Toor (Migration)

[2018] AATA 4821

Toor (Migration) [2018] AATA 4821 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parminder Singh Toor

CASE NUMBER:  1702138

HOME AFFAIRS REFERENCE(S):           BCC2016/4280612

MEMBER:Brendan Darcy

DATE AND TIME OF ORAL DECISION:   25 September 2018 at 12.44 PM

DATE OF WRITTEN DECISION:              26 September 2018

PLACE OF DECISION:  Melbourne

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

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – breach of enrolment conditions – unsatisfactory course progress – gap in course enrolments – no career plan – applicant’s circumstances – family issues – health problems –credibility issues – evasive answers to Tribunal’s questions – decision under review affirmed

Practice and procedure – extension of time granted

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360, 425
Migration Regulations 1994 (Cth), Schedule 8 conditions 8202, 8615

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the delegate found the applicant had breached condition 8202 and the grounds for cancelling the visa outweighed the grounds for not cancelling. 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, an Indian national, appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages via teleconference. Present throughout part of the hearing was the applicant’s spouse as an observer.

4. 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

5. 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?

6. 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).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. The applicant was granted a subclass 573 (Higher Education) student visa on 23 January 2014 and arrived in Australia on 31 January 2014.

9. According to their decision record, Provider Registration and International Student Management System (PRISMS) indicate the applicant was enrolled in English for Academic Purposes Bachelor of Business which ceased on 14 April 2014; a Certificate IV in Business which ceased on 5 June 2014; a Diploma of Business which ceased on 5 June 2015 and Bachelor of Business which ceased on 27 July 2015. The applicant claimed he was enrolled in the Union Institute of Language in Cairns, in northern regional Queensland.  He did not complete any of this course work.

10. According to the applicant he moved to Melbourne where he enrolled in General English course, which he completed, a Certificate III in Light Vehicle Mechanical Technology and a Diploma of Management. The PRISMS record indicates and a Diploma of Management which was completed on 21 August 2016 and a Certificate III in Light Vehicle Mechanical Technology which ceased due to unsatisfactory course progress on 12 August 2015.

11. Otherwise the applicant was enrolled various vocational coursework none of which were completed. This included: a Certificate IV in Business which cease on 5 June 2014; a Diploma of Business on 5 June 2014; a Certificate III in Light Vehicle Mechanical Technology which ceased due to unsatisfactory course progress on 12 August 2015; and a Certificate IV in Business which ceased on 1 September 2015.

12. On 25 January 2017, the applicant had been enrolled in Certificates III and IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology at the Acumen Institute of Further Education.

13. The Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant on 16 January 2017 and was invited to respond in writing. The applicant requested an extension to respond which was granted and extended to 31 January 2017.

14. In the applicant’s written response to the NOICC dated 31 January 2017, he did not dispute there were grounds for the cancellation. The NOICC included copies of Confirmation of Enrolments (CoE) that he was enrolled in vocational educational coursework since 25 January 2017.

15. The delegate proceeded to cancel the applicant’s student visa on 1 February 2017.

16. The applicant applied to have the cancellation decision reviewed by the Tribunal on 7 February 2017. Attached to the review application was a copy of the delegate’s decision record.

17. While the applicant submitted the same documents as he had to the Department as part of his NOICC the day prior to the scheduled hearing, he did not submit any new information and did formally respond to the invitation to attend a hearing or request any witnesses. 

18. During the scheduled hearing, the applicant reiterated that there were grounds for the visa’s cancellation as he admitted he conceded that he breached condition 8202.

19. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 27 July 2015 and the date of cancellation – about eighteen months. Accordingly, the applicant has not complied with condition 8202(2).

20. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) did arise.

    Consideration of the discretion to cancel the visa

21. 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.

22. 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).

23. The applicant provided a copy of the delegate’s decision to the Tribunal at the time of the review applicant on 13 August 2016.

24. The applicant did not attend the scheduled hearing and has relied on the reasons he provided in his written response to the validly issued NOICC.

25. The Tribunal discussed the applicant’s circumstances with him during the scheduled hearing and discussed these documents he submitted to the Tribunal:

    ·A written statement addressed to the Department’s case officer;

    ·Psychologist’s report dated 13 January 2018;

    ·CoEs that the applicant enrolled in vocational coursework at Acumen Institute dated 25 January 2017;

    ·An academic certificate indicating the applicant complete a General English course of a five week period between June 20414 and July 2018; 

    ·A copy of the applicant’s medical certificate indicating he has Type 2 Diabetes;

    ·A copy of an Indian court record indicating the applicant’s family was involved in a property dispute dated 29 September 2016;

    ·A death certificate indicating the applicant’s paternal grandfather passed away on 4 August 2014 (a copy of the original with a translation);

    ·A death certificate indicating the applicant’s paternal grandmother passed away on 11 January 2016 (a copy of the original with a translation).

