Gill (Migration)

[2022] AATA 1683

Gill (Migration) [2022] AATA 1683 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jaspal Kaur Gill
Mr Jagdeep Singh Gill

REPRESENTATIVE:  Ms Narinderpal Kaur (MARN: 0955184)

CASE NUMBER:  2005536

HOME AFFAIRS REFERENCE(S):          BCC2019/5022071

MEMBER:Joseph Lindsay

DATE:18 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel Mrs Jaspal Kaur Gill’s Class TU visa.

The Tribunal has no jurisdiction with respect to Mr Jagdeep Singh Gill.

Statement made on 18 February 2022 at 12:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower level than visa condition – enrolment in higher-level course cancelled after non-commencement – enrolments in lower-level course in different subject area – discretion to cancel visa – health and homesickness – move to different city without appropriate enrolment there – member of family unit – automatic cancellation of second applicant’s visa with no jurisdiction to review – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348

Migration Regulations 1994 (Cth), Schedule 8, cl 8202(2)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 March 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant, Mrs Jaspal Kaur Gill. The other visa in respect to Mr Jagdeep Singh Gill was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant, Mr Jagdeep Singh Gill.

3. The applicants participated in an audio hearing with the Tribunal on 15 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

   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 (Cth) (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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant did not maintain enrolment in a registered course that, once completed, will 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.

8. The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree.

9. The applicants have provided a copy of the delegate’s decision record dated 13 March 2020 to the Tribunal. Jaspal Kaur Gill stated that the information in the delegate’s decision record dated 13 March 2020 was correct.

10. Accordingly, the Tribunal accepts that:

    -Jaspal Kaur Gill’s student visa was granted in respect to her enrolment in the Master of Education course at the University of Adelaide from 14 February 2018 to 31 December 2019;

    -the highest Confirmation of Enrolment (CoE) in relation to which the visa was granted was Master of Education which, once completed, would provide a Level 9 (Masters) qualification from the AQF;

    -on 20 March 2018 Jaspal Kaur Gill’s enrolment in the Masters course was cancelled by the education provider;

    -on 11 January 2018 Jaspal Kaur Gill enrolled in a Certificate III in Commercial Cookery course, Certificate IV in Commercial Cookery course and a Diploma of Hospitality Management;

    -the highest CoE that Jaspal Kaur Gill held at the time of the cancellation of her visa on 13 March 2020 was for a Diploma of Hospitality through Global College Australasia, and this enrolment is at AQF Level 5 (Diploma);

    -as Jaspal Kaur Gill was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) did not apply to her.

11. On the evidence before the Tribunal, the Tribunal finds that Jaspal Kaur Gill has not maintained her enrolment in a registered course that, once completed, will 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 the visa was granted. Accordingly, the Tribunal finds that Jaspal Kaur Gill has not complied with condition 8202(2)(b) and there are grounds for cancellation of her student visa under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

12. 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 Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

13. In the hearing, the Tribunal discussed the Jaspal Kaur Gill’s circumstances. Jaspal Kaur Gill explained that when she first came to Australia she developed a chest problem. She said she wanted to be in Perth rather than Adelaide so she moved to Perth. 

14. The Tribunal put to Jaspal Kaur Gill that she knew she was enrolled to do her Masters course at the University of Adelaide but that, regardless, she moved to Perth. Jaspal Kaur Gill said in response that she thought she could get an enrolment in a Master of Education in Perth.

15. The Tribunal asked Jaspal Kaur Gill what she did when she did not get an enrolment in a Master of Education in Perth. In response, Jaspal Kaur Gill said she enrolled in a cookery course. Jaspal Kaur Gill indicated that she was not aware that it was a breach of her visa conditions for her to discontinue her Master of Education course at the University of Adelaide and enrol in a cookery course.

16. The Tribunal asked Jaspal Kaur Gill if she thought as a visa holder that she should reasonably be expected to understand and comply with her visa conditions. In response, Jaspal Kaur Gill said “yes.”

