Vijay Pal (Migration)

[2018] AATA 806

Vijay Pal (Migration) [2018] AATA 806 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Vijay Pal

CASE NUMBER:  1703702

DIBP REFERENCE(S):  BCC2017/401331

MEMBER:Fiona Meagher

DATE:20 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 20 February 2018 at 8:18pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 – Poor academic performance – Passed only one subject in three years – Personal circumstances – Dental accident – Did not impend his study – Hardship – Wife studying in Australia – Father unwell – Credibility issues – No genuine intention to study

LEGISLATION
Migration Act 1958, ss 116, 140, 359AA
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 28 February 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202(2)(a), namely that the visa holder meets the requirements of the condition if the visa holder is enrolled in a registered course. A copy of the delegate’s decision was provided with the application for review. 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 15 November 2017 to give evidence and present arguments.   

4. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

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. The applicant gave evidence that he came to Australia on 20 May 2014 to study.  He enrolled in Information Technology at TAFE, but decided that he would not commence that because it appeared too difficult.  The applicant was unable to provide any cogent reason as to how he formed the view he would be unable to complete the information technology course.

10. The applicant then stated that he then enrolled at the Skills College to undertake a diploma of business in July or August 2014.  However, the applicant stated that he could not complete it because he breached condition 8202, because of his failure to be enrolled at the TAFE College. (This led to a cancellation of his visa.) The Tribunal asked the applicant whether he was aware that he was not enrolled and he stated that he was told by the migration agent that he could just change courses and that he was “new in Australia” and unsure of what he needed to do.

11. The Tribunal asked whether the applicant whether he told anyone of his decision to change courses, and he replied, after a lengthy pause, that he told his migration agent.  When asked the identity of the migration agent, the applicant said that it was MAX International. He said that they told him they were going to notify the Immigration Department.

12. The applicant told the Tribunal that he applied to the Migration and Refugee Tribunal in January 2015, in relation to the cancellation as a result of his failure to be enrolled, and the decision was set aside, and he was given a chance to obtain a certificate of enrolment within five days.

13. The Tribunal asked the applicant whether there were any other matters before the Tribunal.  He responded that there were not, but eventually changed his mind and said that he had applied for a subclass 500 visa, which was refused, and in respect if which, he is now appealing..

14. The applicant then applied for a certificate of enrolment from the Holmes Institute, studying a bachelor of business.  The applicant said that he did two semesters, and then he had his summer break. The applicant stated that he started at Holmes in September 2015 and studied until November 2015.  He said that he passed one of three subjects during that trimester – it emerged that the applicant was studying in trimesters not semesters. After that trimester, the applicant had his summer break.

15. The applicant commenced a further trimester at Holmes in February 2016 which was to last until July 2016. The applicant stated that he did not pass any of the three subjects in which he was enrolled during that trimester, as he had an accident.  The applicant said that the three subjects comprised of one new subject, and the two subjects he had failed in the previous trimester.

16. The applicant’s confirmed that his study history can therefore be summarised as that he came to Australia for the purposes of higher education in May 2014, and between then and receipt of the NOICC he has passed one subject in a bachelors course. He further confirmed that he had not been enrolled in a registered course of study since July 2016.

17. The applicant said that a dental accident on 31 May 2016 stopped him from going to classes because “it was funny to show my face”, which the Tribunal clarified to mean he was self-conscious about the loss of his teeth.  The applicant said that he received treatment for the dental accident on 21 July 2016, which left him with one false tooth and one gap without a  tooth in it.

18. 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), and it follows that the ground for cancellation unders.116(1)(b) arises.

    Consideration of the discretion to cancel the visa

19. 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.

20. 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).

    The purpose of the applicant’s travel to stay in Australia – whether the applicant has compelling need to travel to or remain in Australia

21. The applicant was granted the visa to study in Australia.

22. The Tribunal discussed with the applicant his study history, and the extent to which he had acted consistently with the purpose of the Visa. The applicant stated that the dental accident prevented him from attending college, but when asked by the Tribunal as to whether he approached the college to alert them to his accident, and ask for an appropriate period of time to seek treatment, he stated that he did not do so. The applicant told the Tribunal that he thought the seventh month (that is July) was the summer break, and thought that he would therefore re-enroll the following February.

23. The Tribunal asked the applicant whether his dentist said that he could not study, and he replied that he did not - he had only injured his teeth. The applicant stated that nothing else impeded his ability to study.

24. The Tribunal discussed with the applicant his previous application to the Migration and Refugee Tribunal, and his current application for review in respect of a subclass 500 visa refusal. The Tribunal put to the applicant, that in light of his study history it had concerns in relation to whether he genuinely intended to study in Australia. The Tribunal also had concerns, which were put to the applicant, that it seemed inconsistent that the applicant was unable to study due to a dental accident, but that such accident did not preclude him from being married in March of 2017, when he was still missing a tooth.

25. The Tribunal is not persuaded that the applicant has a genuine intention to study in Australia, rather he appears to wish to stay in Australia, contrary to the objectives of the student Visa.

26. Given that the applicant has been in Australia since May 2014, and passed only one subject, the Tribunal is not satisfied that the applicant’s purpose to travel and stay in Australia was to study, or that the applicant has a compelling need to remain in Australia. Further, the Tribunal has concerns as to whether the applicant has the ability to complete his studies in Australia. When those concerns were put to the applicant he stated that he did have the ability to complete his studies in Australia.

    The extent of compliance with visa conditions – whether the applicant has otherwise complied with these conditions now and on previous occasions

27. The Tribunal is not aware of any other breach by the applicant, and the Tribunal has given this some favourable weight.

