Dhillon (Migration)

[2019] AATA 1639

Dhillon (Migration) [2019] AATA 1639 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhmanpreet Singh Dhillon

CASE NUMBER:  1815508

HOME AFFAIRS REFERENCE(S):           BCC2018/194546

MEMBER:David Thompson

DATE:13 May 2019

PLACE OF DECISION:  Perth

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 13 May 2019 at 5:28pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – kidney problems – life-threatening condition – extensive and compelling documentary evidence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant, having been granted a Subclass 573 student visa, was not during the period 25 July 2017 to 16 March 2018 enrolled in a course of study that was a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A, and for that reason failed during that period to comply with a condition of his visa. The condition in question was condition 8516. 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 10 April 2019 to give evidence and present arguments. As at the time of the hearing the applicant was offshore without a right of return, he participated in the hearing by telephone.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance 8516 attached to the applicant’s visa.

7. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

8. It is alleged the applicant did not continue to satisfy either the criterion provided in subclause 573.223(1A) of Schedule 2 of the Migration Regulations 1994, or the criterion provided in subclause 573.231, in each case as they applied to the applicant at the date of his visa application. Subclause 573.223(1A) provides that an applicant must at the time of application be an eligible higher degree student (that is, enrolled in a principal course of study for the award of an advanced diploma in the higher education sector, a bachelor’s degree, or a masters degree by coursework). Subclause 573.231 provides that an applicant must, if subclause 573.223(1A) does not apply, be enrolled in or the subject of a current offer of enrolment in, a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and in force at the time the application was made.

9. At the outset of the hearing, the allegation of non-compliance, as noted above, was put to the applicant, and he was asked whether the allegation was true or not.  The applicant readily admitted that he had not been enrolled in a bachelor’s or master’s degree course, or indeed any course in the higher education sector, between 25 July 2017 and 16 March 2018.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

11. 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 Instructions (previously known as PAM3) ‘General visa cancellation powers’.

    Background

12. The applicant is a citizen of the Republic of India.  He was granted a subclass 573 student visa to study for the degree of Bachelor of Information Technology on 30 March 2015.  He arrived in Australia on 11 April 2015 and commenced a University English Bridging Course 2. His Bachelor of Information Technology studies were due to start in the second semester of that year, but on the applicant’s evidence given at hearing he started attending lectures in that course in the first semester of 2015.

13. The applicant finished his University English Bridging Course 2. However, the applicant’s PRISMS record (which was put to him in detail and strictly in accordance with the requirements of s. 359AA of the Migration Act 1958) shows that his enrolment in his Bachelor of Information Technology course was cancelled by reason of non-commencement of studies, and that in the second semester of 2015 (when his Bachelor of Information Technology studies were supposed to have commenced) he enrolled in and completed a Diploma of Management.

14. The applicant attributes this change in course of study, and the considerable difficulty he experienced in his studies thereafter, largely to ill-health combined with the stress of studying at a higher level than he had previously experienced in a foreign country. 

15. On the applicant’s evidence given at hearing, he began to develop health issues whilst he was undertaking his University English Bridging Course, but he did not pay much attention to them at that stage.  However, he soon began to suffer from frequent abdominal pains and other symptoms such as sleepiness and lethargy throughout the day. Before the end of 2015 he applicant’s symptoms came to include vomiting.  It was, he said, his declining health that convinced him to seek advice regarding his enrolment in the Bachelor of Information Technology course.  An education agent, whose name the applicant could not remember, recommended that he undertake a less taxing course.  As a result, the applicant enrolled in a Diploma of Management course, as mentioned above.  The Diploma of Management was the last course that the applicant was able to complete.

16. On 1 January 2016 the applicant presented at the Armadale Hospital emergency department, as he was unable to see his general practitioner.  He was then taken by ambulance to Royal Perth Hospital, where he was put onto dialysis for the first time.  The applicant was diagnosed as in end stage renal failure, and thereafter spent considerable time in hospital on dialysis. 

17. The applicant’s evidence was that he nonetheless attempted to continue studying in courses offered at a level he could reasonable expect to undertake given his health.  He enrolled in a package course in the vocational education and training sector consisting of Commercial Cookery Certificates III and IV, and a Diploma of Hospitality.  However, at around the same time his doctors advised him that he required a kidney transplant as soon as possible.  The process of seeking a suitable donor began, complicated by the fact that the applicant has a relatively rare blood type. It transpired that his maternal aunt was willing to donate one of her kidneys for transplant, and the applicant returned to India for the surgery.

18. The applicant’s surgery was successful and he returned to Australia after approximately 3 months.  He was not fully convalesced and continued medical treatment in Australia. It should be noted at this point that the applicant has provided full documentary verification of his health issues during this period, and the Tribunal accepts his evidence regarding the course of his kidney disease, surgery and convalescence.

19. During the remainder of 2016 the applicant attempted to complete the Commercial Cooker/Hospitality package in which he had enrolled.  On the applicant’s evidence it is clear that he was not fully fit to do so and had difficulty with some of the workplace experience components of the course.  The applicant stated at hearing that he had finished a Commercial Cookery Certificate III course, and undertook to provide a copy of his course record or certificate of completion after the hearing.  The Tribunal has received that document, which notes that whilst the applicant achieved many of the competencies required by the course, he did not achieve them all. The applicant does not appear to have finished this course. 

