Ishika (Migration)
[2022] AATA 2045
•16 June 2022
Ishika (Migration) [2022] AATA 2045 (16 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Ishika
REPRESENTATIVE: Mr Dushan Nikolic
CASE NUMBER: 2205629
HOME AFFAIRS REFERENCE(S): BCC2022/488263
MEMBER:Noelle Hossen
DATE:16 June 2022
PLACE OF DECISION: Perth
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 16 June 2022 at 4:03pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant’s father accidentally claimed a refund of the visa application charge – change in residential address not notified – applicant offered to refund the amount – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedules 1-2; Schedule 8, Conditions 8202, 8533CASES
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 12 April 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(a) on the basis that she claimed a refund of the visa application charge, by the cardholder (her father), so she no longer met Schedule 1 requirements, of paragraphs 2(a)(i) of item 1222. 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 9 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from her father, Sushil Kumar
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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
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 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?
s 116(1)(b) - non-compliance with conditions
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 condition 8533 attached to the applicant’s visa. This condition requires that the applicant must notify the education provider of any change in the residential address in Australia within 7 days of the change occurring. The delegate also found that the applicant had claimed a refund of the charges for the visa and that she was holding and receiving the benefit of a Visa but had not paid for it.
At the time of the Delegate’s Decision the Delegate was concerned that the applicant had not updated her address to her education provider and that is considered a breach of Condition 8533.
The Delegate also found that the fact that the cost for her Visa was repaid to her father that this amounted to a deliberate attempt to defraud the Commonwealth by claiming a refund of fees paid for her student visa.
The Delegate found that found that the decision to grant the visa was made with the knowledge that the application was considered to be valid as the applicant had paid the cost of the application and therefore met the Schedule 1 requirements.
The Delegate found that the claimed refund of the relevant visa application charge, by the cardholder, means the applicant no longer meets Schedule 1 requirements the circumstances that permitted the grant of the visa, no longer existed.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116 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
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.
the 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 obtained a Visa to study in Australia for 3 years. The applicant informed the Tribunal that she had completed her studies and her placement at Graduate Diploma level. The Delegate did find that the applicant had complied with Visa Condition 8202. Although the Delegate found that she had met her purpose of stay in Australia, he found that she did so by fraudulent means.
The Tribunal heard evidence from the applicant and her father and accepts that the refund of the cost of the Visa was unintentional as at the time her father thought that he did not recognise the payment that was made on his card. The Tribunal accepts the evidence of the applicant that the total cost of her studies was more than $35,000 and that she would not try to jeopardise her studies by claiming back a measly sum of $620. She had paid her private health insurance, travel costs, migration agent costs, and cost of the education provider. The Delegate did find that she had complied with the requirements of her visa in most aspects.
The Tribunal places significant weight on those facts in favour of not cancelling the Visa.
the extent of compliance with visa conditions:
The delegate found that the applicant did not comply with the visa condition as follows:” On the 14 February 2020 visa holder launched an application for a student subclass 500 visa via online lodgement. The payment of $628.18 was made via credit card in the name of Sushil Kumar, to meet the visa application charge for this visa plus relevant surcharge.
As the visa holder appeared to meet all Schedule 1 requirements under item 1222, her application for the student visa was deemed valid and therefore eligible to be assessed against schedule 2 Regulations. The visa holder was subsequently assessed by the delegate is meeting all relevant schedule to requirements for grant of the student visa and was granted the visa on 15 February 2020 while she was offshore.
The Visa holder travelled to and arrived in Australia on the 21 February 2020 as the holder of the Student (Subclass 500) Visa and proceeded to commence study in line with the purpose of stay of her Visa.
On 26 May 2020 the Department’s treasury reconciliations was notified that the above credit card payment had been successfully disputed by the cardholder, via their bank, and the payment has been debited on the Department’s bank account on 24 March 2020. The funds were therefore returned to the cardholder.
The Visa holder is therefore holding and receiving the benefit of a visa for which she has not paid the relevant visa application charge.”
The applicant’s evidence was that she was unaware that this had happened and that when she became aware, she offered to refund the amount as her father had made an honest mistake. The Tribunal accepts her evidence and the evidence of her father as this is a case where a student has complied with the conditions of her Visa to the best of her ability, and she was unaware that this had occurred. Her father admitted that he did not recognise the payment transaction and it was for this reason that he asked for the refund as he thought it was a fraudulent transaction. The applicant and her father had no intention to defraud the Commonwealth. The Tribunal does not accept the finding of the Delegate.
The delegate found that in respect of visa condition 8533 the PRISMS records reflect a different residential address recorded by the education provider to that recorded on departmental systems. The delegate confirmed her contact details with the Department. The delegate found that it appeared that she had not continued to comply with subparagraph ( b) (i) of condition 8533, which stipulates the Visa holder must notify the education provider of any change in residential address in Australia within 7 days after the change occurs.
The Tribunal places little weight against the cancellation of the Visa because the applicant has explained her position to the Tribunal, and she has complied with almost all of the obligations of the Visa.
degree of hardship that may be caused (financial, psychological, emotional or other hardship):
There was little evidence before the Tribunal in respect of the degree of hardship that may be caused to the applicant. The applicant does not have any immediate family members onshore.
She is presently hoping to obtain some experience in her chosen field of study and the cancellation of a visa would affect her ability to do so.
The grounds for cancellation arose because the Department was of the view that the refund of fees for the visa was a deliberate action to claim money back through the bank and there was no evidence of contact made with the Department at that time by the applicant. The Department was of the view that it was an attempt to defraud, once the Visa holder had entered the country and commenced her course of study.
At the Hearing the applicant explained the situation to the Tribunal and the Tribunal accepts her evidence that there was no intention on her behalf by her father to defraud the Commonwealth of Australia.
The Tribunal places some weight in favour of not cancelling the visa.
Past and present behaviour of the visa holder towards the department:
The Delegate found that there was no information before the Tribunal that the applicant had behaved inappropriately in any other incident or displayed any negative behaviour towards the Department, other than to claim the visa application charge but once she had secured the visa. The Tribunal does not accept that she had behaved in a negative way towards the Department and gives this consideration significant weight against visa cancellation.
Whether there would be consequential cancellations under s 140:
There are no other persons that holds a Visa so this paragraph is not applicable.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, 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 applicant student visa is cancelled you will become an unlawful noncitizen and will be liable for detention unless she voluntarily disc departs Australia. The delegate found that the Visa holder will not however be subject to the imposition of an exclusion period under public interest criterion 4013. The later time providing she meets relevant criteria.
whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The Tribunal agrees with the findings of the delegate that there is no evidence that she has any fears of harm or persecution should her visa be cancelled.
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Noelle Hossen
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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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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