28. The Tribunal has found that the applicant has breached condition 8202, and in the circumstances, the Tribunal is satisfied that the breach of condition 8202 is significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members – whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

29. In relation to this issue, the applicant explained the Tribunal that he and his wife would suffer hardship, if his Visa is cancelled. He said that he had been living with his wife in Australia for three years, and they became married on 31 March 2017. The applicant said that his wife is on a student Visa as well, and she would be lonely if he went home. When asked by the Tribunal why the parties got married, knowing that he the applicant might have his visa cancelled, the applicant stated that he and his wife thought he be able to stay on her visa. He said that he was unaware at that time of the consequences of the cancellation of the Visa.

30. The applicant stated that there are no other family members who would be affected.

31. The Tribunal recognises that the cancellation of the applicant student Visa could result in the applicant becoming an unlawful noncitizen and consequently liable for detention and removal from Australia. He could also face difficulties in obtaining another Australian Visa, and he may be required to return to India. In this regard, the applicant told the Tribunal that if he is unable to apply for a visa to Australia he will be unable to see his wife for three years as she is not welcome in his home, as his family do not approve of the marriage. If that is the case the Tribunal has some sympathy for the applicant, however the Tribunal fails to see why the applicant and his wife cannot meet somewhere other than his home. In any case, the Tribunal considers that those matters are legitimate consequences of the migration program, and in this instance, is not satisfied that they mean the Visa should not be cancelled. The Tribunal also recognises that the applicant’s wife may be lonely in those circumstances

32. The Tribunal has considered the applicant’s evidence, but on balance is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The circumstances in which the grant of cancellation arose – whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of the relationship breakdown, whether the relationship has broken down as a result of family violence.

33. The applicant gave evidence that the main reason why he could not study and continue to be enrolled was because of the dental accident. He said that some of the family savings were used to fix his teeth, but then in August 2016 his father became ill and was admitted to hospital so the rest of the family savings had to be spent on hospital care for his father, and accordingly he did not have enough money to pay the fees. The Tribunal asked the applicant how long his father was in hospital, and the applicant responded that it was for 2 to 3 months. The Tribunal then put to the applicant a letter he sent the department dated 21 February 2017 in which he stated, inter alia, that his “Father’s treatment was continuing, and he had to go to hospital every now and then”. When asked to explain the inconsistency between his statement to the Tribunal and the correspondence to the department, the applicant was unable to do so.

34. The Tribunal also asked the applicant why no mention was made of the difficulty in paying the fees, and its correlation with his father’s illness, in the letter of 21 February 2017. Again the applicant was unable to respond.

35. The applicant stated that his father’s illness placed stress on him and his family, but that his family wanted him to stay and concentrate on his study. When asked by the Tribunal whether he saw a counsellor or psychologist in relation to the stress arising from his father’s illness, the applicant stated that he did not do so, at least partly because he did not have sufficient money to do so.

36. The Tribunal notes that the applicant provided a number of medical certificates and associated documents in relation to his father’s health, and accepts that the applicant’s father was unwell, and that that would have led to sadness and anxiety on the part of the applicant. The Tribunal also accepts that the applicant damaged his two front teeth, which would have led to some pain and suffering on the part of the applicant.

37. The Tribunal gives some weight to the applicant’s circumstances.

38. The Tribunal has carefully considered the applicant’s explanations. The Tribunal is however of the view that the applicant was granted a student Visa in order to undertake studies in Australia and in over three years, has only completed one subject in one degree, indicating that the student Visa is not the appropriate visa for this applicant.

39. On balance in considering the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that the applicant’s circumstances as accepted by the Tribunal mean that the visa should not be cancelled.

40. As set out above, the applicant has not been enrolled in a course since July 2016, contrary to the condition attached to the Visa. The applicant’s personal circumstances as accepted by the Tribunal and for the reasons explained do not mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department – whether the applicant has been truthful and cooperative in their dealings with the Department

41. The applicant responded to the notice of intention to consider cancellation, and the Tribunal has given this aspect some weight in favour of the applicant, but this does not mean that the visa should not be cancelled.

    Whether there are persons in Australia whose visas would, or a, be cancelled under s.140

42. The applicant’s wife has a student Visa in Australia, in her own right. The Tribunal accepts that she would be lonely, in the event her husband’s visa is cancelled, and gives this aspect some weight, however does not accept that it means that the visa should not be cancelled.

    Whether there are mandatory legal consequences to a cancellation decision

43. As set out above, the applicant could become unlawful and may be subject to detention, but those are the consequences of the legislation, and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations and relevant international agreements would be breached as a result of the Visa cancellation

44. The Tribunal asked the applicant about his circumstances in India. The applicant did not raise any protection claims, and there is no evidence before the Tribunal that there would be a breach of any international obligations as a result of the Visa cancellation.

    Applicant’s credibility

45. The Tribunal did not find the applicant to be a credible witness. He was extremely vague and inconsistent, and evasive at times. He appeared to be unsure of what studies he undertook when. The Tribunal was also concerned that the applicant claimed to be prevented from studying because of his dental accident, but in fact was happy to get married in that situation, that he did not seek any deferment or time to recover with the college, nor did he seek psychological counselling when his father became unwell. The applicant simply responded that he was only thinking about his dad’s health.

46. In addition, he gave information regarding his father’s health which was in consistent with that which he placed before the Department in February 2017. Pursuant to the requirements of s. 359 AA, the Tribunal put to the applicant inconsistencies between his oral evidence and evidence provided to the Tribunal at the hearing of the first application for review of the Visa cancellation. In particular, the Tribunal put to the applicant that he claimed to have a start date of March 2015 at Holmes in the earlier hearing, and now claimed in this hearing that he was eligible to start in September 2015, and further that in the earlier hearing he claimed to have sufficient funds to pay for his study. He only response was that he could not remember dates.

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

    DECISION

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

    Fiona Meagher
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.