20. The applicant persisted with his attempts at the Commercial Cookery/Hospitality package course, unsuccessfully.  In the latter part of 2018 he also sought and obtained enrolment in Bachelor of Business programmes.  The first of those enrolments marks the end of the period recorded in the Department Delegate’s decision to cancel his visa as the period during which the applicant failed to comply with condition 8516 on his visa.

21. The Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) on 9 March 2018.  On 24 May 2018, after considering the applicant’s submissions in response, the Department informed the applicant of its decision to cancel his visa.

22. In January 2019, the applicant returned to India.  Having done so whilst on a class WE bridging visa, the applicant has no automatic right of return to Australia.

    Exercise of discretion

23. There is nothing in the evidence to suggest that the applicant came to Australia with any intention other than to complete the Bachelor of Information Technology course in which he initially enrolled. Indeed, the applicant has stated that he wishes to return to Australia and complete the course of study in hospitality on which he has embarked, in order to obtain an Australian qualification. The applicant has not suggested that he needs to return to Australia for any other reason, and there is no evidence before the Tribunal of any other such reason. This factor weighs strongly against exercising the discretion to cancel the applicant’s visa.

24. The applicant relied heavily, both in his response to the Department’s NOICC and in his written and oral submissions to the Tribunal, on his kidney problems.  Those problems first began to trouble the applicant in 2015 and (as has been stated above) came to a head in January, requiring stays in hospital, regular dialysis, and finally a return to India for a kidney transplant and convalescence.  The applicant has provided extensive and compelling documentary evidence of these matters, and the fact and seriousness of his life-threatening condition in early 2016 cannot be doubted.  The applicant’s position is that his worsening condition in 2015 forced him to abandon his studies in the Higher Education sector, which he could not continue, and undertake studies in the Vocation Education and Training (VET) sector, which he and his advisors (still ignorant of the nature of his illness) considered he could reasonably complete. 

25. As was noted above, the applicant returned to Australia late in June 2016 and attempted to take up his hospitality studies again.  His evidence at hearing was (subject to the issue regarding completion of his Certificate III in Commercial Cookery, noted in paragraph 19 above) that despite his best efforts he was not well enough to complete these courses, such that his enrolments were cancelled.  It was not, of course, the applicant’s failure to complete these courses which amounted to a breach of his visa condition, but rather the fact that in the relevant period he was either not enrolled in any course of study, or enrolled only in VET-level courses.  Nonetheless, the Tribunal accepts that the applicant’s illness was the cause of his breach of visa conditions, and that this was a matter that was genuinely outside of his control.  This factor weighs very heavily in favour of setting aside the Department’s decision.

26. On the other hand, it must also be recognised that the applicant’s breach was extensive.  The Tribunal asked the applicant at hearing whether he had contacted or attempted to contact the Department at any time to try and regularise his position.  The applicant’s answer was that he did not.  He said that he did not realise that he was obliged to remain enrolled in the Higher Education sector, and had not appreciated that he should contact the Department if he ceased to be enrolled in a course in that sector. Visa applicants must undertake to observe and comply with any conditions placed on their visa, and it is only reasonable to expect that those seeking a visa to study in Australia should acquaint themselves with the conditions under which a student visa will be granted, and to take the initiative in contacting the Department if for any reason they are unable to comply with those conditions. This would ordinarily weigh strongly in favour of cancellation of a visa.  However, there is no evidence that the applicant’s misunderstanding of the requirements was anything but an honest mistake, and there is no evidence of any other failure to comply with visa requirements.  In view of these ameliorating circumstances, the Tribunal gives this factor only moderate weight in favour of cancellation.

27. There is no evidence that the applicant has failed to cooperate with the Department.  This factor weighs against cancellation to some extent.

28. There is no other person holding a visa by reason of the applicant’s visa. Affirming the Department’s decision to cancel the applicant’s visa would not, therefore, result in any consequential cancellation under s.140 of the Act. Nor is there any international obligation that would be breached if the Department’s decision to cancel were affirmed. These factors are neutral in this case, weighing neither for nor against cancellation of the applicant’s visa.

29. At hearing, the applicant gave evidence that the cancellation of his visa had caused him some financial hardship, in that he had needed to borrow money from friends. It was not entirely clear why the applicant had to do this, or why the need was caused by the cancellation of his visa as opposed to other factors (for instance, his illness).  However, the applicant also gave evidence that his friends were not pressing him for repayment. It may be accepted that the applicant would like to repay those who supported him financially at a very difficult time, but it is not clear how setting aside the Department’s decision and reinstating his visa would assist him to do so.  There is no evidence before the Tribunal that the Department’s decision to cancel the applicant’s visa has caused the applicant any other hardship, whether financial, psychological or otherwise, or any other person any form of hardship whatsoever. The Tribunal gives this factor no weight, neither for nor against the exercise of the discretion to cancel the applicant’s visa.

30. Cancellation of the applicant’s visa will not cause him to suffer any mandatory legal consequences. This factor weighs neither for nor against cancellation.

31. There are no other relevant matters disclosed on the evidence before the Tribunal, in the applicant’s written submissions to the Department or the Tribunal, or in the applicant’s oral submissions at hearing.

32. Considering the circumstances as a whole, the Tribunal concludes that the factors tending against exercising the discretion to cancel the applicant’s visa outweigh the factors tending in favour of cancellation. The applicant’s visa should not, therefore, be cancelled.

    DECISION

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

    David Thompson
    Member