SOMAL (Migration)

[2019] AATA 4684

SOMAL (Migration) [2019] AATA 4684 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurkeerat Singh SOMAL

CASE NUMBER:  1613850

DIBP REFERENCE(S):  BCC2016/2438542

MEMBER:Rachel Westaway

DATE:28 October 2019

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 October 2019 at 9:24am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – unsatisfactory attendance – failure to seek assistance from the University – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 August 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).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 5 June 2015. This was a fourteen-month period in which the applicant was allegedly not enrolled in a registered course of study. The delegate went on to consider that the factors in favour of cancellation outweighed those against and cancelled 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.

3. The applicant appeared before the Tribunal on 20 March 2017 to give evidence and present arguments. A second hearing was held on 15 March 2018 as the Member originally constituted the matter had left the Tribunal. The Tribunal has had regard to the evidence provided at both hearings in making this decision as well as written material on the Department file and the Tribunal file.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended both hearings.

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 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). 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?

   s.116(1)(b) - non-compliance with conditions

7. 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 was attached to the applicant’s visa. Specifically, 8202(2)(a) requires the holder is enrolled in a registered course.

8. In applying for review of the decision, the applicant provided the Tribunal with a copy of the delegate’s decision[1]. It outlined that the Provider Registration and International Student Management System (PRISMS) indicated that the applicant was not enrolled for fourteen months in a registered course of study since 5 June 2015.

   [1] Tribunal file ff:1-6

9. The applicant responded to the Department’s Notice of Intention to Consider Cancellation on 10 August 2016 by email. The applicant stated that he broke his arm in May 2015 and had severe fractures. He could not attend University and it took four months to recover and he was stressed and had no one to take care of him. He stated he did not know what to do however he has since enrolled in Holmesglen Institute and would like to continue studying. The applicant did not dispute his absence and non-enrolment.

10. The applicant supplied the Tribunal with a submission dated 20 March 2018. He provided reasons why he came to Australia to study stating he wanted to use the qualifications he was to gain to set up his own business in the future and that an Australian education is considered highly in India. He outlined the accident affecting his arm resulting in missed classes from May 2015 to June 2015. He said that he provided his medical certificate to the University but his enrolment was cancelled on 4 June 2015 due to his non-attendance.

11. He stated that he was new to Australia, living with friends and was in ‘acute depression’ due to loneliness. He claims he was unable to commence study. When he realised he breached a condition on his visa he tried to enrol but it was too late.

12. He claims to have adhered to all other conditions. He claims that he will experience financial hardship because he has paid $9600 to UTS and over $25,000 in living expenses without ever attaining qualifications in Australia. He stated his father is a farmer and has worked hard to enable him to study and he will be devastated and not fund any further studies.

13. He provided medical records dated 11 May 2015 which was a referral from the Emergency Department of Royal Hobart Hospital to the Orthopaedic Clinic. He supplied copies of x-ray results which diagnosed no fracture, dislocation or other abnormality of his left elbow. His spine x-ray findings were also presented and indicated no fractures. The summary report[2] stated he has the ability to reach full extension of the elbow and 120 degrees of flexion and advised he should maintain non-weight bearing for five weeks and continue with motion exercises so he does not become stiff at the elbow.

    [2] Ibid f:33

14. The applicant provided the same submission at the second hearing as well as a letter from the University of Tasmania stating his attendance was unsatisfactory and his attendance rate was 53.5%.

15. At hearing the applicant did not dispute that his Certificate of Enrolment (COE) was cancelled due to his unsatisfactory attendance. Given his fourteen month period of non-enrolment was not challenged, 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

16. 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’.

    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 explained that he said he came to Australia to gain qualifications which would lead to a good job in India when he returned.  He was enrolled in the University of Tasmania to study a foundation course and then a Bachelor of Business.

18. The Tribunal accepts that the applicant came to Australia for the purposes of studying. It notes that the applicant did attend some classes as he had an attendance of 53.5% for Foundations Studies which ran from 23 February 2015 to 20 November 2015. The Tribunal gives some weight to this in favour of the applicant and not cancelling the visa.

    the extent of compliance with visa conditions

19. The applicant has explained that he has adhered to all other conditions of his visa. Notwithstanding this, the Tribunal expects that visa holders adhere to the conditions on their visa and as such gives this factor minimal weight in not cancelling the visa.

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

20. The applicant stated that he will face financial hardship as will his parents if he doesn’t complete his course. He outlined that he has paid $9600 to the university and has spent $25,000 in living expenses over 2 years and he has not completed his education.  He said his father is a farmer who has worked hard to send him to Australia and study and he held high hopes for him and he will be devastated.  The applicant said that a cancellation will be the end of his academic life.

21. He confirmed that he has told his mother and father about the situation and his father doesn’t want him to be a farmer and his mother is angry because they paid for his time in Australia and he isn’t studying. He said if the visa is cancelled, he would struggle to get enrolled in another course in India. The Tribunal asked the applicant what he would do if his visa remained cancelled and he said that he could work with his father but he knows his father is angry about his situation and will tell him not to come home. The applicant said that he predominantly speaks with his mother.

22. The Tribunal appreciates that with a visa cancellation some financial hardship will be experienced and that the applicant and his family will be disappointed in the opportunity which has been removed. The Tribunal also accepts that the applicant’s family will be upset with him because of the situation he is in and the missed opportunity of an educational qualification from Australia. The Tribunal does not accept that the applicant could not continue studying in India or consider an online degree from an international university whilst still remaining in India.

