Virdi (Migration)

[2020] AATA 724

Virdi (Migration) [2020] AATA 724 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh Virdi

CASE NUMBER:  1729146

HOME AFFAIRS REFERENCE(S):          BCC2017/2996744

MEMBER:Darren Renton

DATE:20 March 2020

PLACE OF DECISION:  Perth

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

Statement made on 20 March 2020 at 11:42am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – family’s health and business difficulties – applicant’s physical and mental health – changes of course, work and plans to apply for working visa – enrolment in new courses – credibility – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) 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 was not enrolled in a registered course of study between 21 November 2016 and 28 August 2017. 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 1 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

9. The delegate’s decision (a copy of which was provided to the Tribunal by the applicant) notes that the applicant’s certificate of enrolment (CoE) for a Bachelor of Business degree was cancelled by his education provider on 21 November 2016 due to non-commencement.  From that date until 28 August 2017 (“the relevant period”) the applicant was not enrolled in a course of study. The delegate found that the applicant remained in Australia for an extended period beyond the 2 months permitted between courses.  The period of non-enrolment was further evidenced by the Provider Registration and Student Management System (PRISMS) records identified in the delegate’s decision.

10. At the commencement of the hearing, the applicant told the Tribunal that he accepted he was not enrolled during the period identified in the delegate’s decision and that consequently he was in breach of the relevant condition.

11. In light of that concession, only a brief summary of the factual circumstances leading to that cancellation is necessary.

12. As noted in the delegate’s decision, the applicant came to Australia to originally study a package course culminating with a Bachelor of Business. He had completed part of that package before his CoE was cancelled.

13. During the course of his studies, the applicant advised the Tribunal that due to hardships at home including the ill health of his mother and sister, the downturn in his father’s business and his father needing to provide all the care for his family, there were difficulties in funding his ongoing studies and he was stressed about his family’s circumstances, becoming unwell and suffering insomnia.  The applicant claimed that his family did not want him to return home to help but to complete his studies.  The applicant further claimed that he was confused at this time and his then employer offered to sponsor him with an application for a subclass 457 visa.

14. The applicant claimed that he made genuine attempts to enrol in a course, and in November 2016 he obtained an offer of enrolment with a higher education provider in Sydney, but due to circumstances he could not enrol. The applicant claimed that he applied again in March 2017, however the educational provider asked for his current documents which he was not able to provide.  Following urging from his father, the applicant withdrew the 457 visa application and in August 2017 enrolled in a Diploma of Business course.

15. During the time that the applicant was not enrolled in a course of study, he worked for the employer who was prepared to sponsor him.  The applicant told the Tribunal that he worked in the kitchen making pizza and grilling food on a casual basis, often 2 days per week, sometimes for a few hours at a time but averaging around 12 to 16 hours per week, sometimes more.  The applicant was learning to cook new dishes during this time as well.

16. The applicant was provided with a copy of the Notice of Intention to Consider Cancellation dated 20 September 2017.  In his response, the applicant did not accept the breach and claimed that he had complied with his visa conditions.

17. The applicant’s present acceptance that he was not enrolled during the period identified in the delegate’s decision and consequently in breach of his student visa, is in accordance with the evidence.

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

    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 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 Procedural Instruction ‘General visa cancellation powers’.

20. At the applicant’s hearing, the Tribunal’s process was explained to him including that the Tribunal had the discretion to consider relevant factors in deciding whether to cancel or not cancel the visa.  The Tribunal confirmed that the applicant understood the process and he provided answers to questions posed of him during the hearing.

21. At the conclusion of the applicant’s evidence, his migration agent informed the Tribunal that the applicant was nervous and missed saying things that he had wanted to say.  To ensure that the applicant was afforded natural justice and procedural fairness, the Tribunal gave the applicant an opportunity to tell the Tribunal anything further that he wanted to say in support of his application.  The applicant advised that he did not want to add anything.

