Singh (Migration)

[2018] AATA 1916

Singh (Migration) [2018] AATA 1916 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sarbjeet Singh

CASE NUMBER:  1706288

DIBP REFERENCE(S):  BCC2017/606032

MEMBER:Fiona Meagher

DATE:28 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 28 February 2018 at 6:04pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Breach of condition 8516 – Continue to meet visa grant requirements – Genuine intention to complete studies – Ceased to be enrolled in a course of study ­– Confused and inconsistent evidence

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2, cl 573.231, 573.223 Schedule 8, Visa condition 8516, 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 March 2017 made by a delegate of the Minister for Immigration 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 under s.116(1)(b) of the Act (condition 8516). 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. A copy of the delegate’s decision was provided with the application for review.

4. The applicant appeared before the Tribunal on 20 February 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. 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 the 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) of the Act (and condition 8516). 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 of the relevant circumstances, which may include matters of government policy

   Does the ground for cancellation exist?

7. The 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 8516 attached to the applicant’s visa. This condition requires that the applicant continue to be a person who would satisfy the primary criteria for the grant of the visa. The primary criteria that are relevant in this circumstance are 573.231 and 573.223(1A), which are both set out in the delegate’s decision.

8. On 7 March 2017 the Department of Immigration and Border Protection sent a Notice of Intention to Consider Cancellation of the applicant’s visa. The applicant responded by his registered migration agent with a number of documents including a “statement of my study progress in Australia and my future plans”, and offer letter of bachelor of business from the applicant’s “main course education provider”, a COE (confirmation of enrolment) certificate IV in commercial cookery, diploma and bachelor of business, a doctor’s certificate for the period of ninth May to 18 May 2016, and the receipt for payment of tuition fees.

9. The document referred to as “statement of my study progress in Australia and my future plans” sets out as follows:

   My client, Sarbjeet Singh has following circumstances which explains his situation under which non-compliance of visa condition has occurred and the reasons explaining why his visa should not be cancelled as he has been maintaining all his current visa conditions.

   Circumstances under which non-compliance are visa condition occurred and how is maintaining his visa conditions:

   1.Sarbjeet came to Australia in early 2016 to study ELICOS leading to his master degree. However according to him while studying ELICOS program, he suffered from mental stress, depression and anxiety in 2016 after coming to Australia because of homesickness. For all these he was not able to cope up with full time Monday to Friday 9 AM to 5 PM ELICOS study structure at PIBT. Due to his medical condition his concentration and academic performance has suffered. He got a doctor’s certificate from 9^th May to 18^th of May 2016 of his sickness.

   2.After that he changed his study plan to study diploma of leadership and management, certificate 4 in commercial cookery leading to bachelor of business and he has current CoEs for all the above courses. According to him he has been fulfil all the requirements of his course and maintaining or the visa condition of his current visa subclass 573.

   3.In his statement he explains all the circumstances that why he was not able to maintain his visa condition after his main course CoE was cancelled in July 2016 and now he is maintaining his visa condition with his main course of study bachelor of business which he will start after completing his certificate 4 in commercial cookery.

   4.In his statement he stated that he is a genuine student and want to comply with all his visa conditions.

   Reasons why visa should not be cancelled

   5.Sarbjeet Singh is a genuine student with good academic ability. He has been successfully studying his diploma of leadership and management. He had also passed class 10 and class 12 with good marks in India and completed his bachelor of science in India.

   6.His statement states that he was suffering from mental stress, depression and anxiety in 2016 after coming to Australia because of homesickness. For all these he was not able to cope up study structure at PIBT. Due to medical condition his concentration and academic performance has suffered. So circumstances were out of his control so his visa should not be cancelled.

   7.He has indicated that he has intention to complete his studies in Australia by enrolling. He started approaching education providers to enrolled himself in bachelor of business program. On 20^th January 2017 he received offer letter and on 13^th  March 2017 he has received confirmation of enrolment from his new education provider in bachelor of business program which is his main course now.

   8.If Sarbjeet Singh student visa is cancelled, he will not be able to complete his studies and will have to return back to his country with incomplete studies. This will affect his future career and he will face financial, psychological and emotional hardships for the rest of his life. His family will also suffer who has spent lots of money and hope on his education in Australia.

   9.According to Sarbjeet he has never breached any law in Australia since he entered Australia on subclass 573 visa.

   10.He will become unlawful noncitizen in Australia and will be subject to detention and removal under section 189 in section 198 of the Migration Act 1958 (Cth) respectively, if his subclass 573 visa is cancelled.

