Yadav (Migration)

[2019] AATA 5860

Yadav (Migration) [2019] AATA 5860 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sudhir Yadav

CASE NUMBER:  1709877

HOME AFFAIRS REFERENCE(S):          BCC2017/825625

MEMBER:Frank Russo

DATE:28 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 August 2019 at 5:42pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – Master of Computer Science – not enrolled in registered course – withdrew from studies – illness in family – mental health issues – steps taken to re-enrol – credible witness decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 May 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 applicant did not meet the requirements of his Student visa as he was not enrolled in a registered course. 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 on13 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Satinder Rajpal. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 is a 25-year-old Indian national. In addition to the information provided with his application for review, the applicant provided the Tribunal with copies of the following documents:

   a.A submission from the applicant, received by the Tribunal on 9 June 2019;

   b.Confirmation of Enrolment for the Graduate Diploma of Management (Learning) at Wakefield International Business School, from 17 June 2019 to 14 June 2020;

   c.PTE Academic Test Taker Score Report, dated 15 May 2019;

   d.Letter of Offer from Australia Institute of Technology and Education for the Diploma of Business, dated 8 March 2017, as well as an email from Hope Migration Services to the applicant, dated 13 March 2017, forwarding a copy of the letter of offer;

   e.Report of Dr Gurprit Ganda, Clinical Psychologist, dated 3 June 2019;

   f.Treatment Plan and invoice from Painfree Dentistry, dated 15 August and 28 September 2019, respectively;

   g.Medical certificate in respect of the applicant’s mother medical condition, issued by PRP Hospital, Kidney Centre & Blood Bank, Karnal, India, dated 17 October 2016;

   h.Certificate of Fitness issued by Pandit Ramprakash Hospital, Karnal, India, dated 25 March 2017;

   i.Affidavit from the applicant’s parents, dated 3 June 2019;

   j.Emails from the University of Wollongong to the applicant, dated 4 January and 9 February 2017;

   k.Various emails between the applicant and migration agents, dated from 13 March 2017 to 28 May 2019;

   l.Letter of reference from Satinder Rajpal, dated 1 June 2019;

   m.Letter of reference from Raj Gauba, dated 2 June 2019; and

   n.Letters from Chanbir Chadha and Ravi Kakkar, Sant Nirankari Mission, Sydney, dated 31 May 2019 and 1 June 2019, respectively.

9. The Tribunal has had regard to these documents in making its decision. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

10. The applicant provided the Tribunal with a copy of the Department’s decision and indicated that he had read and understood the reasons for decision.

11. The applicant gave evidence that he first arrived in Australia on 16 September 2016 for the purpose of studying an English language course and then a Master of Computer Science at the University of Wollongong, which he was enrolled to commence on 27 February 2017. The applicant told the Tribunal that he did not start the English language course as five to seven days after he arrived in Australia his mother went into hospital. The applicant stated that he became stressed and depressed as a result of his mother’s hospitalisation. He told the Tribunal that he wasn’t thinking clearly at the time because of his stress. He stated that he cancelled his enrolment because he thought he could get his fees back, which he would give to his family in India to assist with his mother’s treatment.

12. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

13. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that it was an accurate reflection of his enrolment history.

14. According to the applicant’s PRISMS enrolment record, he was enrolled in English Language Programs from 7 November 2016 until 17 February 2017, but this enrolment was cancelled on 23 November 2016 due to non-commencement of studies. Similarly, his enrolment in the Master of Computer Science was cancelled on 10 October 2016, with the variation reason ‘Student Notifies Cassation of Studies’. There are no further enrolment entries in the applicant’s PRISMS record until 2019. The record indicates the applicant was approved to commence the Graduate Diploma of Management (Learning) on 17 June 2019, with a course finish date of 14 June 2020.

15. In both his written submissions and at the hearing, the applicant confirmed that he was not enrolled in a registered course of study from 23 November 2016 until the delegate’s decision on 2 May 2017, and had failed to maintain his enrolment in accordance with condition 8202. The applicant confirmed that he accepts that there are therefore grounds for cancellation of the visa.

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. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The 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

18. The applicant told the Tribunal that the purpose for his travel and stay in Australia is to study to obtain a tertiary qualification. He has a Bachelor of Computer Science, which he obtained in India and was enrolled to study the Master of Computer Science at Wollongong University, but did not commence this course due to the circumstances which are outlined in greater detail in these reasons below. After the applicant became aware of his mother’s hospitalisation in September 2016, he withdrew from his enrolment in this course and sought a refund of his fees with a view to returning to India.

