach.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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
If the applicant’s visa is cancelled, he will be given a time limited period in which he may make plans to leave Australia and he will be limited in his ability to apply for another visa. The applicant has not raised concerns in regards to this. The applicant is not currently in detention and it appears unlikely that he will be detained if the cancellation occurs. The Tribunal therefore gives this minimal weight.
whether there would be consequential cancellations under s.140
The applicant has no partner is Australia and no one associated with the visa.
Whether any international obligations would be breached as a result of the cancellation
There is nothing before the Tribunal to suggest the applicant has applied for protection or that the Tribunal should consider this.
Any other relevant matters
Before closing the hearing the Tribunal asked the applicant if there is anything else he wished to be considered and he said he has submitted everything.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Rachel Westaway
Senior Member

[2018] AATA 2618

28 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction