Harjinder Singh (Migration)
[2019] AATA 5624
•11 December 2019
Harjinder Singh (Migration) [2019] AATA 5624 (11 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Harjinder Singh
CASE NUMBER: 1928960
HOME AFFAIRS REFERENCE(S): BCC2019/3200562
MEMBER:Vanessa Plain
DATE:11 December 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 11 December 2019 at 4:02pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-enrolment in registered course at same level, or higher, than that for which visa granted – visa for diploma and bachelor courses – ceased studies at bachelor level and enrolled in diploma course – discretion to cancel visa – factors for and against cancellation – health, surgery, anxiety and stress – no medical evidence provided – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 9 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).
The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a registered course of study 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. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 11 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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
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 (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?
Condition 8202, as it applies in this case, relevantly provides as follows:
·Subject to subclause 3, a visa holder must maintain enrolment in a registered course of study 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: 8202(2)(b)
·A visa holder satisfied the requirement in 8202(2)(b) if the visa holder is enrolled in a course at the AQF level 10 and changes their enrolment to a course at AQF level 9: 8202(3)
In the present case, the applicant’s visa was cancelled on the basis the applicant did not maintain enrolment in a registered course of study 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.
An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 15 March 2018 for the purpose of undertaking the following courses:
·A Diploma of Leadership and Management at Group Colleges Australia; and
·A Bachelor of Business at Group Colleges Australia.
The applicant’s visa was granted on the basis that the Bachelor of Business, once completed, would provide an AQF level 7 qualification. However, the applicant ceased his studies in the Bachelor of Business degree on 7 December 2018. Prior to ceasing his studies, he enrolled in a package of courses on 19 November 2018, the highest COE for which is a Diploma of Hospitality Management at AQF level 5. His enrolment in the Bachelor of Business was cancelled on 19 February 2019.
As the Diploma of Hospitality is AQF level 5, condition 8202(3) does not apply to the applicant.
A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 28 August 2019.
The applicant responded to the NOICC in writing on 3 September 2019. In that response, the applicant provided various reasons as to why his visa should not be cancelled, namely:
(a)He is studying a Certificate IV in Cookery and a Diploma of Management presently and is focused on those studies;
(b)He enrolled in the above courses because he suffered from a kidney condition and was advised by doctors to take a course that caused less stress and the Group Colleges would not reduce his study load;
(c)He suffered from renal calculas on his right side which required surgery in February 2017, this was during his Certificate IV in Business Administration studies;
(d)He was suffering from the same renal condition in 2018, on his left side, as well as anxiety and stress, which impacted adversely upon his Bachelor of Business studies;
(e)It is his parents dream to for him to have a good career.
At the hearing, the applicant candidly made the following admissions:
·He downgraded his course from a Bachelor degree to a vocational level course, on the advice of doctors, because he was suffering from a recurrence of kidney issues in 2018 (which is was suffering from in 2017) and was advised by doctors to take a course that would reduce stress levels;
·He tried to reduce his study load in the Bachelor degree, but was not successful;
·He enrolled in the vocational level courses on the advice of his education agent, Oz Global Study situated in Paramatta, Sydney. The agent advised the applicant that because the applicant had a COE to study the Bachelor of Business (again) in 2022, it would not be an issue for his visa to complete the vocational level courses presently and after completion of those courses, recommence the Bachelor degree.
On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study 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
Consideration of the discretion to cancel the visa
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant initially arrived in Australia as the holder of a Student visa (TU 573) on 7 May 2014. Documents produced by the applicant at hearing clearly demonstrate that he has completed an English Course, a Certificate IV in Business Administration and a Diploma of Leadership and Management.
The applicant’s current visa was granted for the purpose of undertaking study at the Bachelor level or higher. The applicant contended that due to a recurrence of a kidney issue in 2018, his studies in his Bachelor degree suffered and he was advised by doctors to take a course involving less stress.
It is clear based on the matters set out above, that the applicant has demonstrated some academic success while studying in Australia. However, the visa was granted for the purpose of studying at the Bachelor level and academic records produced indicate that the applicant failed the semester of subjects he undertook in the Bachelor degree. Although the applicant contends he was suffering from medical issues in 2018 that impaired his ability to study at Bachelor level, the applicant did not produce any medical evidence to substantiate these claims and in fact acknowledged, that he did not have any medical evidence to substantiate these matters in 2018. The Tribunal acknowledges that the applicant produced medical evidence as to his medical issues in early 2017.