26. During the hearing, it was noted that applicant only completed a short English language course and a Diploma of Management. The applicant claimed he was unaware of completing the Diploma as reflected in the PRISMS record.

27. No post hearing submission was required at the end of the scheduled hearing. No further evidence or submissions have been provided to the Tribunal regarding the cancellation of the applicant’s student visa up to and including at the time of writing his decision.

    Credibility findings

28. The Tribunal has significant credibility concerns about the applicant for the following reasons:

29. Throughout the hearing, the applicant was evasive and hesitant in his responses. Repeatedly the applicant wanted to raise his mental health status and the psychologists’ report dated 13 January 2017. As mentioned below, the Tribunal accepts this evidence as credible regarding his mental health symptoms but not so severe as to amount to significant hardship if the visa remains cancelled. The report attributed the applicant’s mental health problems on his dysfunctional family’ a property dispute; his father’s medical conditions; relationship difficulties; his non-enrolment; and a lack of academic progress.  It is also accepted the applicant undertook counselling sessions between December 2015 and January 2017.  As discussed in the hearing, the Tribunal is not required to accept the stated reasons for these mental health symptoms.[1] The Tribunal has a number of reasons to doubt the some of the specific reasons for his mental health symptoms. The Tribunal noted that the applicant claimed that his father had been hospitalised when he fell into a diabetic coma in the past; however he did not mention his father become blind. The phycologist’s report does not mention any hospitalisation but mentions his fears about his father becoming blind. The Tribunal found this inconsistency troubling and it invited the Tribunal to consider there were other inconsistencies or whether the applicant had fabricated or exaggerated claims.

    [1] In MZXTT v MIAC , a psychiatric report did not just express the proper psychiatric opinion that the applicant suffered from anxiety and depression, but purported to explain why the applicant had not previously raised claims of torture, presupposing the applicant had suffered torture. The Tribunal found the applicant to be unreliable and did not accept he was tortured. The Court found the Tribunal had clearly considered the psychiatric evidence and the decision to reject the expert evidence was reasonable and open on the evidence and after giving the applicant ample opportunity to supplement his case

30. The applicant provided oral evidence that he was not enrolled in a Bachelor’s or Master’s degree because when he moved to Melbourne he was unable to locate a Bachelor’s degree in which to enrol because his IETLS test indicating his English language capacity was too low. He added that that the package of course work he had been enrolled in Cairns he had an IELTS test result of 5.0. He claimed he was very lonely and homesick in Cairns and moved to Melbourne. The applicant then elaborated that the migration agent or lawyer were to blame for his non-enrolment in a Bachelor’s degree. The Tribunal pointed out that the applicant did not mention anything about the quality of advice or assistance from any third party such as a migration agent in his written NOICC response. The applicant did not respond when this put to him.  Again, this inconsistent evidence further invited the Tribunal to consider the applicant was not providing reliable evidence.

31. The applicant also provide oral evidence that due to a property dispute following the passing of his paternal grandfather that he was unable to afford tuition fees. He added that his father and mother were required to take responsibility for four of his nieces and that one or more of those nieces were trying to take the property away from his immediate family. He mentioned that two were minor and the other two were adults. He argued that in combination with his father’s diabetes and the medical expenses, this litigation has been expensive. This roughly aligns with the applicant’s poorly articulated written reasons. The applicant also provided medical evidence that his father suffered from Type 2 Diabetes and the passing of his grandfather. The Tribunal accepts many of these aspects to be the case; however it does not accept the specific reasons the applicant was not in compliance with 8202. That is because this was applicant had claimed that once these issues had been resolved in September 2016, he remained unenrolled based on his own oral admissions that he was unable to gain admission into a Bachelor’s degree due to his English language being too low and not because, as he had written, due to poor course progress.

32. The applicant’s credibility was further undermined when he orally claimed that he had a career ambition to own his own degree. He claimed that he enrolled in a Certificate III in Light Vehicle Mechanical Technology when he arrived in Melbourne. However, as PRISMS indicates the applicant completed a Diploma in Management but not this Certificate III which is directly related to qualifying as a mechanic. In fact, the same record indicates the enrolment ceased due to unsatisfactory course progress, indicating the applicant had little interest in automotive mechanics. The applicant unpersuasively argued that he did have a genuine career goal as a mechanic who owned and operated his own business because he had enrolled in Certificates III and IV in Light Vehicle Mechanical Technology and a Diploma in Automotive Technology at Acumen College. However, these enrolments took place on 25 January 2017 after the issuing of the NOICC, indicating he enrolled in this

33. The applicant was asked if he wanted to become a mechanic he had the option of applying for a Subclass 572 visa for vocational education, instead of a Bachelor of Business. After asking the applicant as many as five times the same question as he did not appear to understand it, the applicant eventually said ‘they did it’ but did not elaborate as to who was ‘they’. He later responded that he wanted to do business and later wanted to be a mechanic. As discussed in the hearing, this changed testimony and evasive approach to answering reasonable questions indicated to the Tribunal that he did not have any strong career ambitions at all and that the purpose of travelling to Australia was unrelated to study purposes.