   11.His past and present behaviour has been very cooperative in his dealing with department as he has been trying his best to respond the NOICC to the department within time.

   To conclude, Sarbjeet Singh subclass 573 visa should not be cancelled as he is a bright student and has genuine intention to study in Australia and want to make his future bright. The current situation arose just because he was not co-operated by his education provider to allow him to change his program and provider and study a program which he can complete as per his academic abilities and career plans.

10. Before the hearing the applicant provided further documentation to the Tribunal including correspondence with the American College Australia and the Christian Heritage College, a student achievement report from the Perth Institute of Business and Technology Pty Ltd and an interim statement of results from the New England College Perth. There was also an offer from the Holmes Institute confirmations of enrolment, and a written submission from the applicant which states as follows:

    With due respect I want to tell you about my self since I got student visa.

    I got my visa on 29^th of jan 2016 but my classes with pibt on 1^st of feb 2016. I had not enough time to arrange all things like air ticket etc to come to australia that is why my representative pyramid e services  arranged 1 week extension for me to arrange all my stuff. After that on 6^th of feb I came to australia . due to which I missed my important classes but I tried my best to coverup all my missed classes by taking help from my new friends . Due to missed my important classes I failed my some assignments . After that I felt stress and home sickness . As in india my representative told me that these are very simple classes but these classes are very hard . moreover these classes were for 5 months . unfortunately I failed in my elicos. My sister is my only family in australia . she is living in brisbane . After that I applied for offer letter in holmes college brisbane and I got it . I applied for release letter from ecu and pibt and I met with student welfare members regarding my situation but they refused to give me release letter . Also I provided them my medical certificate that I am not well mentally and physically. After that  I have no other option than take cancellation . i donot want to dis continue my study I told a lawyer to apply my offer letter but I got only for diploma in bussiness management with new england  college .Firstly  the college representative told me that he will apply for c o e to fulfil student visa subclass 573 but after that there was a news come that new subclass is coming 500. I went to number of lawyers to apply my c o e . But every one told me to wait to know about subclass 500. After some time I got admission in american college for cookery which is further interlinked with chc college for bachelor of business . As I want to open my own restaurant in my hometown that skills are very important for me. Firstly my representative forgot to send my recent coe to chc college due to which I did not get my offer letter on time from chc college.  After that I emailed chc college and called them that m waiting for my offer letter then they told me about that your representative have not sent us your previous c o e. then I sent them my recent c o e. On the day when I got a call from immigration on that day I got my offer letter then I paid my c o e fee . chc told me that you will get your c o e within 14 days .After getting my coe my representative pargat boparai replied to immigration with all my c o es , payment receipt for chc college c o e , c oe for bachelor of business. But the immigration representative was not convinced and did not understand my   situation , my future . Also my representative pargat boparai made that response from another person so in that letter there was number of mistakes . after that immigration cancelled my visa  . immigration mentioned that m going to enrol in bachelor of bussiness in july 2018 if you understand  that I tried to get my c o e before getting notice of attention from immigration . due to that I have to change my college from new england to american college as I asked new england college representative to get my main course under 573 but he did not give me any satisfactory response. I put my case before number of representative but m failed over and over. After visa cancellation     I put my case before AAT with the help of immigration lawyer parveen gupta.  When I got my bridging visa e the immigration lady told me that your c o e was not updated to our system . I got my bridging visa with condition no study no work .  I had no way other than to wait for the result of my m r t. My sister,   my family and friends   helped me to survive in australia with money. I told parveen gupta about my case but talk with me very rudely and asking for money . me and my family is already facing to many problems that is why I have not enough courage to ask them about it and get more money. After of all I  called gurpreet singh( New england college representative) to get my progress report from their college that I was a regular student with new england college as the immigration lady told me that in their record there was no c o e update under my name. I faced to many problems since I am  in australia. If I do not get my visa back then my future is ruined and me and my parents will in big trouble. With this letter I am going to provide all my evidences including progress report , medical certificates, c o e’s and results . I hope AAt do right justice with me . It is almost 1 year since I and my family in stress. I want to study here and make my future better. Please take some mercy on me and allow me to study here . so that after going to my home country I can achieve my goal.

11. The Tribunal discussed with the applicant the provisions of condition 8516, and his study history in Australia. The applicant’s evidence was extremely confused and inconsistent. Most questions had to be asked several times, and notwithstanding the presence of an interpreter, the applicant frequently asked for the questions to be repeated, and for clarification.