17. The Tribunal put to Jaspal Kaur Gill that it may find that her failure to remain enrolled in her Master of Education course at the University of Adelaide was not due to circumstances beyond her control. In response, Jaspal Kaur Gill indicated that her failure to remain enrolled in her Master of Education course at the University of Adelaide was not due to circumstances beyond her control, but rather she moved to Perth because she thought it had better weather than the weather in Adelaide.

18. The Tribunal put to Jaspal Kaur Gill that in her response dated 10 March 2020 to the Notice of Intent to Consider Cancellation (NOICC) dated 4 March 2020, she blamed her lawyer for misadvising her. The Tribunal asked Jaspal Kaur Gill if she thought as a visa holder that it was ultimately her responsibility to understand and comply with her visa conditions. In response, Jaspal Kaur Gill said “yes.”

19. The Tribunal referred to a letter from Jaspal Kaur Gill dated 14 November 2021. The letter indicated that Jaspal Kaur Gill was now living in Perth with her husband and baby. She said that she initially had chest problems, but that her issues regarding her chest problems had ceased. In the letter, she indicated that she came to Australia she did not like the weather in Adelaide. She said she was also homesick when she was in Adelaide, which was why she wanted to go to Perth as she also had a family member there. Jaspal Kaur Gill said she never actually commenced her Masters degree. She said she did not get proper guidance from a migration agent. Jaspal Kaur Gill said she completed her commercial cookery and hospitality management courses. When asked what her pregnancy in 2020 had to do with her failure to commence her Masters course in 2018, Jaspal Kaur Gill admitted in response that her pregnancy in 2020 did not have anything to do with her failure to commence her Masters course in 2018.

20. When the Tribunal asked Jaspal Kaur Gill what the issue of COVID-19 had to do with her failure to commence her Masters course in 2018, Jaspal Kaur Gill said that there were travel restrictions in place and she had no one to help her look after her baby. However, she then admitted in response that COVID-19 did not have anything to do with her failure to commence her Masters course in 2018. However, Jaspal Kaur Gill said she now would like to complete her Masters degree and then go back to India.

21. When the Tribunal asked Jaspal Kaur Gill about her claims that she was depressed, she ultimately admitted that she never had a medical diagnosis of depression, and she has never been never undertaken any medical treatment for any mental health issues.

22. When the Tribunal asked Jaspal Kaur Gill about the medical information in respect to Ms Balvir Kaur who is 86 years old, Jaspal Kaur Gill said that this was in reference to her grandmother who had experienced some illness. She said she went back to India to see her sick grandmother. However, the Tribunal put to Jaspal Kaur Gill that the information about her grandmother’s illness was dated 4 November 2019, which was a long time after she ceased her enrolment in her Masters course in 2018. In response, Jaspal Kaur Gill said that she just wanted to provide information about where she travelled.

23. When the Tribunal asked Jaspal Kaur Gill about the information in respect to the property documents, she said she was trying to show she could pay for her student fees.

24. When the Tribunal asked Jaspal Kaur Gill about the information in respect to her father-in -law’s health information from 2021, she said it was relevant to show she had family issues, and her mother was also not well and her father-in-law has health issues.

25. When the Tribunal asked Jaspal Kaur Gill about the information in respect to her attempts to apply to do further study through Sheridan Institute of Higher Education as well as Murdoch University, she indicated that she did not have an enrolment.

26. In respect of the above, the Tribunal makes the following findings.

27. The Tribunal accepts that when Jaspal Kaur Gill initially moved to Australia she experienced health issues and that she was homesick. The Tribunal accepts that Jaspal Kaur Gill moved to Perth for the better weather and because she had a family member in Perth. The Tribunal accepts that Jaspal Kaur Gill never commenced her Master of Education course. The Tribunal accepts that Jaspal Kaur Gill has since had a baby, and while she has studied other courses she now wished to do a Masters degree. The Tribunal accepts that some of her family members had some health issues, and this may have caused her some stress. The Tribunal accepts that Jaspal Kaur Gill appears to be able to afford course fees and that she had made attempts to obtain a further course enrolment. The Tribunal accepts that while Jaspal Kaur Gill may feel that she has been depressed, she has never taken any medication for any mental health conditions and that she has not been diagnosed with any mental health conditions. The Tribunal gives these matters low weight in Jaspal Kaur Gill’s favour.