22. The purpose of the visa holder’s travel to and stay in Australia and extent of compliance with his visa conditions

23. As noted above, the applicant came to Australia to study a package course that would culminate in the completion of a Bachelor of Business.  Having progressed part way through that package before ceasing enrolment, the applicant eventually went on to enrol in a Diploma of Business and a Bachelor of Business.  The applicant told the Tribunal that he wanted to study in Australia to get good qualifications to help get a good job at home.

24. According to the applicant, his courses would have been studied at the Queensland University of Technology over the following timeframes:

    a.English for Academic Purposes – 23/10/14 – 3/2/15;

    b.Diploma in Business – 18/2/15 – 13/10/15; and

    c.Bachelor of Business – 16/11/15 – 30/6/17.

25. Residing in Surfers Paradise with relatives, the applicant claimed he found the travel to Brisbane to attend the campus difficult to maintain.  He requested a change of timetable so that he could continue his part time work, but his courses did not permit that.

26. To accommodate his part time work, in September 2014 the applicant enrolled in a different course with another education provider, the Australia National Institute of Business.  The applicant advised that those courses were:

    a.Certificate IV in Business – 27/10/14 – 26/4/15;

    b.Diploma of Management – 25/5/15 – 29/11/15; and

    c.Advanced Diploma in Business – 14/3/16 – 18/6/17

27. As is immediately apparent, the applicant’s new enrolment, despite covering the same effective length of study, did not include the Bachelor of Business course that he originally came to Australia to study and in which he was previously enrolled with QUT.

28. By the end of 2015 the applicant had completed both the Certificate IV and Diploma courses.  He continued to work part time and went on to commence studying his Advanced Diploma course, although the PRISMS records indicate the course was actually an Advanced Diploma of Management.

29. The applicant claims that in late 2015 his mother developed health issues that deteriorated during the course of 2016.  The applicant further claimed that he was not made aware of these issues until around the middle of 2016 when informed of them by his father.

30. The applicant is the eldest of three children with two sisters, one of whom has autism and the other, was 11 years old at the time.  The applicant claimed to come from a close-knit family.

31. In support of the applicant’s mother’s ill health, various medical certificates were provided including:

    a.A certificate dated 21/9/15 referring to a possible cholecystectomy and the prescription of potrate tablets, a potassium salt used to dissolve kidney stones;

    b.A certificate dated 28/7/16 referring to lumbar pain and various prescription drugs;

    c.A certificate dated 26/11/16 with various prescription medications; and

    d.A certificate dated 16/2/17 referring to x-ray and MRI of the cervical spine.

32. While there is limited information that can be gleaned from these documents about the state of the applicant’s mother’s health, they nonetheless confirm that she was obtained medical assistance for issues associated with her spine from July 2016.  The reports give a static indication of her health rather than covering the whole period of time, making it difficult to ascertain the precise nature of her medical concerns (being chronic or acute) or the treatment for them.

33. In answer to questions about his mother’s health, the applicant told the Tribunal that his mother fell over in the rain and had back issues.  Thereafter she got the flu and was bed ridden for two and a half months including being hospitalised.  Based on the medical documents provided by the applicant, there is only very limited support for these assertions. This in turn impacts negatively on the assessment to be made of the applicant’s claim that his mother’s health wore heavily upon him and contributed to the cancellation of his studies.

34. The applicant further claimed that upon learning of his mother’s condition and that his father had to provide care for her (as well as his autistic sister and his youngest sister) at the cost of working himself, he started to worry.  The applicant claimed his father held a government labour supply contract that required his personal involvement in the business in order to earn the family’s livelihood.  In turn, this worry turned into stress that started impacting on the applicant’s ability to concentrate on his studies.

35. To further exacerbate the applicant’s father’s financial worries, the applicant claimed that a change of government policy in late 2016 effectively brought his father’s business to a standstill.  The changes were brought in to regulate the black market trade in a cash economy and the applicant’s father’s business relied heavily on paying workers in cash.  The applicant’s father was supposed to fund the applicant’s studies.