19. The applicant told the Tribunal that in early 2017 his mother’s medical condition stabilised and he was ready to commence his studies, however he was unable to enrol in suitable courses as he had not completed an English course. In addition he had not completed six months of the Master of Computer Science, therefore he was unable to transfer to a different course.

20. The applicant stated that he now has a sufficient PTE English test score, which he obtained in May 2019, a copy of which he provided to the Tribunal. The applicant told the Tribunal that he had tried to obtain a fresh enrolment in March 2017. An agent was able to offer him enrolment in a Diploma of Business at Australis Institute of Technology and Education, but the applicant stated that he was concerned that if he enrolled in such a course it would be a further breach of his visa conditions as it would be enrolment in a course which was not at the same level as the Masters degree which he came to Australia to study.

21. The Tribunal enquired as to the reasons why the applicant is now enrolled in a Graduate Diploma of Management (Learning), with a commencement date of 17 June 2019. He stated that he was advised by an agent that the Graduate Diploma of Management can be a pathway for enrolment into a Masters course. The applicant stated that he intends to enrol in and complete a Masters course, after which he intends to return to India. The applicant also told the Tribunal that since the delegate’s decision to cancel his visa, he has asked agents whether he can enrol in a Masters course, but has been advised that he can’t because he currently holds a Bridging visa (subclass E).

22. The Tribunal questioned the applicant as to how he has been supporting himself while in Australia. He stated that he has been receiving some help from friends. He stated that in 2018 he started working in a warehouse, in a job that involves packing. He stated that this job is only casual and he sometimes doesn’t get work. He stated that he was unable to work for part of 2017 because he was in a car accident in August 2017.

23. The Tribunal heard evidence from Mr Rajpal, who told the Tribunal that he met the applicant when the applicant started to attend the same temple. He stated that he did not become close to the applicant until the third quarter of 2017. Mr Rajpal stated that he observed that at that time the applicant had issues ‘in his head’ and recommended to the applicant that he seek psychiatric help. He stated that since the applicant has been seeing a doctor he has been much better. He stated that the applicant is now surrounded by support and he believes the applicant is in a position to commence his studies.

24. The Tribunal accepts that the applicant’s evidence that his reason for travel to Australia is to study. There is insufficient evidence before the Tribunal to indicate the nature of any other purposes for the applicant remaining in Australia. The Tribunal notes however that the applicant has not commenced studies in any courses since his arrival in Australia in September 2016. He did not commence the courses which he came to Australia to study and he has not enrolled in any courses subsequent to the delegate’s decision to cancel his visa, other than his recent enrolment in the Graduate Diploma of Management. This suggests that the applicant’s purpose for remaining in Australia may be for reasons other than to study. The Tribunal has however considered the reasons the applicant has given for his failure to commence his studies in November 2016 and for his inability thereafter to obtain a suitable enrolment. Accordingly, the Tribunal accepts the applicant’s evidence that his purpose for remaining in Australia remains to study and that his plans remain to enrol in a Masters course. The Tribunal gives this some weight against cancelling the visa.

    The extent of compliance with visa conditions

25. The applicant conceded at hearing that he did not comply with condition 8202 of his Student visa by not maintaining enrolment in a registered course of study from 23 November 2016 until the delegate’s decision on 2 May 2017, a period of just over five months. The applicant gave evidence that he attempted to obtain a fresh enrolment in March 2017, prior to the Department’s issue of the Notice of Intention to Consider Cancellation (NOICC) of his visa, which was issued on 10 April 2017, after the Department’s contact with him on 31 March 2019 for the purpose of obtaining his current contact details. The applicant provided the Tribunal with a copy of a letter of offer from Australis Institute of Technology and Education, dated 8 March 2017, which indicates that he had made enquiries with an agent about becoming re-enrolled. The applicant told the Tribunal that he did not receive a refund of his course fees for the Master of Computer Science until late January 2017. An email provided by the applicant from the University of Wollongong, dated 9 February 2019, indicates that at that date the refunding of his course fees was still in process.

26. The applicant told the Tribunal that he has complied with all other conditions of his visas. There is insufficient evidence before the Tribunal of other breaches by the applicant of his visa conditions. Accordingly, I give this some weight against cancelling the visa.

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

27. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated that he has already gone through a lot of stress as he knows that he made a wrong decision in relation to seeking a refund of his course fees in September 2016. He stated that he has already wasted a lot of time and money in being in Australia. He believes he has wasted three years of his life and if his visa remains cancelled his future will be ruined. He stated his dream remains to obtain an Australian degree, and if his visa remains cancelled he will not be in a position to fulfil this dream. In addition his mother will feel guilty as it was as a result of her illness that he decided to withdraw from his studies.