28. However, the Tribunal finds that Jaspal Kaur Gill was ultimately responsible to understand and comply with her visa conditions. The Tribunal does not accept that Jaspal Kaur Gill’s failure to remain enrolled in her Master of Education course at the University of Adelaide in 2018 had anything to do with COVID-19. The Tribunal does not accept that Jaspal Kaur Gill’s failure to remain enrolled in her Master of Education course at the University of Adelaide in 2018 was due to circumstances beyond her control. The Tribunal gives these matters heavy weight against Jaspal Kaur Gill.

29. The Tribunal is not satisfied that Jaspal Kaur Gill took reasonable steps to remain enrolled in a course at the specified AQF level (level 9) and therefore maintain compliance with her visa conditions.

30. In balancing the evidence, the Tribunal accepts that various instances can impact on a person’s well-being from time to time. However, in balancing all of the circumstances, the Tribunal is not satisfied that Jaspal Kaur Gill took reasonable steps to abide by the conditions of her visa. The Tribunal is not persuaded that Jaspal Kaur Gill’s circumstances were beyond her control. Accordingly, the Tribunal places heavy weight on this information against Jaspal Kaur Gill.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

31. The Tribunal accepts that the purpose of Jaspal Kaur Gill’s travel to and stay in Australia was initially to study, but the Tribunal finds that she has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal places no weight on this information.

    The extent of compliance with visa conditions

32. The Tribunal accepts that Jaspal Kaur Gill appears to have generally complied with her other visa conditions. Accordingly, the Tribunal gives low weight in Jaspal Kaur Gill’s favour in regard to this factor.

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

33. The Tribunal accepts that there may be some disappointment caused to Jaspal Kaur Gill and her family if her visa was cancelled. The Tribunal accepts that as a married woman aged around 30 years old with a child, Jaspal Kaur Gill may have challenges in undertaking further studies on her return to India. The Tribunal gives these matter some weight in her favour.

    Past and present behaviour of the applicant towards the Department

34. The Tribunal accepts that there is no evidence that Jaspal Kaur Gill has been uncooperative with the Department in the past, and gives this consideration some weight in her favour.

    Whether there would be consequential cancellations under s.140 of the Act

35. Jaspal Kaur Gill does have a dependant on her student visa, Mr Jagdeep Singh Gill, who would be affected if Jaspal Kaur Gill’s student visa was cancelled. Accordingly, the Tribunal gives this consideration some weight in Jaspal Kaur Gill’s favour.

    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

36. Jaspal Kaur Gill indicated she is aware of the legal consequences of the cancellation of her student visa and she is aware of the three-year exclusion period as a consequence of her student visa cancellation and that s.48 of the Act means that Jaspal Kaur Gill will have limited options to apply for further visas in Australia.

37. The Tribunal accepts that Jaspal Kaur Gill will need to make her own arrangements to obtain a visa to lawfully remain onshore and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chooses not to return to India.

38. The Tribunal accepts that Jaspal Kaur Gill will receive a three-year exclusion period as a consequence of her student visa cancellation. Section 48 of the Act means that Jaspal Kaur Gill will have limited options to apply for further visas in Australia.

39. The Tribunal also accepts that Mr Jagdeep Singh Gill will also be similarly subjected to legal consequences if Jaspal Kaur Gill’s visa is cancelled.

40. The Tribunal places some weight on this information in Jaspal Kaur Gill’s favour.

    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

41. The Tribunal asked Jaspal Kaur Gill if she feared anything in returning to India. In response she indicated that she had no fears if she went back to India. Accordingly, there is no indication that there would be a breach of any international obligations if Jaspal Kaur Gill’s student visa was cancelled. The Tribunal places no weight on this information.

    Any other relevant matters

42. In respect to whether there were any other relevant matters she wished to discuss, Jaspal Kaur Gill indicated there was no further matters to raise.

    Conclusion

43. In balancing the circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

44. The Tribunal affirms the decision to cancel Mrs Jaspal Kaur Gill’s Class TU visa. The Tribunal has no jurisdiction with respect to Mr Jagdeep Singh Gill.

    Joseph Lindsay
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will 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; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.