Devgan (Migration)

[2020] AATA 1961

Devgan (Migration) [2020] AATA 1961 (31 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Uday Devgan

CASE NUMBER:  1934929

DIBP REFERENCE(S):  BCC2019/3389477

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         31 March 2020 at 10:26 am (VIC time)

DATE OF WRITTEN RECORD:                23 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 23 April 2020 at 3:13pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled at lower AQF level than visa condition – study difficulty, lack of course progress and mental health  – inquiry about deferral – cancellation of enrolment and enrolment in lower-level courses in different subject area – intention to progress to original level – unaware of visa requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 November 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 31 March 2020 at 10:26 am, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision dated 29 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 500 student visa under section 116(1)(b) of the Migration Act 1958. The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that, once completed, would 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.

4. The issue in the present case is whether that grant for cancellation is made out, and if so, whether the visa should be cancelled.  The applicant appeared before the tribunal on 31 March 2020 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the English and Hindi languages, although the applicant displayed an exemplary grasp of the English language.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(b) of Schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition, under section 116(1) of the Act, the visa may be cancelled.

7. Condition 8202, as it applies in this case, states that: the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework, AQF, that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

8. The applicant’s visa was granted for the purpose of studying a Masters of Professional Accounting at the Federation University of Australia, which is an AQF level 9 course.  Information available to the Department in the Provider Registration and International Student Management System, PRISMS, indicated that on 9 April 2019 the applicant’s enrolment in the Masters of Professional Accounting was cancelled by the education provider, and the applicant has not been enrolled in an AQF level 9 course since that date.

9. PRISMS indicated that the highest confirmation of enrolment the applicant held thereafter was for a Diploma in Hospitality Management.  This enrolment is at an AQF level 5. 

10. On 19 November 2019, a notice of intention to consider cancellation of visa was sent to the applicant.  By written response dated 26 November 2019 the applicant responded to the notice of intention to consider cancellation.  In that response the applicant stated as follows:  first, he said he did not know that changing his course would lead to the possible cancellation of his visa, and if he had known this beforehand, he could have taken another option; secondly he said he did not pursue his course in the Master’s Degree as he was finding it very difficult and he was not achieving satisfactory course progress with his course; thirdly he said he realised that it was not easy to study and stay in Australia on his own, as being an only child he had never been away from his family.  He said further that this situation led to a period of mental anguish, which contributed to his failure to pursue his studies; fourthly he requested that is visa not be cancelled so as to enable him to finish his studies in Australia and once he completes his studies, he said that he will go back to his home country to find a job, and for the purpose of making his parents happy.

11. At the hearing on 31 March 2020, the applicant acknowledged that he breached his visa condition and acknowledged that he was not enrolled in a Masters of Professional Accounting, which once completed would provide an AQF level 9 qualification.  The applicant informed the tribunal that he was enrolled in a Certificate III of Commercial Cookery, a Certificate IV of Commercial Cookery, and a Diploma of Hospitality Management.  The highest enrolment in that suite of packages is at an AQF level 5.

12. Based on that evidence, the tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course the same level as, or at a higher level than the registered course in relation to which the visa was granted.  Having found that the applicant has not complied with the condition of the visa, the tribunal must now 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.

13. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and matters in the Department’s Procedure Advice Manual, PAM3. 

14. As to the applicant’s purpose for travel and stay in Australia, during the application process for the student visa the applicant stated that his intended purpose for travel and stay in Australia was to pursue a Masters of Professional Accounting at the Federation University of Australia.  That is to say, the purpose of the applicant’s travel and stay in Australia was to provide him with a qualification from the Australian Qualifications Framework level 9.

15. According to PRISMS the applicant has not maintained enrolment in the registered course that is at the same level or at a higher level than the course in relation to which the visa was granted, and he has not held an enrolment of that nature since 9 April 2019.  The applicant claimed in his response to the notice of intention to consider cancellation that he wants to complete studies in Australia.  According to PRISMS the applicant does not hold a current or future enrolment in a registered course at the required AQF level for which the visa was granted.

16. In the applicant’s oral evidence at hearing he confirmed that he does not currently hold an enrolment for an AQF level 9 course, but that it is his intention to continue a bachelor level course and then a master level course after he finishes the diploma in which he is currently enrolled. 