36. As a consequence of the applicant being stressed about his family’s situation back home, he ultimately failed the Advanced Diploma course due to underperformance.

37. When asked by the Tribunal why he simply didn’t seek to defer his studies and return home to assist in his family’s care, the applicant claimed that he never thought about a deferral and wanted to continue with his studies.  The applicant claimed that his family wanted him to stay in Australia and continue his studies.

38. It is not easy to reconcile the applicant’s evidence in the preceding paragraph with his claims that his studies were to be funded by his father (whose business was now at a standstill) and that despite coming from a close-knit family, they did not want him to return home and share the burden being borne by his father which was in turn adding to the family’s financial suffering.

39. A further matter difficult to reconcile about the applicant’s evidence was his differing answers to the question of whether he was financially supporting his family.  Initially the applicant told the Tribunal that he wanted to support his family financially.  He later claimed that he was not working to support his family during the period of the breach but later stated that he was sending money home to his family.

40. The Tribunal put to the applicant that it appeared he had decided to work instead of study given the circumstances.  The applicant said he was confused at the time, whether to stay and work or study or go home.  The Tribunal asked the applicant to explain how he could be confused during the whole period that he was working while not studying.  The applicant could not give the Tribunal an answer.  The Tribunal considers the failure of the applicant to explain his claimed confusion throughout the relevant period to reflect adversely on his credibility.

41. Following the applicant’s failed studies, he claimed that his employer offered to assist him by sponsoring him for a sub class 457 visa.  The applicant claimed that the application was lodged in November 2016 and he continued working at his employer’s restaurant after being advised by the employer’s migration agent that his relevant work experience would be adequate for the visa’s requirements.  Nearly seven months later (c. June 2017), the applicant claimed that a request for further information was made regarding his prior work experience.  The applicant claimed he was advised by his employer’s migration agent that he lacked the necessary work experience to qualify and the application was accordingly withdrawn by the employer.

42. This evidence is contrary to the finding in the delegate’s decision that in responding to the Notice of Intention to Consider Cancellation, the applicant indicated he withdrew the 457 application after his father urged him to continue his studies.  This is another matter that the Tribunal considers to impact negatively on the applicant’s credibility.

43. While working for his employer, the applicant told the Tribunal that he was working in the kitchen, making pizzas and grilling food.  He was working on a casual basis, two days per week with varying hours, but averaging between twelve and sixteen hours per week.  Throughout the period covered by the breach, the applicant’s employer was happy with the quality of his work and did not have any cause to complain.  The applicant said when he was not working, he stayed at home. 

44. The applicant claimed that the psychological stress he was suffering regarding his family’s situation manifested into physical ill-health.  In support of this, the applicant provided the following medical documents:

    a.30/12/16 prescription for the antibiotic Keflex;

    b.Receipts for surgical visits to a GP on 4/8/17 and 30/8/17 and a prescription dated 30/8/17 for Zopiclone (a nonbenzodiazepine used to treat sleeping difficulties);

    c.A medial certificate dated 6/10/17 stating the applicant had been seen twice for upper respiratory infections.  The certificate also states that the applicant was having issues sleeping and had been worrying about his family issues back home and his stay and studies in Australia;

    d.Report dated 28/3/19 regarding a perianal abscess; and

    e.Report from the applicant’s doctor in India dated 27/9/19 indicating the applicant had a history of haemorrhoids for which he prescribed medication and dietary plans.  The report notes that the applicant was embarrassed to see doctors in Australia and because the cost to do so (and obtain medication) was high.

45. As with the medical evidence in support of the applicant’s claims regarding his mother’s health, the material supplied to support his own health claims provides only very limited support.  In written submissions, the applicant claimed that due to his poor financial state, he avoided seeing doctors in Australia and this aggravated his problems.  Whatever be the true state of the applicant’s health during the relevant period, it did not appear to affect his ability to work or the quality of his work.  The limited nature of the medical evidence supporting the applicant’s inability to focus on and in turn continue his studies impacts negatively on the assessment to be made of the applicant’s claim.