34. When cumulatively considering the applicant’s inconsistent, incoherent, evasive and hesitant responses, the Tribunal finds that the applicant has significantly exaggerated a number of explanations as to the only credible reason he was not enrolled in a Bachelor’s degree – that he was unable to obtain a Confirmation of Enrolment in a Bachelor’s degree because he was not eligible to do so after cancelling his original enrolment and because his English language capacity was too low.  All the other explanations may have elements of being credible. For instance, the Tribunal accepts the applicant experienced mental health symptoms. However, the adverse credibility concerns about the applicant’s reliability as a witness are so deep it does not accept these other explanations to be credible or critical in understanding his non-compliance or his lack of academic progress, It does not accept the applicant’s father’s ongoing health problems was a credible explanation. It does not accept that he became unenrolled due to homesickness or loneliness. While it accepts the death of his grandparents had some emotional impact, it does not accept it was the reason for his non-compliance or the extent of that non-compliance.  The Tribunal moreover does not accept a property dispute (which occurred and is not unusual in India) led to difficulties with tuition fees or was a credible explanation for his non-enrolment or lack of academic activity. It does not accept he was provided any incorrect advice from an agent, which the Tribunal finds to be a blatant fabrication.  It does not accept the applicant’s lack of academic progress was significantly attributable to his mental health problems.   

35. In summary, the Tribunal finds that the applicant lacks considerable credibility that provided significantly exaggerated and fabricated evidence to augment his otherwise weak and unconvincing case not to have the visa cancelled. This overall adverse credibility finding has informed the Tribunal’s further findings.

    The purpose of the visa holder’s travel to and stay in Australia

36. According to the decision record and his own testimony at the scheduled hearing that he has studied very little since arriving in Australia. In the context of the Tribunal’s credibility findings above, it does not accept the applicant’s claims that he wanted to remain in Australia to become a mechanic who would own or operate his own business. It does not accept he originally arrived to complete a business degree and then changed his vocational focus. While completing a degree might enhance his career prospects and impress his parents, there is no credible evidence to suggest that the applicant’s original intention for his travel to and stay in Australia was for the purpose of study. While there is some academic achievement, the progress is limited. There is insufficient evidence that he applicant will be a genuine student if this visa was not to remain cancelled.

37. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives this little weight in favour of the visa not being cancelled.

    The extent of compliance with visa conditions

38. The delegate decision does not record any information about further non-compliance.

39. During the hearing, the Tribunal noted that the applicant had not been in compliance with condition 8202 by not being registered in a Bachelor’s or Master’s degree for as much as eighteen months. The Tribunal considers this to be a significant amount of time. Accordingly, it places some amount of weight on this in favour of the visa remaining cancelled.

40. The Tribunal also noted in the hearing that he had been in breach of condition 8615 (This condition requires student visa holders to remain continuously enrolled in the offered enrolment at the time of the visa being granted). The applicant was knowingly aware of this circumstance at the time of visa application when he acknowledged that he was unable to enrol in Bachelor’s degree in Melbourne as his IELTS results were lower that the result required for his enrolment for an educational provider in regional Queensland. The Tribunal gives this factor some weight towards the visa being cancelled.

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

41. The applicant claimed that the hardships he would face included not being about to start a mechanics business as he had planned and that the standards of education were higher in Australia.  As discussed in the hearing, it was open to him to apply to study for a mechanics qualifications in India and that he did not require a Bachelor’s degree to do that. He also has a diploma in management to present his family and prospective employers. As this does not amount to significant hardship, the Tribunal places only a little weight on this factor in favour of the visa not remaining cancelled.

42. The applicant further argued that his father’s health condition, Type 2 Diabetes, would deteriorate if his visa remains cancelled. The Tribunal pointed out that the disease was an ongoing but treatable physical matter whose deterioration was not connected with his poor academic achievement; to which the applicant responded that he feared the emotional impact on his father. While the applicant will confront the emotional hardship in disappointing his parents, the Tribunal does not accept this hardship will be significant or that it would trigger any further deterioration of the applicant’s father as a diabetic. Accordingly, the Tribunal gives this specific hardship consideration only a little weight towards the visa not being cancelled.