17. Based upon that evidence, I find that whilst I acknowledge the applicant has demonstrated that his primary purpose for being in Australia is for the purpose of study, it is clear, based on that evidence, that the purpose for which the visa was granted ended on 9 April 2019 when the applicant’s enrolment in the Masters of Professional Accounting ceased. 

18. The tribunal places some weight on the fact that the applicant has been non-compliant with his visa condition for a period of approximately 12 months, and the tribunal affords this some weight in favour of cancelling the visa.

19. As to the extent of compliance with conditions attached to the applicant’s visa, it is clear that information before the Department and evidence given at hearing today establishes that the applicant has not held an enrolment in a registered course that, once completed, will provide him with 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 he has not maintained that enrolment since 9 April 2019.

20. The Tribunal acknowledges that there is no evidence before it of any other non-compliance with any other visa conditions; however, given the length of time the applicant has been non-compliant with his visa condition, the tribunal considers this to be reasonably substantial and affords this consideration some weight in favour of cancelling the visa.

21. The Tribunal turns now to the circumstances in which the ground for cancellation arose.  The grounds for cancellation arose when the applicant failed to maintain enrolment at the appropriate course level for which his visa was granted.  In the applicant’s response to the notice of intention to consider cancellation the applicant stated that he was simply not aware that changing his course would lead to possible cancellation of his visa.  The applicant stated that had he known, he could have taken another option.

22. In the applicant’s oral evidence at hearing the applicant gave candid and honest evidence that it was an honest mistake that he did not comply with his visa condition, as he simply did not know that this condition attached to his visa.  He said that he consulted a migration agent prior to changing his course, and the agent did not tell him that changing his course would be a breach of his particular visa condition.  The applicant stated further that because he did not know this condition attached to his visa, that is the reason why he did not contact the Immigration Department to change his visa status when he changed his course.

23. The Tribunal accepts that the applicant has not acted in bad faith with respect to the breach of this particular visa condition; however, as the tribunal explained to the applicant at the hearing, it is the responsibility of a student visa holder to contact the department before they take any action to significantly change their circumstances, such as ceasing studies without obtaining alternative enrolment, or changing courses, education provider, or not commencing further studies; and to clarify the consequences that may result from such a change. 

24. It is the responsibility of visa holders to be aware of the conditions that attach to their visas and the Department reasonably expects visa holders to be aware of the conditions that attached to their visas.  I therefore do not consider the failure to be aware of the condition that attaches to the visa, as a reason for the breach of the visa condition, to be a matter which is beyond the applicant’s control.

25. The applicant gave further evidence that due to a mental health condition that he was afflicted with, that this also contributed to the breach of the particular visa condition.  In the applicant’s response to the notice of intention to consider cancellation he said that he did not continue with his masters studies because he found the course very difficult.  He gave evidence at hearing that he was failing subjects; that on account of his failing subjects he took two sessions with the student counsellor at the Federation University, but that this did not particularly help him, and he still failed his subjects.  He said he sought advice from a teacher as to whether or not he could freeze his course or otherwise defer his course, but he was informed by his teacher that this was not available to him.

26. The applicant gave evidence that he was failing his subjects because he was suffering from a mental health condition at the time; that is to say it was suffering from, and has suffered from in the past, bouts of depression.  In support of that contention the applicant submitted two documents to the Tribunal. 

27. One document is an outpatient card dated 17 August 2012, which is a document which informs the tribunal that the applicant, on or around 17 August 2012, as a 17-year-old man, attended upon the Postgraduate Institute of Medical Education and Research Chandigarh, which is an Institute in his home country, and he attended upon the neurology department at that Institute for the purpose of having a scan of his brain.  The applicant informed the tribunal that he was having tremendous mental difficulties at the time, sleeping, and was having treatment for depression at that time.  That is the first document.

28. The second document is a certificate from the Friends Integrated Hospital dated 21 March 2020.  It is written by a Dr Vipin Sharma.  Dr Sharma is a practitioner at that hospital in the applicant’s home country.  That document provides that Dr Sharma has treated the applicant in the past for depression prior to 2017 and prior to the applicant entering Australia for the purpose of studying in Australia.  The tribunal notes that the applicant’s visa was granted on 28 October 2018, and this medical certificate issued by Dr Sharma indicates that he has treated the applicant for depression well before his arrival in Australia.

