Garg (Migration)

[2020] AATA 1445

Garg (Migration) [2020] AATA 1445 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Himanshu Garg

CASE NUMBER:  1932804

DIBP REFERENCE(S):  BCC2019/3284585

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 March 2020 at 11:50 am (VIC time)

DATE OF WRITTEN RECORD:                17 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 April 2020 at 12:01pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower level than visa requirement – enrolment at original level cancelled – enrolment in lower-level courses in different subject area – discretion to cancel visa – claim to have been unaware of condition – intention to progress to original level – father’s health – 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 Home Affairs on 13 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 20 March 2020 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 13 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 the applicant failed to maintain enrolment in a registered course that once completed would provide a qualification from the Australian Qualifications Framework, AQF, at the same level as or at a higher level than the registered course in relation to which the visa was granted. The issue in this case is whether that ground for cancellation is made out and if so whether the visa should be cancelled.

4. The applicant appeared before the tribunal on 20 March 2020 to give evidence and present arguments. 

5. For the following reasons the tribunal has concluded that the decision to cancel the applicant’s visa ought to 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 of 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(2)(b) states that the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework 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 Bachelor of Accounting, which is an AQF Level 7 course.  Information available to the Department in the Provider Registration of International Student Management System (PRISMS) indicated that on 6 July 2017 the applicant’s enrolment in a Bachelor of Accounting was cancelled by the education provider and the applicant has not maintained enrolment or been enrolled in an AQF Level 7 course since this date.

9. PRISMS indicated that the highest confirmation of enrolment the applicant held thereafter was for a Certificate III in commercial cookery, a Certificate IV in commercial cookery and a Diploma of Hospitality and Management.  The Diploma enrolment is at an AQF Level 5. 

10. As the applicant was not enrolled in the course at the AQF Level 9 Master’s Degree or Level 10 Doctoral Degree, the circumstances of clause 8202(3) does not apply to him.

11. On 18 October 2019 a Notice of Intention to Consider Cancellation of Visa was sent to the applicant.  The applicant did not respond to the Notice of Intention to Consider Cancellation.  At the hearing on 20 March 2020 the applicant admitted he had breached his visa conditions and informed the tribunal that it was an honest mistake, that he was unaware of this particular visa condition as it applied to his particular visa.  He acknowledged that he was not enrolled in AQF Level 7 qualification but that he informed the tribunal it was his intention, at the completion of his current Diploma of Hospitality Management course, to do a Bachelor of Hospitality at the conclusion of that course, which would be a AQF Level 7 course.

12. The applicant further informed the tribunal that although he informed the Department of an email address which he was contactable at for the purpose of being sent the Notice of Intention to Consider Cancellation, that on or around that time the Notice was sent, his father was gravely ill at the time and that he was not diligently checking his email in-box at the time and so that is the reason why he did not respond to the Notice, because he was concerned with his father’s welfare at the time.  The tribunal considers that to be a reasonable explanation for failure to respond to Notice of Intention to Consider Cancellation.

13. Based on the matters set out above the tribunal finds that the applicant has not complied with sub-clause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as or higher level than the registered course in relation to which the visa was granted. 

14. 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 advice manual.

15. As to the applicant’s purpose for his travel and stay in Australia, the applicant was granted the Sub-Class 500 Higher Education Sector Student Visa on 9 July 2017 on the basis that he was enrolled in a higher education level 7 registered course being a Bachelor of Business or Bachelor of Accounting degree.  The purpose for which the visa was granted ended at least on 6 July 2017, which is the date that the applicant’s enrolment in the Bachelor course was cancelled.

16. On 14 March 2018 the applicant obtained suite of enrolments hospitality courses, including a Diploma of Hospitality Management and a Certificate III and IV in Commercial Cookery.  The highest enrolment for these courses was at an AQF Level 5 level and it is clear the applicant has not been enrolled in a course at the AQF Level 7, Bachelor degree level, since 6 July 2017.  The applicant was granted the visa to study a Higher Education level course in Australia and it was expected by the Department, on the issuance of that visa, that he would maintain that enrolment.  However, it is clear that after he ceased his studies in the Bachelor course on 6 July 2017, he failed to maintain enrolment in a course at the same level or higher level than the course for which the visa is granted.

17. The tribunal has had regard to various academic documents submitted by the applicant which quite clearly demonstrate that he had successfully undertaken his Certificate III in commercial cookery and the Certificate IV in commercial cookery.  The tribunal also takes into account and has regard to the fact that the applicant has given evidence that he wishes to undertake a Bachelor of Hospitality after completion of his current AQF Level 5 suite of courses.  However, it is clear that at the time of this decision the applicant has not maintained enrolment in an AQF Level 7 course since 6 July 2017, therefore the purpose for which the visa was granted ended on that date.

18. Whilst the tribunal finds that the applicant has clearly demonstrated his primary purpose for being in Australia is for the purpose of study, the tribunal places significant weight on the fact the purpose for which the visa was granted ended on 6 July 2017 and has not been complied with since that date.  The tribunal gives this some weight in favour of the visa being cancelled.

19. As to the extent of the applicant’s non-compliance with the conditions subject to which the visa is granted, it is clear that the applicant has not complied with Condition 8202(2)(b) of his student visa when he failed to maintain enrolment in a full time registered course that once completed would provide a qualification from the AQF that is at the same level as or at a higher level than the registered course in relation to which his visa was granted.