28. The applicant told the Tribunal that he has also endured hardship as a result of being on a Bridging visa. He stated that his family needed him, but he has not been able to travel due to the no travel condition on his Bridging visa.

29. In the report of Dr Gurprit Ganda, dated 3 June 2019, Dr Ganda certifies the applicant was referred to him in March 2018 for opinion and management following symptoms of anxiety and depression. From March 2018 to 3 June 2019 he has had ten sessions with the applicant. In Dr Ganda’s opinion the applicant has been suffering from Adjustment Disorder with Anxiety and Depression. He stated that based on the history given by the applicant, clinical interview, test findings and clinical observation, it is his opinion that the applicant has been experiencing depression since he came to know about his mother’s illness in 2016. He indicates that in sessions he has come to understand that the applicant is committed to pursuing his studies, but is concerned and worried about his future. While the applicant first sought treatment from Dr Ganda several months after the delegate’s decision to cancel the applicant’s visa, the Tribunal notes that the applicant has received regular treatment from Dr Ganda since March 2018, and finds this to be relevant in considering the psychological hardship which may be caused to the applicant.

30. The Tribunal also notes the evidence which Mr Rajpal provided as to his observations of the applicant in the last quarter of 2017 and his recommendation to the applicant that he seek psychological help.

31. The Tribunal is satisfied that the applicant would experience some hardship as a result of the cancellation of the visa, including a further delay in his ability to obtain a tertiary qualification in Australia, which is the purpose for his travel and for him remaining in Australia, as well as psychological hardship. I give this some weight against cancelling the visa.

    Circumstances in which ground of cancellation arose

32. As noted above, the applicant gave evidence that he first arrived in Australia on 16 September 2016 for the purpose of studying an English language course and then a Master of Computer Science, which he was enrolled to commence on 27 February 2017. The applicant told the Tribunal that he did not start the English language course as five to seven days after he arrived in Australia his mother went into hospital. The applicant stated that he became stressed and depressed as a result of his mother’s hospitalisation and cancelled his enrolments.

33. The applicant’s movement record indicates that he arrived in Australia on 16 September 2019. A medical record provided by the applicant indicates that his mother was hospitalised from 22 to 28 September 2016 in a serious condition, suffering from ‘Diabetic Mellitus with Nephropathy (Renal Parenchymal disease). This medical document lends support to the applicant’s evidence about his mother’s hospitalisation soon after his arrival in Australia. A certificate of fitness, issued on 25 March 2017, indicates the applicant’s mother received outpatient care from the hospital where she had been admitted after 28 September 2016 until she was declared fit.

34. The Tribunal asked the applicant why he did not seek a deferral of his studies or return to India in September 2016 if he was worried about his mother’s health. He told the Tribunal that he cancelled his enrolment because he thought he could get his fees back, which he would give to his family in India to assist with his mother’s treatment. The applicant also told the Tribunal that he did not return to India as he did not receive his course fees back until January 2017 and had no funds to return to India.

35. The Tribunal notes that the report of Dr Ganda states that the applicant relayed to him that when he was depressed, he could not think rationally and made decisions which were influenced by his emotional state at the time. The report states that by the time the applicant’s head was clear and he was ready to pursue his studies, his enrolment at the University of Wollongong had already been cancelled.

36. The applicant stated that by early 2017 his mother was doing better and was out of danger. This is supported by the certificate of fitness the applicant provided, indicating his mother was fit from 25 March 2017. He stated that she will need to receive treatment for the rest of her life.

37. The applicant gave evidence that in March 2017 he approached a number of immigration agents for the purpose of obtaining a fresh enrolment, however they told him that he could not get into college as he had not done an English language course. In addition, he was unable to obtain admission to suitable courses as a precondition for enrolment was that he complete at least six months of the Master of Computer Science course that he had initially been enrolled in. He stated that unless he completed six months of this course he was unable to transfer into other courses and no agents could help him.

1. The applicant told the Tribunal that he met one agent who told him that he could get him an enrolment. The agent subsequently arranged for a letter of offer for the Diploma of Business to be provided to the applicant. A copy of this letter of offer was provided by the applicant to the Tribunal. He stated that he was going through the process of enrolment in this course when he received a copy of the Department’s NOICC. The applicant told the Tribunal that he responded to the NOICC and in the meantime continued to seek enrolment.