29. The applicant gave further evidence that he has not seen Dr Sharma since being in Australia, which is consistent with the fact that Dr Sharma is located in the applicant’s home country; and that he provided this certificate to the applicant for the purpose of the applicant producing it to the tribunal so as to demonstrate that he has had treatment for depression in the past.  The applicant informed the Tribunal that it was his depression which contributed to breach of his visa condition.

30. The Tribunal is of the view that notwithstanding the applicant has quite clearly suffered from mental health difficulties in the past, based on the evidence produced, it is not persuaded that the medical difficulties suffered by the applicant contributed to the particular breach of this visa condition because:  first, the medical documents produced are not produced at a time, or even remotely near the time, when the particular visa breach occurred; and the medical documents do not speak to the particular condition being suffered by the applicant as being the cause of his failure to be aware of a condition that attached to his visa. Thirdly, as the tribunal explained to the applicant, notwithstanding that it acknowledges he has had medical difficulties in the past, the applicant has acknowledged in his notice of intention to consider cancellation response, that the reason for his visa breach was that he simply did not know about the condition that attached to his visa, rather than due to any mental health difficulty.

31. Based on the above, the Tribunal is of the view that the applicant’s medical condition that he has suffered from, from time to time in the distant past, is not the cause of the breach of the visa condition, but rather the cause of the breach of the visa condition is simply that the applicant was unaware of the condition that attached to his visa.  On that basis and for those reasons the Tribunal is not persuaded that the reason for the breach of the visa condition in this case was occasioned by matters outside of the applicant’s control.  I give this significant weight in favour of the visa being cancelled.

32. As to any hardship that may result or flow to the applicant as a result of the visa cancellation, the tribunal acknowledges that the applicant has had some difficulty in the past with his studies, and acknowledges that he has taken steps to try and address the difficulties he has had in his studies in the past.  The Tribunal acknowledges that there would be some financial detriment to the applicant if he were not able to complete the course of study which he has currently embarked upon, although the Tribunal notes the current course of study that the applicant is undertaking is not in line with the visa purpose.

33. The applicant has acknowledged that there are no individuals in the country who are dependent upon his visa.  And on the basis of all those matters the tribunal acknowledges that some hardship will flow to the applicant as a result of cancellation; however, given that there are no family members in Australia impacted by the cancellation, and given that the reason for the breach is not a matter which was outside of the control of the applicant, the tribunal gives only minor weight in favour of not cancelling the visa due to hardship.

34. As to any legal consequences which might flow as a result or from the cancellation of the particular visa, if the visa is cancelled the applicant will become an unlawful citizen and may be liable for detention under section 189, and removal under section 198 of the Act if he does not voluntarily depart Australia.  The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia.  Public interest criterion 4013 may exclude him from being granted a visa for a specific period of time in the future.  However, these are mandatory and intended consequences of the legislation.

35. Given that the circumstances giving rise to the breach were not outside the control of the applicant, I do not consider this consideration to be manifestly unfair, and I therefore give this little weight against cancelling the visa. 

36. The applicant gave candid evidence that there are no persons depended upon his visa in Australia, and on that basis the tribunal is satisfied that this case is not a case that would engage Australia’s international obligations or would lead to a breach of Australia’s non-refoulment obligations, and I therefore give this information no weight for or against cancelling or not cancelling visa. 

37. The circumstances of this case are not such that any person’s visa would be consequently cancelled under section 140 of the Act.  The Tribunal therefore give this factor no weight for or against cancelling or not cancelling visa. 

38. As to whether there are any other relevant matters, the Tribunal acknowledges the applicant’s evidence in this case insofar as the steps he took to try and address his lack of progression in his Masters of Professional Accounting before that course was ultimately cancelled.  And the Tribunal acknowledges the fact that the applicant has responded promptly to the notice of intention to consider cancellation, and that there is no evidence before the Tribunal of the applicant being uncooperative with the department or departmental staff, and the Tribunal gives these matters some minor weight in favour of the visa not being cancelled.

39. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear, based on all the evidence set out above, the reasons for the breach of the visa condition were not matters that were outside of the control of the applicant. 

40. It is also clear that the considerations I have arrived at on examining and weighing all the evidence before me lean towards the visa being cancelled, and I so find.  Considering the circumstances as a whole, the tribunal concludes that the visa should be cancelled. 

41. The Tribunal affirms that the decision to cancel the applicant’s class TU visa. 

42. This is an oral decision made at 10.26 am on 31 March 2020.  This now concludes the hearing.

    DECISION

43. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member