Verma (Migration)

[2019] AATA 1509

Verma (Migration) [2019] AATA 1509 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pankaj Verma

CASE NUMBER:  1708522

HOME AFFAIRS REFERENCE(S):           BCC2017/274370

MEMBER:Stephen Witts

DATE:12 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 February 2019 at 9:59am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – maintaining enrolment – limited academic progress – disputed large delay in enrolment – no compelling need to remain in Australia – embarrassment from lack of success – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 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 applicant, Mr Pankaj Verma, a citizen of India, was granted a visa to study in Australia.

3. The delegate cancelled the visa on 29 March 2017 on the basis that the applicant had not maintained enrolment in a registered course and the grounds for cancelling the visa outweigh 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.

4. The applicant appeared before the Tribunal on 6 February 2019 to give evidence and present arguments.

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. 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?

7. 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).

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

9. According to the delegate’s decision record the applicant was not enrolled in a registered course of study between 18 September 2016 and 29 March 2017.

10. The delegate, in its decision of 29 March 2017, noted that the applicant has claimed that he was unable to enrol in a course because his results were delayed for his previous course and that this was not due to any fault of the applicant. The delegate has contended that the applicant did not provide any evidence to substantiate his claims regarding the delay in enrolment to not be his fault. The delegate further noted that there were no records that suggested that the applicant proceeded with his Bachelor of Business course originally due to commence on 20 March 2017. The delegate contended that the applicant was not enrolled in a registered course of study during this period of time and that the applicant did not provide any evidence to substantiate any claims regarding stress or depression that could indicate that he was unable to reenrol even though he was specifically requested to provide supporting evidence in the NOICC.

11. Adopting the procedure of the Act 359AA the Tribunal reviewed the applicant’s study history with him paying particular regard to the applicant’s PRISMS record (delegates file folio 6). The Tribunal asked the applicant if he wished for some additional time to consider this record prior to having a discussion with the Tribunal.

12. The applicant indicated that he was able to have a discussion with the Tribunal regarding his academic record.

13. According to the applicant’s PRISMS record the applicant has been enrolled in the following courses here in Australia:

    a)English Language Programs-Beginner to Advanced finished in 2015

    b)English for Academic Purposes finished in 2015

    c)Diploma of Business (Enterprise) cancelled in 2015

    d)Diploma of Business finished on 18 September 2016

    e)Bachelor of Business cancelled in 2016

14. The Tribunal noted to the applicant that the delegate has contended that the applicant was not enrolled from 18 September 2016, the day the applicant finished his Diploma of Business, until the date of the delegate’s decision, 29 March 2017.

15. The Tribunal had a discussion with the applicant in regards to the circumstances of his study during this period of time. The applicant acknowledged that he was not enrolled to study a registered course between 18 September 2016 and 29 March 2017.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

18. 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’.

19. The Tribunal has considered any submissions provided to the Department and also the evidence taken at hearing and presented to the Tribunal.

20. On 9 March 2017 the delegate provided a Notice Of Intention to Consider Cancellation (NOICC) of Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa under section s116 (Gen Power) of the Migration Act to the applicant.

21. The applicant provided the following response (delegates file folio 18):

    “My name is Pankaj Verma. I am currently on a student visa in Australia and I have got a notification for cancellation of my student visa.

    I can see on the letter that it was issued on 9 March 2017 but due to some reasons I have received it yesterday on 15 March 2017 and as per the letter I must reply to you within five working days. There was a long weekend in Victoria from 11-13 March 2017. I received this letter on 15 March 2017 and I was already shocked and stressed out on what to do.

    My process of enrolment at Stotts College was anyhow ongoing on I was waiting for the letter of offer for my Bachelor of Business course. I completed my diploma course at RGIT in September but due to some reasons they kept my results on hold and when I went and asked them, I was told that no single assessment of mine is submitted. I showed them few of the assessment submission receipt, but the reason they gave me was shocking! I was told that even though you may have submitted the assessment we don’t have it in our records and the lecturer who was checking the assessment had left the college.

    After a lot of arguments and word exchange, I was asked to pay extra $1500 for the reassessment, even after me not being at fault. When I disagreed to the reassessment charges I was told that they will fail me, and they did. I never expected that the institutions in Australia will treat their students this dishearteningly. This whole matter was sorted out in the end of November and the out was not in my favour and I lost it. I wanted to go to student’s ombudsman but realise that I am at risk and approached an education agent for the enrolment and I was advised by Mr Manan Ruparelia from Study Path Consultants that the closest intake available for me is March intake.

    Having a gap on my file, the colleges were being fussy to except me. I am very thankful to Manan sir that he worked a lot harder and helped me getting the offer from Stotts College to study Bachelor of Business course and I am starting the same soon.

    I don’t know whether it is my hard luck or what but unfortunately, I have received my letter of offer within the time frame of the letter I have received from Immigration, which clearly gives a doubtful thought that I have got the letter of offer after getting into trouble and I am not genuine. But the truth is I am here in Australia to study and I have been studying well to. Just that lately I have been suffering from a lot of troubles as mentioned above and that made me sit ideal for two months and made me lose my focus.