2. The Tribunal questioned the applicant as to the steps he took to study after his visa was cancelled. The applicant told the Tribunal that in August 2017 he was in a bad car accident. The applicant was a passenger in a car being driven by a friend of his. His friend hit a roadside pole and the applicant was injured. He lost a tooth in the accident. The applicant told the Tribunal that this accident increased his stress and his inability to act.

3. The applicant told the Tribunal that he started to visit a temple in Sydney to help relieve some of the stress. After this he began to feel better. He stated that he first went to see a psychologist in March 2018.

4. The applicant told the Tribunal that he understood he had made a mistake in withdrawing from his course in 2016 and seeking a refund of his fees. He understood that he had acted irrationally. He stated that due to his concern for his mother, he felt as though he needed to take drastic steps, however he stated that if the same situation arose again now he would be more careful.

5. The applicant provided the Tribunal with an affidavit from his parents, dated 3 June 2019, in which they confirm that the initial decision the applicant took to withdraw his university fees and return back to India was due to his mother’s medical condition. They state that they did not want him to leave his study and pushed him to stay in Australia.

6. The Tribunal accepts that the applicant’s decision to withdraw from his course was triggered by his mother’s admission to hospital in September 2016. The Tribunal accepts that it is likely that a student who experiences such events a week after arriving in Australia would experience a level of stress. The Tribunal takes into consideration the applicant’s relative youth and inexperience, and that this was the first time the applicant was away from home. The Tribunal also accepts that at the time the applicant made his decision to withdraw from his course, he had intended to return to India, however he was unable to do so as his course fees were not returned until late January or February 2017. The Tribunal accepts that by that stage the applicant’s mother’s health had stabilised and his parents encouraged him to remain in Australia. The Tribunal also accepts that the applicant took steps to obtain a fresh enrolment in early March 2017, a few weeks prior to contact from the Department, and approximately one month prior to the issue of the NOICC. The Tribunal considers that much of the circumstances which resulted in the breach were in the applicant’s control, in that it was his decision to cancel his enrolment and seek a refund of his fees in September 2016. Other options, such as a deferral of his studies, may have been open to him. The Tribunal however considers that some weight should be given towards the difficulty which the applicant faced at the time he took the decision to withdraw from his course. The Tribunal also considers that the events which occurred after this, including the delay in receiving his fees and the difficulties in enrolling in a course without having completed an English course were impediments to the applicant obtaining a suitable enrolment.  Accordingly, the Tribunal gives this a little weight against cancelling the visa.

   Past and present behaviour of the visa holder towards the department

7. The Delegate noted in the Department’s decision that the applicant has been cooperative with the Department and provided information when requested. In this regard the Tribunal notes the statement the applicant provided to the Department prior to his visa being cancelled. The Tribunal is not aware of any issues with the applicant’s past or present behaviour towards the Department. The Tribunal gives this some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

8. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   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

9. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status.

10. The Tribunal is also mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The applicant would therefore experience a further delay in his ability to obtain a postgraduate qualification in Australia. As noted above, the applicant stated that the purpose for him remaining in Australia is to obtain a tertiary qualification. Given the circumstances, the Tribunal gives this some weight against cancellation of the visa.

    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

11. Not applicable.

    Any other relevant matters

12. The Tribunal asked the applicant whether there are any other relevant matters which should be taken into account. The applicant responded that to relieve his depression he has been doing some social work. The applicant has also provided a range of references which state that he is a person of good character and participates in volunteer activities. The Tribunal considers this relevant to the applicant’s character and gives this consideration a little weight against cancelling the visa.

13. Although the Tribunal has concerns that the applicant did not commence his studies upon his arrival in Australia and has not subsequently been enrolled in another course until his recent enrolment in June 2019, the applicant gave credible reasons for this chain of events. The Tribunal considers the applicant is now in a position to commence his studies, given he has obtained the necessary test results for English language and the timeframes which have barred him from enrolment in other courses have now passed. As noted above, I have given some weight to the purpose of the applicant’s travel to and stay in Australia against cancellation of the visa. While the Tribunal considers that much of the circumstances which resulted in the breach were in the applicant’s control, it has also given some weight towards the difficulties which the applicant faced at the time he took the decision to withdraw from his course, and the evidence that his mental state affected his ability to make sound decisions. Accordingly, the Tribunal has given this a little weight against cancelling the visa. The Tribunal has also considered the degree of hardship which would be faced by the applicant, and also gives this some weight against cancelling the visa. Under the circumstances, the Tribunal considers the applicant should be given one further opportunity to undertake his postgraduate studies.

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Frank Russo
    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.