Sukhchan Singh (Migration)

Sukhchan Singh (Migration) [2018] AATA 5681 (7 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhchan Singh
CASE NUMBER:  1703101
HOME AFFAIRS REFERENCE(S):           BCC2016/3844424
MEMBER:Helen Kroger
DATE:7 November 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 07 November 2018 at 4:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – not enrolled in registered course – business studies – breach in excess of two years – mental health issues – medical problems – decision under review affirmed

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

CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 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).
The applicant, Mr Singh, an Indian national, was granted a visa on the 28 June 2014 for the purposes of studying in Australia.
On the 18 January 2017, Mr Singh was sent a Notice of Intention to Consider Cancellation of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant responded with a request for an extension to respond to the NOICC, given an extension of five days, that took the required response date to the 6 February 2017. The applicant provided an explanatory statement on the 6 February to the Department.
The delegate cancelled the visa on the basis that 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.
The applicant appeared before the Tribunal on 7 November 2018 to give evidence and present arguments. Mr Singh was not represented by a lawyer or 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
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?
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).
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 18 January 2017 and provided a written submission in response on the 6 February 2017.
At 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 he has not been enrolled in a registered course of study since 27 May 2015. This was not disputed by the applicant during the hearing who provided an explanation as to why he didn’t continue his studies.
On the evidence before the Tribunal, namely the applicant’s admission during the hearing and the explanatory statement sent to Department on the 6 February 2017, the Tribunal finds that the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
As the applicant has not failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The Tribunal has considered the applicant’s evidence provided at the hearing along with the medical documentation provided to the Tribunal immediately prior to the commencement of the hearing.
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
The applicant is an Indian national who is 24 years of age. He first travelled to Australia in July 2014 to study for a Diploma of Business, Advanced Diploma of Business and a Bachelor of Business (Information System Management). He submitted during the hearing that a number of factors contributed to him not continuing his studies, and in fact lead to him dropping out of a registered course.
Mr Singh explained that he was suffering from homesickness, that he was anxious and depressed, that he was suffering from possible kidney stones and that his girlfriend broke up with him. He indicated that the cumulative effect of these issues ensured his inability to concentrate and focus on his study, that he stayed home most of the time, often staying in bed, and that for a period of time he started drinking and smoking heavily. Mr Singh provided medical certificates and consultation notes, dated from February 2015 through to January 2016, including a medical certificate for the period 16 July 2015 to 16 January 2016. The consultation notes consistently reference the applicant being depressed, homesick and sad.
Mr Singh told the Tribunal that his father has driven a truck for a considerable time and that he wished to complete a business degree so that he can go home and set up a ‘transport company’. He explained that an Australian degree was “better” than an Indian degree, providing greater job opportunities and prospects.
According to the delegate’s decision record provided to the Tribunal by the applicant, that references PRISM enrolment details, Victoria University reported the cancellation of his Higher Education Sector course, Bachelor of Business (Information Systems Management) on 27 May 2015 and he has not been enrolled in a registered course of study since that date. A deferral was approved by his education provider from May 2015 to May 2016 due to compassionate or compelling circumstances. The applicant completed the initial Diploma of Business. The applicant has not disputed the delegate’s account of his enrolment record that indicates that he was enrolled for a period of eleven months and informed the Tribunal that he had not disclosed the status of his visa with anyone at home, including his parents.
The Tribunal has carefully considered all the evidence before it and gives some weight in favour of the applicant given he did complete the Diploma of Business in his first year in Australia. The Tribunal has also had regard to the medical certificates and consultation notes provided for the period from February 2015 to January 2016 that indicates consistent and continuing health issues. Whilst the Tribunal has also considered Mr Singh’s endeavour to secure a 12 month course deferral from May 2015 to May 2016, it has considered the absence of any demonstrated effort to consider non enrolment after this period, or consideration of returning home to address his personal health issues.
The Tribunal has given some weight to the personal and health issues experienced by the applicant whilst considering the extent that home sickness may have contributed to these issues.
Given the significance of the period of time when the applicant was not enrolled in a registered course of study (since May 2015) and has made no attempt to contact the Department to advise them of the change to his personal circumstances, nor sought to address his circumstances by consulting more widely, even with his parents, 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
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)
The applicant explained at hearing the significance of the opportunity to study in Australia, the value accorded to an Australian degree in India compared to a local degree, the better employment opportunities that would arise and accordingly the better economic opportunities that would arise.
He also explained that he had not shared his current visa situation with his family due to the emotional distress it would cause him and his parents and the possible reaction to the news of his visa cancellation. He mentioned that it would give him an opportunity to be a “millionaire”, a comment that indicates the financial opportunity that he sees an Australian degree would provide. He indicated that many of his health issues were related to being away from home, being homesick and not having the capacity to deal with personal issues, such as his girlfriend breaking up with him.
Mr Singh submitted at hearing that his parents have paid the course fees, and indicated that a visa cancellation would be a disappointment in terms of not having achieved anything with the money already invested.