    But I assure you that I will be back on track the moment I am out of your radar and I will show you the results of my bachelor studies if I can be given a chance to prove myself.

    I hope to get a last chance to prove my ability and start my studies back.”

22. The applicant also provided a statement to the Tribunal at the beginning of the hearing:

    “Settling down in any country other than India has never been my intention. The mess that I am into, due to my own wrongdoing in my life has been daunting me since the day my visa got cancelled and I have been hoping to correct my mistakes by going to my past which no one can ever. My name is Pankaj Verma and I came to Australia as an international student in March 2015.

    After spending these four years as a criminal in this country, I have got no right to study which I was here for, I have got no right to go to India for visiting my family and have some mental support and having no rights to even work at lease for part-time, all these things have knocked me into a complete different aspect of life and I am really tired of living like this.

    From all the suffering, one thing that I have realised is that one should never visit an agent as they are all selfish and they only think for their own benefit and will manipulate you, miss guide you and give all the false hopes for their benefits. Perhaps, after receiving the cancellation of my student visa, I had decided to lodge my MRT by myself to get safe from any further trap or manipulation.

    The only good thing that has happened to me in last four years is my wife who is a New Zealand citizen and has been supporting me in all my bad times. Can’t write a good and bad as I have almost forgotten that what good times feel like. She has been asking me to move to New Zealand but moving somewhere is not my motive or aim. She has been asking me to move back to India permanently but even that I can’t do as I am stressed for the humiliation that I am going to be facing for not studying a single course successfully in Australia. Every single seconds as my visa is cancelled, I have been thinking of my family who has been asking me to visit them at least once and show the face. But if I go there, what all things they will go through is going to be unbearable for them and for me too.

    The only thing that I can do here is to beg the AAT Department for one last chance and let me study at least one course successfully in Australia and I assure you that I will be back to my loving India happily with my loving wife and will be happily after with my whole family. It’s very unfortunate that the parents of mine who has given birth to an irresponsible kid like me haven’t even been enough lucky to see their daughter-in-law. And the only reason for that is my irresponsible behaviour due to which my student visa got cancelled.

    Beg you to please try putting yourself in my shoes and take the decision for my further visa.”

23. The applicant also provided a marriage certificate with a registration date of 31 October 2017 which demonstrates that he married Ms Fauzia Khan, a New Zealand citizen, at that time. He stated that he was unsure of his wife’s current visa status here in Australia other than she was a New Zealand citizen.

24. At hearing the applicant stated that his wife was working as a manager in a restaurant and supporting him. He stated he was living here as a househusband.

25. The applicant presented as evidence a psychological assessment dated 5 February 2019 written by a registered psychologist Mr Edwin Kleyhans. In this assessment the psychologist stated that the applicant has been suffering from a generalised anxiety disorder with social anxiety features including depression and anxiety which he is suffering from here in Australia which adversely affected his academic performance in Australia at least partially caused by adjustment problems in coming here.

26. At hearing the applicant stated that his non-enrolled status during the period of time under contention was largely caused by the behaviour of his migration agent. The applicant stated that his agent misguided him and did not provide him with correct documents, and also, on at least one occasion, withheld a COE from him.

27. The Tribunal accepts that the applicant may have had communication and relationship problems with his agent that may have led to some confusion about his enrolment status for a period of time. However, it is the student visa holder’s responsibility to ensure that he remains enrolled to study a course here in Australia and progress academically. Although it is acknowledged by the Tribunal that there may have been a problem between the applicant and his migration agent concerning his enrolment at Stott’s College, it is not an acceptable explanation, in itself, for the applicant’s non- enrolled status during this time.

    ·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

28. The applicant stated that he first came here as he wanted to study in Australia. He stated that his father is a retired public servant who wanted him to become a businessman and be employed in his home country. He further stated that his father said that he should engage in international level study.

29. The applicant stated that he completed high school in his home country in 2008 and graduated with a degree in civil architecture in 2011. He stated that he worked as a civil architect in design and plan reading for a few years with a civil construction company, the Shiva Company.

30. He stated that he has a brother and sister who are both married back in his home country as well as his mother and father.

31. When asked by the Tribunal to outline at hearing what his compelling need was to remain here on a student visa the applicant stated that “I came here for a bright future but I know it was my problem but everybody needs advice to have a bright future but my agents were misguided. I want to do my studies and go back to my country”. When pressed by the Tribunal to outline clearly his need to remain here on a student visa the applicant stated that “my parents will be embarrassed if I go home”. It is noted by the Tribunal that the applicant also referred to the stress and humiliation in his written statement of having to go home and face his family. When asked by the Tribunal if his family was aware of his current status here in Australia the applicant stated that his family were aware of his current situation here.

32. The Tribunal finds that the applicant has not put forward a compelling need to remain in Australia on student visas to study for business qualifications. The applicant already has a professional qualification and work experience gained back in his home country in the civil architecture and construction field. The applicant has acknowledged that he could actually have returned home, and could still return home, back to his home country, with his wife, and to his family and do whatever study he needed to engage in a future business career or return to his original core competency in civil architecture. The Tribunal finds that the applicant has not demonstrated a compelling need to stay here in Australia on a student visa.