Based on the above information, the Tribunal considers that the applicant’s purpose of stay in Australia is not consistent with Bachelor level study. He has been in Australia utilising two higher education sector student visas since 2014 and has only managed to achieve qualifications in vocational level courses.
The Tribunal gives these factors some weight towards the visa being cancelled.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2). The applicant has provided reasons for the breach which are set out above, namely, that due to an illness that occurred in 2017 (which the Tribunal acknowledges is supported by medical documents dated in or around early 2017) which re-occurred in 2018, he was advised by doctors to take on a course with lower stress levels. He was also advised by an education agent to enrol in vocational level courses, pass them and then recommence his Bachelor course in 2022.
The Tribunal acknowledges that the applicant was suffering from a medical condition in 2017, whoever, on the basis that no medical evidence has been provided as to a medical condition in 2018, the Tribunal cannot be satisfied that the alleged medical condition led to the breach of the visa condition.
Further, although it is unfortunate that the applicant may have received incorrect advice from an education agent about his visa conditions, the Tribunal does not consider a general lack of awareness of one’s visa conditions to be a reasonable excuse for non compliance with a visa condition.
There is no evidence before the Tribunal of non compliance with other visa conditions by the applicant.
On the basis of the above, the Tribunal is not satisfied that there is a reason for the breach of the visa condition that constitutes a matter or a set of circumstances that was reasonably out of the control of the applicant and I give this some weight in favour of the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that his future career will suffer if his visa is cancelled and that it is his parents dream for him to have a good career.
The Tribunal acknowledges that the applicant will suffer some hardship if the visa is cancelled, he will not be able to complete his current vocational courses and his parents will be disappointed. I accept that some psychological hardship will befall the applicant as a consequence of these matters.
However, I note that the applicant already holds vocational qualifications from Australian educational institutions which he will be able to utilise upon his return to India.
Based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The circumstances that led to the breach of the visa condition are set out in paragraphs 12(b), 12(c), 12(d), 13 and 19 above.
As set out in those paragraphs, the Tribunal cannot be satisfied that the reasons for the breach of the visa condition arose out of circumstances that were out of the control of the applicant.
The Tribunal acknowledges that the applicant was suffering from a medical condition which required surgery in February 2017 and that he produced material documents corroborating his condition in early 2017. However, the breach of the visa condition occurred in late 2018 and the applicant did not produce any medical evidence supporting his contention that he was suffering from the same condition in 2018, which led to his visa breach. Therefore, the Tribunal cannot be satisfied that the applicant’s alleged medical condition led to the breach in issue.
Further, the Tribunal acknowledges that the applicant may have relied up the incorrect advice of an education agent as set out above. However, the Tribunal considers that it is reasonable to expect visa holders to be familiar with the conditions attached to their visa as these conditions are set out when the applicant receives the visa.
On the basis of these matters, the Tribunal finds that the reason for the breach was reasonably within the control of the applicant and I therefore give this significant weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
The applicant has conducted himself in good faith in his dealings with the Department. This is demonstrated by the fact that he responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with his response to the Department. I give this some weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
The applicant gave evidence that there are no consequential cancellations as a result of his visa being cancelled. I therefore give this no weight in favour of the visa not being cancelled.
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
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country. However, these are mandatory consequences of the legislation and in view of the fact that I have found that the reason for the breach of the visa was reasonably within the control of the applicant, I give this little weight in favour of the visa not being cancelled.
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
Not applicable.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
The applicant’s agent has submitted a document to the Tribunal dated 6 December 2019 in which it is contended that the applicant was not afforded procedural fairness by Group Colleges before it cancelled his Bachelor of Business enrolment. I do not consider this relevant, because the issue before the Tribunal does not pertain to cancellation of enrolment leading to non enrolment. Further, based on the applicant’s evidence, he downgraded his course selection on medical advice, therefore, the fact that Group Colleges cancelled his enrolment without giving him an opportunity to respond (which is alleged effectively by the submission, but in respect of which no evidence was given at hearing) is irrelevant.
Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.
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.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Vanessa Plain
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Remedies
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