Gurjinder Singh (Migration)

[2020] AATA 3479

Gurjinder Singh (Migration) [2020] AATA 3479 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. Gurjinder Singh

CASE NUMBER:  1930139

HOME AFFAIRS REFERENCE(S):          BCC2019/3200439

MEMBER:P. Adami

DATE:12 May 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 May 2020 at 4:46pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled in an approved course of study – approved course enrolment cancelled – new course at downgraded Australian Qualifications Framework level – applicant injured – series of unfortunate events – near completion of current studies – evidence of intention to return to home country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cl 500.611; Schedule 8, Visa Condition 8202

CASES

Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant is now a 22 year old Indian citizen. He arrived in Australia on 13 February 2018.

3. The applicant’s visa was granted on 1 February 2018. A delegate for the Minister determined that the applicant met the primary criteria for the grant of a student visa, which enabled the applicant to reside in Australia as a full time student.

4. The applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s116(1)(b) of the Act. The delegate concluded that the applicant had failed to comply with the condition of the visa that required the applicant to maintain enrolment in a registered course of study, that once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level or higher, than the course for which the visa had been initially granted.

5. Upon concluding that the applicant had not maintained his enrolment at the required level, the delegate considered all other relevant circumstances before concluding that the applicant’s visa ought to be cancelled. The delegate’s reasons are set out in their Record of Decision dated 22 October 2019, a copy of which was provided to the Tribunal on 24 October 2019 by the applicant when he filed his ‘Application for review’.

6. The issue in the present case is whether the ground for cancellation under s116(1)(b) of the Act is made out, that is, whether the applicant did not comply with a condition of his visa. If the Tribunal determines that the ground for cancellation is made out, the Tribunal must consider whether the applicant’s visa should be cancelled.

7. The applicant appeared before the Tribunal by telephone on 8 May 2020 to give evidence and present arguments.

8. The Tribunal is mindful that the applicant is not required to establish that the facts or grounds for cancellation do not exist, but the Tribunal must be satisfied that the facts or grounds for cancellation do exist. In Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 the Full Court of the Federal Court of Australia at [25] stated, “The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.” Further at [32], the Full Court stated, “A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The decision-maker must ultimately be satisfied that the ground for cancellation is established.”

9. 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

10. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. 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.

11. Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa-see Schedule 2, cl 500.611(1)(a) of the Regulations. Condition 8202 requires that the visa holder maintain enrolment in a registered course of study 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 the visa had been granted.

12. The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course, the extent of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.

13. The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason to change their course of study, they are specifically prohibited from 'downgrading' to a simpler course on the AQF hierarchy. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia's student visa program is robust.

    Has the Applicant Failed to Comply with Condition 8202(2)(b)?

14. The delegate in their decision notes that the applicant was granted a student visa in relation to a Diploma in Information Technology and a Bachelor of Information Technology at the Queensland University of Technology (‘QUT’). These studies were to commence on 14 February 2018 and to conclude on 31 December 2020. The Bachelor’s degree which is the higher level course and is the degree for which the visa was granted at AQF level 7.

15. The delegate states in their decision that the applicant’s enrolment in the Bachelor course was cancelled by QUT on 5 July 2018 and that on 2 September 2019, the applicant obtained an enrolment in the Diploma of Automotive Technology at the Skills Institute Australia. The delegate concludes this on the basis of the Department of Education and Training’s ‘Provider Registration and International Student Management System (‘PRISMS’).

16. The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) ('the ESOS Act'). It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student's enrolment status and 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.

17. The delegate found that the applicant had breached Condition 8202(2)(b) of his visa because he had downgraded his enrolment from an AQF Level 7 course to an AQF Level 5 course, 2 levels below which the visa had been granted.

18. On 3 September 2019, the Department of Home Affairs wrote to the applicant notifying him of its intention to consider cancelling his visa (‘the NOICC’). The NOICCC set out particulars of the matters that have been summarised above, and put the applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.

19. On 15 September 2019, the applicant responded to the NOICC. In his response the applicant did not dispute that he was in breach of his visa condition 8202, although he sought to explain the circumstances that gave rise to that happening. In his evidence given to the Tribunal and in his submissions filed with the Tribunal (dated 30 April 2020) in relation to this review, the applicant agreed that he had breached Condition 8202 “unwillingly”.

20. On the evidence before the Tribunal, the Tribunal concludes that the applicant breached Condition 8202(2)(b) of his visa.

    Consideration of the Discretion to Cancel the Visa

21. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including 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’.