The Tribunal has considered the consequences to the applicant should his visa be cancelled and appreciates that such an outcome would cause some emotional duress to the applicant and his immediate family, particularly his parents. It also has regard to the status of an Australian qualification in India and has considered the educational opportunities available in India, along with the corresponding employment opportunities. Whilst the Tribunal appreciates that the above will cause some duress for the applicant, it gives more significant weight to the significance of the breach, and the time that has elapsed since the applicant was enrolled in May 2015, than the hardship potentially caused to the applicant and any distress to his family.
Circumstances in which ground of cancellation arose
As outlined above, the applicant submitted both at hearing and by way of written submission, the personal circumstances around the time when he cancelled his studies. His full written statement to the Tribunal is extracted below :
Thank you for the extra time for me to respond. In relation to the email about my non-enrollment, I want to explain my circumstances which has prevented me from being able to study properly.
I arrived in Australia 22nd of July 2014 to study Diploma followed by Advanced Diploma and Bachelors Degree in Business (Information Systems Management).
Since coming to Australia, my health suffered and I thus had to defer my course from March 2015. I had gotten approval from my College for the deferral as I had provided sufficient evidence of my medical condition.
Since coming to Australia, I have had multiple medical issues. I suffered from Kidney stone and related complications. I have also become a victim of depression and this has also hampered my ability to focus on my studies. Thus I was not able to continue my study as per my eCOE..
I have realized that I need to ensure that my career is back on track. I was inquiring with some providers about the possibility of me re-enrolling.for my studies when I received this email asking to comment on my study gap.
I understand that things have not gone accordingly to plan. However, I want to rectify the situation by ensuring that I am fully focused on my new studies. I plan to enroll for Bachelors of Business and continue my study if I am permitted to do so. I would also like to bring it to your attention that I have completed my Diploma of Business as scheduled and feel like I am now mentally stable and after visiting my doctor, I have been advised that my medical condition has improved and I also feel energized.
I feel like finally, I will be able to achieve the dream that brought me here to Australia.
I admit that there has been a fault on my part too. However, it was due to my depression and recurring medical condition which led to me not being enrolled for a period of time. I request that the officer allow me on last opportunity so I could enrol on a Bachelors Degree and return to India after successfully completing it. l have the necessary funds to enrol for the course. However, I want to follow your instruction on this matter. I will anxiously wait for your reply. Hoping for a positive reply.
At hearing, Mr Singh expanded on this, referring to his medical condition, including a reference to suffering kidney stones. When questioned about this, he disclosed that this had not been confirmed as he could not afford a referral to a specialist and that the medication taken at the time were pain killers that made him sleepy. He supplied the Doctor’s consultation notes for the period that consistently indicated that he was sad, depressed, iron deficient and anxious. He also submitted that he resorted to alcohol and cigarettes, something that he claims to have subsequently given up. He explained to the Tribunal that he told his parents that he wanted to return to India at one stage, and that they had strongly encouraged him to stay to complete his study. He has not told his parents of the status of his visa and explained that he use to speak to them about his health issues, with the indication that he has not had a substantive discussion with them for some time.
Mr Singh was pursuing enrolment considerations around the time that he received the NOICC.
The Tribunal has regarded the circumstances of the visa cancellation, the applicant’s submission that he was about to enrol in a course when the NOICC arrived. The Tribunal has given some weight to the medical evidence provided, that indicates that the applicant was suffering from health issues, in particular anxiety, sadness and depression, during the year leading up to the visa cancellation. The Tribunal has also considered what opportunities were available to the applicant to deal with the circumstances at that time, and any communication attempts made in advising the education provider and the Department of his changed circumstances. The Tribunal gives some weight to his contact with the education provider to defer his course but provides significant weight to the fact that he made no effort to contact the Department to seek their advice on the changed circumstances. There is nothing before the Tribunal to demonstrate that he has considered going home with the intent of addressing his health related issues, to aid his recovery and emotional and physical state.
Accordingly, the Tribunal gives more weight to the significance of the breach and the period of time that has elapsed since the applicant has enrolled then the personal and health related issues as identified above. 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
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
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
There is nothing before the Tribunal to indicate there are international obligations to consider.
Any other relevant matters
The Tribunal notes that the applicant responded to the NOICC, after being given the maximum five day extension allowable for a response and provided the explanatory statement that is included above. The applicant seeks to continue his studies in Australia with the intention of returning to India with an Australian qualification, that he claims will enable him to get a better job. He also spoke of his interest in setting up a transport company, as his father has driven a truck for some decades. Mr Singh supports himself in Australia, working 2-3 days each week, claiming that he stays home for the rest of the week. His parents previously paid for his course fees and he claims that they will resume the payment of course fees, should he be allowed to re-enrol. Whilst he claims that he has not spoken to his parents about the cancelled visa, there is nothing to indicate that he has had a discussion with his parents about future course fees in order to confirm that they would pay, nor is there anything before the Tribunal to indicate what the applicant’s parents understand about his migration or student status in Australia.
Whilst the Tribunal is not unsympathetic with the applicant’s personal circumstances and the family issues he will need to deal with upon returning to India, the Tribunal considers the breach to be 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. As such, the Tribunal finds that the length and significance of the breach outweighs the applicant’s explanations.
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 two years is significant in the context of a student’s study period and the fact that he would be well aware of the expectations placed on him, along with the fact that he made no attempt to contact the Department, and indeed, made no attempt to return home. As such, considering the circumstances as outlined by the applicant during the hearing, the Tribunal concludes that the visa should be cancelled.
DECISION
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.

[2018] AATA 5681

7 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Breach

Jurisdiction

Statutory Construction