12. The applicant said that he has still not passed his English test even though he worked very hard. He said that he felt homesick and unwell and did not take care. He said that he missed the beginning of the course because he could not get to Australia earlier, and missed an assignment worth 5%. He then said that he became ill in April 2016, with a high fever and blood in his ears. He referred the Tribunal to a medical certificate in that regard. The Tribunal pointed out to the applicant that the medical certificate the applicant stated that he does not know about dates. He said that his English course finished in April. He said he became ill in either April or May. The applicant told the Tribunal that he started other English courses, but was unable to sit properly on the chair because of a headache. He said that he then decided he wanted to move to Brisbane to be near his sister. He said that he found a shorter ELICOS course of 4 to 5 weeks through Holmes College, but was unable to obtain a release from Perth College because they were not satisfied that there was medical evidence to justify such a release. Thus he was unable to access the opportunity to attend the ELICOS course at Holmes.

13. The applicant then stated that he went to the New England College in Perth which assured him on 1 August 2016 that they would be able to give him a confirmation of enrolment, and then migrating to another college in Brisbane. The applicant’s evidence continued – he stated that in the meantime subclass 500 was introduced and he was told by the head of the New England College and by a lawyer that he should wait to access that subclass. He therefore did not apply for any other visa. The applicant said that he came to Brisbane at the end of November 2016 and undertook a diploma of leadership and management at New England College, in respect of which he said he has passed all of the modules. The applicant said that he then went to a migration agent who referred him to the American College and the Christian Heritage College (which are linked). He said that the American College assured him that they would be able to obtain a 573 visa for him, and the Christian Heritage College told him that they would be able to get him a confirmation of enrolment. In this regard, the applicant said that misrepresentations were made to him by his agent, who was obtaining commission from the American College.

14. The applicant confirmed that he still wishes to obtain admission to the Christian Heritage College to do a bachelor of business. He said that he wishes to go back to India and establish his own business, based on agriculture and cafe and restaurant. He said that his family’s basic income is from agriculture and he wants to invest in restaurants. He said that his previous agent had made him apply for commercial cookery at the American College, and that he has not started that course yet. The applicant said that he would use that course to obtain skills in cooking food. The applicant said that he has an offer letter from the Christian Heritage College to do a bachelor degree in business, and has paid the fees.

15. As stated above, the applicant’s evidence was hard to follow, and it was difficult to obtain a clear chronology in respect of his studies undertaken so far in Australia, and in respect of his future aspirations. In summary, it was difficult to be sure of the applicant’s level of understanding of the history of this matter.

16. The Tribunal discussed the delegate’s decision with the applicant, and confirmed with the applicant that he had ceased to be enrolled in a course of study specified the student higher education since 11 July 2016. The Tribunal noted that the applicant had obtained enrolment for a bachelor of business at the Christian Heritage College on 13 March 2017, after the NOICC was issued to him.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exist. 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 the discretion to cancel the visa

18. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).  ‘General visa cancellation powers’.

    Purpose of travel to and stay in Australia.

20. In considering this factor the Tribunal took into account that, as contained within the delegate’s decision, the applicant arrived in Australia on 6 February 2016 and after being here for only five months withdrew from his higher education sector level course and obtained enrolment to study at the vocational education and training sector level. He only reenrolled in a higher education sector level course, namely a bachelor of business, after he was issued the NOICC on 7 March 2017. In that regard, the delegate’s decision notes that bachelor of business in respect of which he is enrolled does not commence until 19 July 2018, but the applicant’s 573 visa is valid only until 15 September 2018. The Tribunal considers that the applicant’s intention in coming to Australia was not to study in accordance with the conditions of the visa he was granted. The Tribunal places some weight upon this factor in considering whether to exercise its discretion to cancel the visa.

    Extent of compliance with visa conditions

21. The Tribunal notes that the applicant did not comply with condition 8516 attached to the visa. This logically means that he was also in breach of condition 8202(2). The Tribunal is unaware of any other instances of non-compliance with visa conditions. The Tribunal places some weight upon this factor in exercising the discretion to cancel the visa.

    Hardship that may be caused to visa holder and family.