46. Following the applicant’s failed attempt to secure the 457 visa, in August 2017 he re-enrolled in a Diploma of Business at Trinity Institute Brisbane with plans to join a Bachelor degree on completion.  Given his previous studies, the applicant was given credits towards his new course and hoped to quickly join the bachelor degree.  It is to be observed that the applicant had already completed a Diploma of Management prior to this.

47. The applicant had to move to Sydney shortly after joining Trinity Institute following advice from the course controllers that due to low enrolment numbers they would not be running the course that year but would be running the same course in Sydney.

48. The applicant commenced his studies at the Sydney campus and was due to complete the course on 26 August 2018.  He held a CoE for a Bachelor of Business at Group Colleges Australia to commence 27 August 2018 and conclude on 13 August 2021.

49. Shortly after 20 September 2017 the applicant received the Notice of Intention to Consider Cancellation.  According to the applicant’s written submissions, this distressed him as he had finally got his studies back on track and was keen to complete them and return home.

50. On 13 October 2017 the applicant submitted a response to the Notice but in doing so he failed to address his lack of awareness of his obligations to maintain enrolment or seek a deferral, his inability to see a doctor during the break in enrolment due to lack of funds, the misleading advice from his employer’s migration agent regarding his work experience in the 457 visa application.  The applicant noted that he was not asked to provide any further information after responding the Notice.

51. In his written submission the applicant claimed the delegate gave insufficient weight to the circumstances in which the non-compliance arose.

52. Other than the breach giving rise to the cancellation of the applicant’s visa, the extent of his compliance with the visa conditions has been appropriate.  Given his stated purpose of coming to Australia to study, the applicant has completed several courses and was re-enrolled in courses consistent with his original study plan.  This in turn is relevant in considering whether the applicant has a compelling need to remain in Australia.  These are matters that weigh in favour of setting aside the decision to cancel the applicant’s visa.

    Circumstances in which the ground of cancellation arose

1. Much of the evidence relating to this factor has been outlined above and is adopted without repetition.

2. It is clear that the applicant was troubled at the situation facing his family at home and he claimed to be torn between returning home or staying and continuing his work and studies.  He further claimed that the impact of the situation caused him to falter in his studies and eventually fail the Advanced Diploma course.  In that regard, he draws a causal connection between the circumstances overseas and the termination of his enrolment.

3. A matter telling against the applicant is that rather than continue with his studies in some form as he claimed his family wished, or otherwise seek assistance in relation to his studies, he instead pursued a 457 visa with his employer. 

4. The Tribunal gives no weight to the applicant’s claim that he was misled by his employer’s migration agent concerning his past work experience meeting the 457 visa conditions.  This is a matter that went to the strength of the applicant’s claims against the relevant visa criterion but does not explain his decision to work rather than study.

5. While it is understandable that the applicant would feel worried about the circumstances at home and that this might impact on his studies, there is no evidence before the Tribunal that it had any effect on his ability to work and earn an income during that time.  The Tribunal invited the applicant to describe the period of his employment during the breach period to establish if there was evidence that the reasons (other than financial) impacting on his studies manifested themselves in his work life – they did not.

6. When regard is had to the applicant’s inability to explain why he was confused about returning or staying and the fact that he pursued a 457 work visa instead of studying, the Tribunal finds that the applicant consciously decided to work in order to assist his family in India financially rather than study.

7. The Tribunal does not accept that the applicant lacked awareness of his obligations to maintain his enrolment or to seek a deferral of his studies for personal reasons.  The applicant had access to his employer’s migration agent during the 457 visa application process and was capable of seeking assistance from his education provider.

8. The limited evidence of the applicant’s health during the breach period does not attract much weight against cancelling his visa.  While there is a difference between studying and working, the limited nature of the medical evidence does not suggest that the applicant’s health played a significant part in his breach.