1. It is also noted that the applicant has a number of mental health symptoms. He claimed that he has been treated for them through counselling and prescribed medicine in the past. While the Tribunal accepts he does have mental health conditions, the Tribunal does not assess them to be severe. As discussed in the hearing, the submitted psychologist’s report claimed the applicant lacks motivation caused by depressed mood and generalised anxiety. It explicitly states he does not have suicide ideation and no hallucinations. It states that he has low self-esteem and depression with episodes of depressed mood with melancholic features. The report states the applicant’s prognosis is good given he accepted counselling as a treatment. It also predicts the negative prognosis if the applicant is unable to obtain a Confirmation of Enrolment.  It can be reasonably anticipated some deterioration in the applicant’s mental health symptoms if the visa is not granted and that he is away from his spouse.  While serious, these mental health challenges are treatable, both here in Australia and India. While the Tribunal does not accept that if the applicant returns to India ‘empty handed’ that these mental health symptoms are so significant or severe that it will amount to significant emotional or psychological hardship if the visa remains cancelled.

   The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

2. Based on the overall adverse credibility findings above, the Tribunal does not accept the applicant had any extenuating or exceptional circumstances beyond the applicant’s control that led to the grounds for cancellation. As stated above,  when cumulatively considering the applicant’s inconsistent, incoherent, evasive and hesitant responses, the Tribunal finds that the applicant has significantly exaggerated a number of explanations as to the only credible reason he was not enrolled in a Bachelor’s degree – that he was unable to obtain a Confirmation of Enrolment in a Bachelor’s degree because he was not eligible to do so after cancelling his original enrolment and because his English language capacity was too low. Even in combination with the other explanations, the Tribunal does not accept these reasonably explain his non-compliance or the degree of this non-compliance.

3. Based on this finding, the Tribunal gives the evidence very little weight towards the visa not being cancelled.

   Past and present conduct of the visa holder towards the Department

4. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some little weight in his favour.

   If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

5. Not relevant.

   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

6. During the hearing, the applicant stated that he married his wife and that both of their respective parents agreed to the marriage. They do not have any children between them. It was noted that his wife does not have a permanent visa and therefore unable to sponsor him, either onshore or offshore for a partner visa. The applicant argued that if he is required to leave Australia and will not be able to return for three or more years and that being separated from his wife would be difficult. The Tribunal enquired if his wife would be able to return to India with him; to which he replied that it would be unreasonable to undermine her own career ambitions as she wanted to remain in Australia.  

7. The Tribunal has sympathy for this argument and it accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and that he may have to depart or be detained or even forcibly returned, if he is an unlawful non-citizen. Accordingly the Tribunal gives this factor some notable weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

8. As the applicant married his spouse who is an Indian national since his arrival to Australia and there are no dependents attached to his cancelled student visa, there is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Whether any international obligations would be breached as a result of the cancellation

9. During the scheduled hearing, the Tribunal discussed whether the applicant faced any harm in returning to India. He said that while the land dispute issue had been resolved by September 2016, he could not be sure about the issue posing a problem in the future. Based on the applicant’s overall lack of credibility, it does not accept he faces even a remote chance of harm arising from this claim. There is no credible evidence before the Tribunal that this is relevant and it gives this factor no weight.

   Any other relevant considerations

10. At times during the hearing, the applicant was emotional and provided oral evidence through tears. It is noted the applicant was provided with a short adjournment to gather his emotions. The Tribunal also notes he was afforded many times the opportunity to answer questions which were often repeated because he provided evasive answers not related to the questions put to him or avoid ‘yes’ and ‘no’ answers. The hearing was unusually lenghty due so many questions having to be repeated through an interpreter. He did not object to the interpreter at any time throughout the hearing. At the end of the hearing, there was no requirement for additional documents. Although the Tribunal put questions or information to the applicant in a robust manner, the Tribunal is satisfied the applicant was provided with a meaningful opportunity to give evidence and present arguments as required by s.360 and s.425 of the Act.

    Conclusion

11. In this matter, the Tribunal found the applicant to have been a unreliable witness lacking in considerable credibility. As outlined above, the applicant was frequently evasive oral evidence and provided inconsistent accounts between his written and his oral claims as to the reasons he had breached condition 8202. Indeed, the applicant demonstrated a thorough contempt towards the Tribunal and the undertaking to tell the Tribunal the truth.

12. The fact remains the applicant was in breach of condition 8202 for a significant period of time. His claimed extenuating circumstances for this breach were considerably undermined by the applicant’s extensive lack of credibility. There is no credible evidence before the Tribunal that applicant is a genuine student, either as a student visa holder in the past or the present, or that he will uphold the conditions imposed on him if he were to be granted a student visa.

13. In the context of the applicant’s extensive lack of credibility, that the Tribunal finds that there were many more factors in favour of the visa remaining cancelled outweighing those factors in favour of the visa not remain cancelled.

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

    DECISION

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

    Brendan Darcy
    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.