    ·the extent of compliance with visa conditions

33. The Tribunal has found that the applicant was in breach of his student visa conditions by not maintaining his enrolment in a registered course between 18 September 2016 and 29 March 2017. But there is no evidence to indicate the applicant has breached other conditions.

34. The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period.

35. The Tribunal expects that a visa holder will generally adhere to the conditions of 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)

36. The Tribunal asked the applicant to provide evidence of the degree of hardship that may be caused should the applicant not be able to stay and study here in Australia on a student visa. In particular, the Tribunal noted to the applicant that the applicant had provided a psychological assessment that indicated that he did have a level of anxiety and depression, and asked the applicant to address the Tribunal in regard to what hardship may be caused by having to return home and not remain here on student visas.

37. The applicant responded by reiterating that he would be embarrassed back in his home country with his family by his lack of success here as a student, and in particular the costs that he and his family have incurred supporting him over the last few years here in Australia.

38. When pressed by the Tribunal to provide any other evidence that he would suffer hardship by having to return to his home country the applicant did not provide any other specific evidence other than that stated above.

39. The Tribunal recognises that the applicant may have had a problem here with his studies for a period of time caused by relationship difficulties with his agent. The Tribunal recognises that this may have caused the applicant some difficulties at the time. It is noted by the Tribunal that the applicant has now been here for some years with a mixed study record. The Tribunal is not confident that given his student visa back he would be able to successfully study a registered course and progress academically. It is further noted by the Tribunal that the applicant has reasonable professional qualifications gained back in his home country.

40. The Tribunal acknowledges that the applicant has provided some evidence from a psychologist that he has been suffering from a generalised anxiety disorder. However, the Tribunal finds that this generalised psychological condition would not necessarily be exacerbated by the applicant returning home to his home country. Treatment measures would be available back in his home country with family support and other circumstances consistent with being back in his home environment. He also has acknowledged that he could travel home to his home country with his wife.

41. The Tribunal finds that the applicant has not demonstrated that he would suffer hardship by having to return to his home country and not remain here on student visas. The applicant has already acknowledged that he could return home to his home country with his wife or alternatively travel to New Zealand with her and live there. He also acknowledged that his family were aware of his status here in Australia. The Tribunal finds that the applicant would actually not suffer hardship by not being able to remain here on student visas and having to return to his family in his home country.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The Tribunal notes that the applicant has asserted that Stotts College kept his results on hold and that he therefore had problems maintaining enrolment, colleges were unwilling to accept him, and that he had relationship issues with his migration agent for a period of time. However, taking these issues into account the Tribunal finds that there are no relevant circumstances in this case that could lead to a conclusion that the applicant was not responsible for the cancellation of his visa.

2. The Tribunal therefore finds that there are no grounds for cancellation beyond the visa holder’s control.

   ·past and present behaviour of the visa holder towards the department

3. 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. It is also noted that the applicant did not make any attempt to contact the Department or inform the Department of his visa status prior to the visa cancellation.

   ·whether there would be consequential cancellations under s.140

4. There is no evidence of consequential cancellations under s.140.

   ·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

5. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss.189 and 198, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met

6. It is unlikely however that the visa applicant will 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, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

7. There is nothing before the Tribunal to indicate any international obligations to consider.

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

8. No such considerations are relevant in this case.

   ·any other relevant matters.

9. The applicant gave no other reasons when asked to explain in detail to the Tribunal any other concerns he may have to his general welfare should the visa be cancelled. The Tribunal appreciates an education from Australia may enhance the applicant’s career, however if he does not achieve this, it would not prevent him from studying at some level, in his stated business study, or gaining employment back in his home country. This is particularly the case given his evidence that the applicant already has professional qualifications in civil architecture back in his home country, and has in fact worked in a professional capacity in the construction industry back in his home country.

10. It is noted by the Tribunal that the applicant has a married partner currently living with him here in Australia. The applicant has provided evidence that his wife could return to his home country with him. In this situation the applicant could return home to his home country for a period of time with his partner, reacquaint himself with his home life and with his family. The Tribunal finds that this does not, in itself, present as a compelling need for the applicant to remain here as a student, or present sufficient hardship that will convince the Tribunal not to cancel the applicant’s student visa.

11. The Tribunal as a whole has considered the applicant’s statements however the breach is significant. As a visa holder who is bound by the conditions of his visa, the applicant was not able to provide sufficient reasons for the Tribunal to determine that the applicant had a compelling need to remain here as a student or would actually suffer hardship by having to return back to his home country.

12. The Tribunal has considered all factors listed above both individually and cumulatively in the exercise of the discretion to cancel a visa. The Tribunal finds that the breach is significant in the context of a student study period and the fact that he will be well aware of the expectations placed on him. As such, considering the circumstances as outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

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

    DECISION

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

    Stephen Witts
    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.