22. The matters that ought to be considered are specifically listed in PAM3 as follows:

    (a)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;

    (b)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);

    (c)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;

    (d)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;

    (e)the Applicant's past and present behaviour towards the Department (e.g. whether they have been truthful and co-operative in their dealings with the Department);

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

    (g)whether there are mandatory legal consequences arising from a decision to cancel the visa;

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

    The Applicant’s Evidence

23. The applicant sent a comprehensive response to the NOICC, and likewise his submissions to the Tribunal dated 30 April 2020 are also comprehensive. The applicant explains in his own words:-

    (a)As mentioned in the letter to the immigration and documentation and evidence provided to the department, I have provided my medical certificate from the accident and the relative documents.

    (b)As I was only of age 19 years and did not have any emotional support and support from the university as such to cope with the situation, I made my decision based on my own judgement based on the current situation of that time.

    (c)I had some emotional distress in the beginning and I had difficulty, for which I may not be able to provide any evidence as any reasonable person can go through the same situation after leaving home country and going away from the family for the very first time. I also had to face stress due to my father’s ill health and my own situation as newly arrived person who had trouble to cope with studies and had no help from university despite of many requests for the same at University.

    (d)I relied on the advice of the industry professional registered in Australia by the Australian authorities. I was misguided by the person I relied upon for the professional and accurate advice in relation to my situation, which any reasonable person in my situation would have done assuming the professional is legally responsible to provide the accurate and favourable advice in situation presented to the professional.

    (e)I changed my course to the advised course by my agent. I relied on the agent first and then I put my faith on the education provider based on the assurance they provided to save a higher education COE for me if I get enrolled in the course with the college (New England College).

    (f)Why I could not secure my COE for higher education was due to the fact that I had cancellation in my hand and no university was ready to give me a COE when requested and visited universities and when went through the agent I was given false hope and I had no reason for not believing the agent.

    (g)I believe university for the mere reason of keeping my fee, which was deposited in advance (AUD 5000.00), they kept the correct information hidden from me. Which not only resulted in emotional loss, stress and financial loss, but it also restrained my future possibilities of achieving and securing a qualification for brighter career.

    (h)I would like to take complete responsibility of my actions I have taken in my pursuit to correct my mistake where I was unable to secure my COE for higher education and I fell in to the trap of Agent and greedy college staff and lost not only valuable time and money only but suffered emotional loss too. I am not advocating any wrongdoing if I would have done due to circumstantial events happened one after another in my course of study.

    The applicant filed material which evidenced his admission to hospital for a lacerated liver as the result on of motor vehicle accident, and several general practitioners’ medical certificates evidencing the impact of this accident and of his general mental health status.

    The Purpose of the Visa Holder’s Travel and Study in Australia, whether the Visa Holder has a Compelling Need to Travel to or Remain in Australia

24. The applicant states in his September 2019 NOICC response that he had a passion for technology and that was the reason he chose to study at QUT in the IT field. However, the applicant states that he began feeling home sick, and that he began missing his family and friends. The applicant then states that he sought to speak to the QUT about this and to seek help, but the applicant states that the university staff was unhelpful and uncooperative. The applicant states he was told to go back home if he was feeling homesick.

25. The applicant states that he spoke to his parents who recommended that he move to Melbourne. The applicant states that in his first semester in the Diploma in Information Technology he passed 2 out of the 4 subjects. This further impacted the applicant making him feel low and stressed. The applicant then sought advice from an education consultant who he engaged to help him out. The applicant applied to be released from his studies at QUT. The applicant states QUT failed to promptly release him and as a result he missed his chance to enrol in the universities in Melbourne. The applicant states he needed a release letter from QUT to be admitted into a Victorian university. As a result of not yet holding a release, the applicant states that his education consultant advised that he enrol in any course so as to maintain an enrolment in Australia. The applicant then had the motor vehicle accident which adversely impacted his physical and mental health.

26. The applicant states that he enjoyed his new studies but that he was waiting to on the university to allow him to transfer in the IT field. The applicant then states that he received correspondence advising him that his enrolment was cancelled. The applicant states that he sought advice from his consultant who advised that because he was enrolled he would be fine in the eyes of the Department. The applicant then states that his father was diagnosed with cancer which caused him added stress and was a distraction. Being absent from his home in India made his father’s diagnosis harder to deal with.

27. The applicant finished the Certificate III in Light Vehicle Mechanical Technology which he enrolled in to maintain enrolment, and whilst wishing to continue in the IT field, the college where he was studying was closed down. It was around this time the applicant received the NOICC. The applicant states that he came to Australia for the higher education studies but that it was circumstances that meant it was hard for him to be compliant with the requirement to be appropriately enrolled.