23. In considering the hardships outlined by the applicant, the extent of the breach is significant and such hardships would be expected following a visa cancellation. As such, the Tribunal gives this factor only some weight in favour of the applicant.

    Circumstances in which ground for cancellation arose

24. The Tribunal accepts the evidence put forward by the applicant that he came to Australia with the express intention of studying until he hurt his arm in May 2015. The Tribunal notes that the applicant said this caused him to miss lecturers for 2-3 weeks between May and June 2015 and he had exams on 6 June 2015 and that he approached his course provider with medical certificates but they had already cancelled his COE on 4 June 2015. The Tribunal has considered the applicant’s claim that it took him a few months to recover and he had acute depression, was new to Australia and felt insecure and lonely and demoralised. The Tribunal has reviewed the medical records supplied by the applicant. It acknowledges that these records indicate that the applicant did hurt his arm, however there was no evidence provided which support the applicant’s claim that he could not go to lectures or study.

25. The evidence put forward from Royal Hobart Hospital dated 11 May 2015 indicate he fell onto a step and hit his left elbow hard and that there was swelling and he could not rotate his forearm or extend his elbow. The medical records outline the treatment which includes ice, elevating his elbow on a pillow and taking pain relief, namely paracetamol and codeine ibrofen. It confirmed he had x-rays of his spine and no fracture was detected and he was discharged and referred to an osteopath. Outpatient clinical notes dated 18 May 2015 outline there was a possible radial head fracture and he was required to continue with exercises so he does not become stiff.  He was to be reviewed in 5 weeks with new x-rays. Whilst acknowledging the applicant did sustain an injury, the medical evidence put forward did not confirm that the applicant was unable to attend lectures and the applicant did not provide the Tribunal with any evidence to suggest he attempted to contact his course provider to seek special consideration or to defer the term.

26. The Tribunal is aware that the University would have been able to provide assistance in note taking or recorded lectures if required and the applicant provided no evidence to support his inability to return to university for several weeks. The Tribunal accepts that the applicant may have felt helpless and alone and possibly depressed. However, there is no evidence to suggest the applicant sought assistance from the university or a doctor or counsellor in this period to assist him in returning to studies and focusing on his course. Furthermore, if the applicant became so incapacitated that he could not study, he could have returned home until he was able to resume his studies and then he could return to Australia.

27. The Tribunal accepts that the applicant sustained an injury, however the Tribunal does not accept that it was so debilitating as to prevent him from attending university to the degree his attendance was 53.5% and his enrolment was cancelled. Furthermore, it does not accept, nor did the applicant explain why he did not leave Australia rather than remain in Australia on a student visa for more than a year without being in a registered course of study.

28. He explained he is 22 years of age and he completed year 12 at school in India however it was not a proper school and he stated it was different in its structure and this made it harder for him to settle into his studies. Whilst the tribunal appreciates this, it further strengthens the Tribunal’s view that the applicant should have considered registration and attendance to be a priority so he could continue to learn and become accustomed to his new environment.

29. The Tribunal asked the applicant to clarify his attendance given the course ran from 23 February 2015 to 20 November 2015 and he claims to have taken three weeks off school and his enrolment was cancelled. The Tribunal queried how the applicant had a 53.5% attendance if 3 weeks were missed out of 9 months. He said he can’t recall his previous attendance. He stated he could provide assignments.  The Tribunal gave the applicant the opportunity to provide more details about his attendance by Thursday 22 March. The applicant then stated he could not recall the time.

30. He confirmed he received no treatment or support for his claimed depression but rested and lived with his cousins. The Tribunal accepts the applicant may have felt depressed, alone and helpless and that Australia was a new place for him but he could have sought assistance from counsellors at University or his doctor and did not. He was not so incapacitated that this was not a possibility.

31. The circumstances put forward by the applicant do not justify the significance of the breach and were not beyond his control. As such, the Tribunal gives them minimal weight.

    past and present behaviour of the visa holder towards the department

32. There is nothing to suggest the applicant has behaved inappropriately in any dealings with the Tribunal or the department. He has been polite and courteous and has responded to all requests for information. The Tribunal expects that this is how all applicants would behave and gives this minimal weight.

    whether there would be consequential cancellations under s.140

33. There are no secondary applicants and as such the Tribunal gives this no weight.

    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

34. If the visa is cancelled, the applicant will become a non-lawful citizen and his ability to apply for other visas would be limited. He could be detained until he made arrangement to leave the country.

35. Public Interest Criterion 4013 may apply and the applicant may not meet the requirement for certain visas for three years.

36. The Tribunal sees these as natural consequences of the cancellation of a visa and as such assigns not weight to them.

37. 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

38. The applicant has not raised any concerns about returning to India and the tribunal is not aware of any international obligations. The applicant has no children. The Tribunal assigns no weight to these factors.

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

40. this is not applicable to the applicant and as such no weight is attributed to this factor.

41. any other relevant matters.

42. The applicant told the Tribunal that when he was not enrolled in a registered course he stayed at home and read articles. He said he meets new people and helps his cousins. He does outdoor games and reads Punjabi articles that give him positive thoughts and he attends the gym.

43. The Tribunal notes the applicant’s commitment to self-development but places no weight on this. A student visa was granted to the applicant for the sole purpose of studying a registered course which he did not do and was not enrolled in for fourteen months.

44. The Tribunal has considered the factors individually and cumulatively. In spite of the factors put forward by the applicant for not cancelling the visa, the Tribunal gives them limited weight in comparison to the significance of the breach. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

45. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Rachel Westaway
    Senior Member