20. It is clear that the applicant has not been enrolled in a higher education level course of study for a period of over 30 months.  The tribunal considers this a reasonable period of time for the applicant to undertake action to remedy the situation or make alternative plans to depart from the country.  The tribunal also considers it reasonable to expect the applicant to be aware of the conditions that are attached to the grant of a student visa and the tribunal considers it to be reasonable for an applicant for a student visa to be aware that condition 8202(2)(b) is imposed upon the visa.  A visa holder ought to be aware that he must maintain enrolment in a course at the same level or higher level than the course for which the visa was granted.

21. The applicant gave honest and candid evidence that it was simply a genuine and honest mistake that he did not maintain enrolment in the correct AQF Level course as he was not aware of this being a condition attached to his visa.  He gave honest and candid evidence that he did not contact the Department of Immigration to change his visa upon changing his course, because he was not aware of the condition 8202(2)(b).  I acknowledge there was no ill intent of the applicant’s behalf or breaches of other visa conditions, however, as I set out above, it is reasonable to expect visa holders to be cognisant of the conditions that attach to the grant of a student visa.

22. I give these considerations some weight in favour of cancelling the visa.   

23. As to the degree of hardship that may be caused to the applicant if his visa is cancelled, the tribunal notes that notwithstanding the applicant did not respond to the Notice of Intention to Consider Cancellation, the tribunal takes into account the applicant’s candid evidence in which he spoke of the distress that would be caused to him if he had to return home to his family in circumstances where he was unable to complete his studies.  The tribunal also takes into account the applicant’s evidence that it is his desire to obtain qualifications in the hospitality field, that it is his desire to complete his studies in the hospitality field in Australia and to undertake and complete a Bachelor of Hospitality in Australia for the purpose of opening up a business in that field with his family upon his return to India.

24. The tribunal takes these matters into account and acknowledges that the applicant would indeed suffer some hardship as a result of the cancellation of the visa and it indeed acknowledges that the applicant may suffer some financial difficulty if his visa were to be cancelled because the subjects that he has paid for to date would be wasted.  However, there is no evidence of any specific hardship that may be caused to family members as a result of the cancellation, nor is there any evidence before the tribunal to suggest that there are other persons dependent upon the applicant’s visa in Australia.

25. I give the hardship that would be suffered by the applicant minor weight in favour of not cancelling the visa. 

26. As to the circumstances in which the grounds for cancellation arose, I have already set these out at length above.  The circumstances in which the grounds for cancellation arose occurred when the applicant failed to maintain enrolment in a registered course that once completed would provide him with the 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.

27. According to PRISMS, on 6 July 2017 the education provider reported the cancellation of the applicant’s enrolment in his Bachelor degree and the applicant acknowledges that he has not been enrolled in a Higher Education Level 7 registered course since that date.  It is clear, based on the evidence at hearing, that the applicant made a genuine and honest mistake in not maintaining enrolment in an AQF Level 7 course.  The applicant genuinely and candidly acknowledged that he was not aware of the particular visa condition.  He gave evidence that he was only 22 years at the time, he did not know about the rules that attached to his visa and that he admitted he made a genuine mistake.

28. However, as I have set out above, it is reasonable to expect visa holders to be aware of the conditions that attach to their visa and indeed the responsibility of a student visa holder to contact the Department before they take any action to change their circumstances such as actually ceasing studies without obtaining alternative enrolment or commencing further studies at a different AQF level.  It is important that the Department be contacted by visa holders, to clarify any consequences that may result in such a change.

29. The tribunal considers it reasonable for the applicant to be aware of these circumstances and reasonable for the applicant to contact the Department in circumstances where he wished to change his studies to clarify the position that attached to his visa.  Instead of taking these steps the applicant continued to remain in Australia in non-compliance with his student visa by studying at the AQF Level 5 level.  Notwithstanding that I wish to reiterate this was not done in any bad faith on the part of the applicant, however it is clear that being aware of conditions that attach to one’s student visa is a matter reasonably within the control of an applicant. 

30. I therefore find the reason for the breach to be reasonably within the control of the applicant and I give this weight in favour of cancelling the visa.

31. As to the applicant’s past and present behaviour towards the Department, I have already set out above the applicant’s reasons for failure to respond to the Notice of Intention to Consider Cancellation.  I accept those reasons.  I also find there has been no bad faith on the part of the applicant in his previous dealings with the Department and I give this reasonably good behaviour some minor weight in favour of not cancelling the visa. 

32. 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 gives this no weight in favour of, or against, cancelling or not cancelling the visa.

33. If the visa is cancelled the applicant will become an unlawful citizen and may be liable for detention under section 189 of the Act and removal from Australia under section 198 of the Act, he has not volunteered to depart Australia.  The applicant rules would affected by section 48 of the Act which may prevent him from applying for certain visas while in Australia.  And public interest criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future.

34. However, these are mandatory and the intended consequences of the legislation, and given that the circumstances giving rise to the breach were reasonably within the control of the applicant, I do not consider these consequences to be manifestly unfair in the circumstances and the tribunal therefore does not give this factor any weight in favour of not cancelling the visa.

35. There is no evidence before the tribunal to indicate that the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before me, I give this no weight for or against cancelling or not cancelling the visa.

36. There are no other further matters of relevance before the tribunal for consideration. 

37. 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.  It is also clear that the considerations that I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

38. Considering the circumstances as a whole, the tribunal concludes that the visa should be cancelled. 

39. This is an oral decision made at 11.50 am on 20 March 2020.  This now concludes the hearing and the applicant is free to leave.

40. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member