28. The Tribunal accepts the applicant’s evidence that his purpose for travel was to study in Australia and that he intended to study in the IT field. Further, the Tribunal accepts that he has a compelling need to remain in Australia in order to complete his current studies having gotten so close to finishing the packaged course so he can return home with better prospects and a secure career. The Tribunal gives this factor some weight in favour of the applicant against cancelling her visa.

    Circumstances in which the Grounds for Cancellation Arose- whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

29. The circumstances of the breach are set out above. The question is how much weight to place on the fact of the breach itself as weighed against the other evidence in favour of the applicant. The Tribunal notes that the applicant arrived to study in Australia when he was 19 years old, and that the culture shock and living away from home meant he was without emotional support. The lack of support from his immediate family, together with the advice he received from the educational consultant misdirected the applicant. This was exacerbated by own motor vehicle accident that required a short hospitalisation, his father’s cancer diagnosis and a general inability to adequately arrange his affairs. The Tribunal is mindful that the applicant is not without fault in the ground for cancellation arising, but given he intends on returning home after finishing his studies in September, the Tribunal is minded to allow the applicant the opportunity to complete his studies in September 2020.

30. The Tribunal is also mindful that the applicant did not present evidence of a specific mental health diagnosis, and the evidence in support was of a general nature, but the Tribunal considers that the stated issues did compound and impacted the applicant’s ability to manage his own affairs at his young age.

    Extent of Compliance with Visa Conditions

31. There is no evidence before the Tribunal that the applicant has breached other conditions of his visa. The Tribunal expects that a visa holder will generally adhere to the conditions imposed on them, and the Tribunal is mindful of the significance of the breach of condition 8202(2)(b). The Tribunal gives minimal weight in favour of the applicant that there are no additional breaches of visa conditions.

    The Degree of Hardship that might be caused (financial, psychological, emotional or other hardship)

32. The applicant stated to the Tribunal that if his application was unsuccessful that he will have wasted the cost of studying, and he will not have completed the packaged course. The applicant stated that without the Certificate IV in Automotive Mechanical Overhauling and the Diploma of Automotive Technology he will have nothing to show for his time in Australia. The applicant also stated that his father would be disappointed as he was paying for his studies in Australia. To put it colloquially, the applicant emphasised that he has nearly finished his studies, and the money will have been wasted to get so close to finishing his studies, but failing at the final hurdle.

1. The applicant did not state an intention to remain indefinitely in Australia, or to seek to apply so as to be able to remain indefinitely in Australia. The applicant did not foreshadow any further visa applications of any nature, but stated a clear and unambiguous intention to return home. The Tribunal accepts the applicant’s hardship as expressed to the Tribunal and considers this weighs against the cancellation of the applicant’s visa.

2. Given the near completion of the currently enrolled studies, and the applicant’s clear and repeated intention to return home, the Tribunal considers that some weight to this factor ought to be given against cancelling the applicant’s visa.

   Past and Present Behaviour of the Applicant towards the Department

3. The applicant filed his response to the NOICC on 15 September 2019. The applicant was cooperative in his dealings with the Tribunal. No adverse information has been provided to the Tribunal. The Tribunal gives this some weight in the applicant’s favour not to cancel his visa.

   Whether there are Persons in Australia who’s Visas would, or may, be Cancelled Under s140

4. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s140 of the Migration Act 1958. The Tribunal places no weight on this factor in the applicant’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

5. There is no information before the Tribunal that this application raises any questions of Australia’s international obligations, and the Tribunal gives this factor no weight in the applicant’s favour.

   Any Relevant Matters

6. The applicant stated to the Tribunal on more than one occasion that he will “definitely” return home to India after completing the Diploma in September 2020, and implement his obtained learning and skills. The applicant filed with the Tribunal a May 2020 job offer from Mr. Harinderpal Singh of New Punjab Motors, Budhlada in which the applicant is offered a job as a full time mechanic upon his return home. The applicant stated that he will complete his studies in September and return home in October 2020 having obtained a Certificate III, Certificate IV and Diploma in the vehicle repair field.

7. Considering the applicant’s circumstances and the factors listed above as a whole, the Tribunal concludes that the breach of condition 8202 is outweighed by the circumstances that lead to the breach and the effect of such breach. The Tribunal considers that the applicant ought to be given a final opportunity to complete his current course and to then return to his home country as he stated he would. As such, the Tribunal concludes that the applicant’s visa should not be cancelled.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   P. Adami
   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.