CHAWLA (Migration)

[2019] AATA 4173

CHAWLA (Migration) [2019] AATA 4173 (5 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Aakash Chawla

CASE NUMBER:  1719961

HOME AFFAIRS REFERENCE(S):     BCC2017/2083821

MEMBERS:Dr Jason Harkess

DATE:5 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and in its place substitutes a decision not to cancel the visa

Statement made on 05 September 2019 at 5:00pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-payment of fees – significant period of non-enrolment – purpose of visa not fulfilled – compelling need to remain in Australia – physical and mental well-being of applicant’s wife – 4-months pregnant – stability of the family unit – 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. The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 29 August 2017 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted 17 September 2014 with an original expiry date of 30 August 2017, providing almost 3 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

HEARING OF APPLICATION

1. The Tribunal convened a hearing to consider the merits of the Applicant’s case on 5 September 2019. The Applicant appeared at the hearing to give evidence and present arguments by video-link.

2. For the following reasons, the Tribunal has decided to set aside the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa requires that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 1 November 2016 to 29 August 2017 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to almost 10 months during which the Applicant was alleged to be in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously been enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course of study since 1 November 2016.

4. The Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant on 14 August 2017, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant responded to the NOICC in writing on 18 August 2017 by his registered migration agent. The Applicant requested an additional 5 days to gather information and documents before he would then fully respond to the allegations. The Department acceded to the request and allowed the Applicant until 28 August 2017 to submit a response to the NOICC. The Department received no further correspondence from the Applicant or his migration agent on or before 28 August 2017. Effectively, this meant that the Applicant did not provide any substantive response to the NOICC. Accordingly, the delegate moved to cancel the Applicant’s visa on 29 August 2017.

6. At the hearing before the Tribunal on 5 September 2019, the Applicant admitted that he was not enrolled in a registered course of study for the period alleged by the delegate.

7. The Tribunal is satisfied that the delegate was correct in finding that the Applicant had breached condition 8202(2)(a) of his student visa for the period of time that was alleged.

Consideration of Discretion to Cancel Visa

1. 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 the Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (‘PAM3’, ‘General Visa Cancellation Powers’). The matters that ought to be considered are specifically listed in PAM3 as follows:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

1. At the hearing before the Tribunal, the Applicant explained the circumstances giving rise to his cessation of enrolment on 1 November 2016. He said that he had just completed his first semester of his Bachelor of Commerce course and had received notice that he had failed 3 out of the 4 units that he had been studying. When it came time to pay for his next semester’s tuition fees, the Applicant stated that he had decided not to pay. The Tribunal inquired as to why he made that decision. The Applicant stated that he did not have the money to pay for the fees. According to the Applicant, the sum that was due was $4,800.

2. The Applicant further explained that his father’s business at the time had incurred significant losses. He depended on his parents to pay for his tuition fees when they fell due. However, he agreed with his father that payment could be delayed given the difficult financial circumstances that his parents were having to deal with in India at the time.

3. Notwithstanding that agreement he had with his father, the Applicant admitted that he never sought the agreement from his course provider to defer his tuition fees debt. He admitted that he never approached staff at his course provider to advise them of his difficult financial circumstances and to negotiate a payment plan. He simply chose not to pay his tuition fees. He made the conscious decision to let his enrolment lapse, and so he began to breach his visa, day by day, for a 10-month period. During this period of non-enrolment, the Applicant continued to work 20 hours a week.

4. The Applicant has not provided any kind of satisfactory explanation for his failure to remain enrolled in a registered course of study for the 10-month period. The need to maintain the financial capacity to pay tuition fees when they fall due remains an ongoing obligation for international students. The Tribunal finds that the Applicant made a conscious and deliberate decision to breach his visa and that he had no legitimate basis for doing so. It is a significant factor that weighs in favour of cancelling his visa.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. That purpose was effectively frustrated when the Applicant chose to cease studying without any legitimate reason for doing so. This is a significant factor weighing in favour of a decision to cancel his visa.

2. The difficulty with this case, however, concerns the immediate need for the Applicant to remain in Australia. The Applicant stated in evidence that he is married. His wife is also in Australia on her own visa which remains valid. Her visa is a Subclass 485 visa, this visa having been granted following her completion of a Masters of Accounting degree in Australia. The Applicant stated that his wife is currently undertaking an internship in Australia so that she becomes professionally qualified as an accountant. The Subclass 485 visa of the Applicant’s wife is due to expire on 22 October 2020. The Tribunal has verified this information with the Department’s records. The Tribunal therefore accepts the Applicant’s evidence.

3. In the course of the hearing, the Tribunal also disclosed that his wife is over 4 months pregnant. It is their first child. The Applicant is very excited that he is going to be a father and that their first child is a boy. The Applicant’s wife is due to give birth in February 2020. The Tribunal also accepts this evidence.

4. The Tribunal considers that there is an immediate and compelling need for the Applicant to remain with his wife in these circumstances. The Tribunal has considered that it is possible, following cancellation of his Subclass 573 visa, for the Applicant to apply for a Subclass 485 visa in his capacity as the spouse of the primary visa holder. However, there are uncertainties associated with this process and the Tribunal cannot pre-empt the outcome of such an application, were one to be made. The Applicant may have to depart Australia in order to meet the minimum eligibility criteria to make such an application. He would have to leave his wife, or take her with him, for the purposes of doing so. In the circumstances of her current pregnancy and internship as an accountant, neither option presents itself as a sensible solution to the predicament that the Applicant has created.

5. For the avoidance of doubt, the Tribunal’s concern arises primarily out of concern for the physical and mental well-being of the Applicant’s wife, and the need to maintain the stability of the family unit. A cancellation of the Applicant’s visa may give rise to significant disruption for the family at what is obviously a very critical point in time for them. It is for this reason that the Tribunal has ultimately decided that the Applicant’s Subclass 573 visa should not be cancelled.

Extent of Applicant’s Compliance with Visa Conditions

1. The Applicant’s breach of his visa for a continuous period of approximately 10 months represents a significant proportion of the total visa grant period. Because the Applicant has not provided a satisfactory explanation for this breach, this is also a significant factor that weighs in favour of cancelling his visa. There is no material before the Tribunal that suggests he has not complied with other visa conditions of this visa or of previous visas.

Hardship

1. The Tribunal has given consideration to the possibility that the Applicant may suffer some hardship if his visa is cancelled. The most significant hardship that he might face has already been alluded to. There will be uncertainty with his status in Australia at a time when his wife needs a great deal of certainty. She is pregnant. She should not have to suffer the stress of fearing that the Applicant may be forced to leave Australia while she continues to reside here during the currency of Subclass 485 visa. She appears not to have made the same mistakes as the Applicant. She should not be forced to have to make the difficult decision of either staying in Australia or leaving with her husband at this critical period in her life.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled. However, for reasons already outlined above, the Applicant’s wife will be significantly affected by a decision to cancel his visa.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met.

2. The Tribunal notes that he will not face the same three-year exclusion period in relation to an application for a Subclass 485 visa, were he to make such an application connected with his wife’s current visa. However, there are unknown contingencies associated with such an application and the Tribunal does not consider it appropriate in this case to force the Applicant and his wife to navigate such contingencies at this critical time in their lives.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal has formed the view that the Applicant’s visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member