9. The applicant’s return to studies followed the failure to secure a different type of visa.  While the decision predated him receiving the Notice of Intention to Consider Cancellation by around a month, the Tribunal is satisfied that the decision to re-enrol was an attempt by the applicant to maintain residency in Australia and by extension, his employment and income earning capacity.

10. The Tribunal considers on balance, that the circumstances in which the ground for cancelation arose are a significant factor in favour of cancellation of the applicant’s visa.

    Degree of Hardship that may be caused

11. The applicant has no dependents in Australia.  He told the Tribunal that he had no one else in Australia and did not present evidence to indicate he financially supported anyone in Australia.

12. The Tribunal asked what the applicant would do if the decision to cancel his visa was affirmed.  He told the Tribunal that if his visa was not reinstated, he would return to India and recommence his studies there.  He claimed he would have to start from scratch.  Under further questioning he conceded he would get credit for the courses he had completed in Australia.

13. The applicant said his family still supported his studies and that they wanted him to complete them and achieve his qualifications.  He claimed that his mother was now fine although his father was still struggling with the business.

14. As much of the applicant’s claimed distress was a result of his dislocation from his family during troubling times arising from his mother’s ill-health and the resulting need for his father to be the primary care giver for the whole family thereby compromising his ability to work, were the applicant to return home now, the only lingering issue is the state of his father’s business.  It is to be expected that the applicant’s psychological and physical health would improve by returning home and that the financial burden on the family would be lessened by not having to fund the applicant’s studies overseas.

15. The Tribunal accepts that the cancelation of the applicant’s visa will be disappointing for him and that there may be hardship felt by him and his family who had provided financial support for the applicant’s studies in Australia.

16. The weight of these hardships against cancelling the applicant’s visa must be balanced against the applicant’s breach in not studying for approximately nine months during which he continued to work and hoped to acquire a sub class 457 visa.  Ultimately, the Tribunal only gives very limited weight against cancellation of the applicant’s visa under this factor.

17. There is no evidence before the Tribunal of any other visa holder being at risk of having their visa cancelled under s.140.

    Past and present conduct of the visa holder towards the Department

18. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such, the Tribunal gives this some weight in the applicant’s favour against cancellation of his visa.

    Whether there are mandatory legal consequences to a cancellation decision

19. If the visa is cancelled the applicant will become an unlawful non-citizen and liable to detention and removal. There is no evidence before the Tribunal to indicate that indefinite detention is a possible consequence of the decision to cancel the applicant’s visa.

20. The applicant would be prevented from making a valid onshore visa application due to the operation of s.48.  The applicant could make another student visa application offshore, although it would be subject to PIC 4013 meaning he could be precluded from being granted a further visa for a period of three years. 

21. The Tribunal has also considered whether the applicant might be affected by PIC 4014. The applicant would be subject to PIC 4014 if he were to apply for a visa which was subject to this consideration pursuant to Schedule 2 of the Regulations.  PIC 4014 would apply to the applicant if he were to leave Australia as an unlawful non-citizen, or subject to a bridging visa C, D or E (other than one granted within twenty eight days after the cancellation of his student visa).  As the applicant was granted a bridging visa E on 28 November 2017 (and thus within twenty eight days of the cancelation of his student visa on 15 November 2017), PIC 4014 has no application.

22. The Tribunal accepts that being precluded from being granted another visa for a period of three years is a factor against cancellation of the applicant’s visa, however, the Tribunal only gives this matters limited weight against cancelling the applicant’s visa as it does not overcome the other factors identified in this decision favouring cancellation of the visa.

    Australia’s international obligations

23. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligation.  The Tribunal places no weight on this in favour of the applicant.

    Any other relevant matter

24. There are no other relevant matters before the Tribunal.

25. Considering the circumstances as a whole, particularly the circumstances in which the ground for cancellation arose, the Tribunal considers that on balance, this factor outweighs those matters identified above against cancellation.  Accordingly, the Tribunal concludes that the visa should be cancelled.

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Class TU573 visa.

    Darren Renton
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.