22. The Tribunal asked the applicant about hardship which would be suffered if his visa were to be cancelled. The applicant responded that would mean that there was a big gap in his studies if he does not obtain a visa in Australia. He said that he would be unable to study anywhere else, and therefore would not have potential for a future job. The applicant said that he needed skills from education. The applicant said that he would do an IELTS test again, and that he now can understand everything, and make sure that his assignments are up to the mark, in the context of completing his bachelor’s degree. The applicant also said that his parents will be heard if his visa is cancelled because they have spent a lot of money on him and his studies. He said that if the visa is cancelled he will be unable to study anywhere else because his visa has been rejected by Australia. He said that he had not been advised immediately by his then agent that he could study while on a bridging visa, but has subsequently been advised by another lawyer and someone from the Department that he could have sought study rights during that period.

1. The Tribunal also had regard to the written submissions of the applicant which stated that his future would be ruined and his family in big trouble, and that he and his family would be stressed.

2. The Tribunal accepts that the applicant’s family will be disappointed, as they have invested a “lot of money and hope on his education in Australia”. The Tribunal also accepts that the applicant may need skills from an education in order to obtain employment. However, the Tribunal does not accept that the applicant is unable to study anywhere else. The Tribunal, in considering whether to exercise the discretion, places some limited weight upon the applicant’s family’s disappointment, and expenditure of money which they will not be able to recover, the applicant’s own disappointment, and any potential impact his failure to study successfully in Australia may have on future employment.

   Circumstances in which ground for cancellation arose (extenuating circumstances).

3. The Tribunal has set out above the circumstances in which the ground for cancellation arose, to the extent that it was able to understand it as explained by the applicant. The Tribunal has considered his claims of mental stress, depression and anxiety in 2016 which he says arose because of homesickness. The Tribunal has also considered the applicant’s claim that he became ill in April 2016 with a high fever and blood in his ears. In relation to those claims, the Tribunal has considered the medical certificate which has been provided by the applicant. The Tribunal notes the medical certificate covers only nine days, and potentially does not even cover a period when the applicant was studying. The Tribunal does not consider the medical certificate adequate evidence of the applicant’s mental stress, depression and anxiety, nor does it describe the condition involving high fever and blood in the ears. It simply states that the applicant “is receiving medical treatment and for the period Monday, 9 May 2016 to Wednesday, 18 May 2016 inclusive he will be unfit to continue his usual occupation”.
   
   

4. The Tribunal considers that the applicant may have been home sick and accordingly suffered some mental stress, depression and anxiety. However, based on the medical certificate before it, the Tribunal considers that the extent of such mental stress, depression and anxiety have been overstated. The Tribunal observes that the medical certificate does not suggest that the applicant’s performance prior to 9 May 2016 had been affected, nor does it suggest any impediment to ongoing study after 18 May 2016.

5. The Tribunal has also noted the applicant’s claim that he was unable to attend the beginning of his course because he could not get to Australia in time, and that he missed an assignment worth 5%. The Tribunal considers that the applicant in this regard should have arranged his travel plans in accordance with the needs of his study, or his study to coincide with the grant of the visa, allowing enough time to travel and settle in Australia and that he should not have missed an assignment worth 5%.

6. The Tribunal considered the claims that he was misled by an Indian “representative” and misled and/or refused by a migration agent or agents, or lawyers, and that at least one of the educational institutions with which he dealt was difficult.

7. The Tribunal places some limited weight upon some elements of this factor, namely the claims of mental stress, depression and anxiety which arose from homesickness, and the difficulties he experienced in dealing with  previous migration agents or lawyers or representatives and educational institutions in exercising the discretion to cancel the visa. The Tribunal also accepts that the applicant was unable to continue his usual occupation between 9 May and 18 May 2016, and places some weight upon that factor in considering whether to exercise the discretion to cancel the visa.

   Past and present behaviour towards DIBP.

8. The Tribunal considers that the applicant cooperated with the Department insofar as providing a response to the NOICC, and places some weight upon that factor.

   Whether there are persons in Australia whose visas would be automatically cancelled as a result (under s.140).

9. There is no evidence before the Tribunal that there are any persons in Australia his visa will may be cancelled as a result of the cancellation of the applicant’s visa.

   Mandatory legal consequences.

10. The Tribunal accepts that the cancellation of the applicant’s visa could result in making human unlawful noncitizen and liable to detention under section 189, or removal under section 198 of the Migration Act. The Tribunal places some limited weight upon this factor.

    Whether cancellation may result in breach of any of Australia’s international obligations

11. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa may result in a breach of any of Australia’s international obligations.

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

    DECISION

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

    Fiona Meagher
    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.