Jakhar (Migration)
[2020] AATA 2781
•31 May 2020
Jakhar (Migration) [2020] AATA 2781 (31 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Miss Prachi Jakhar
CASE NUMBER: 2000618
HOME AFFAIRS REFERENCE(S): BCC2019/3345906
MEMBER:Vanessa Plain
DATE:31 May 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 31 May 2020 at 11:47pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – purpose of visa no longer fulfilled – responsibility of visa holder – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 13 January 2020 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 failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australia 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 18 May 2020 to give evidence and present arguments.
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(2)(b) 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 provides as follows:
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
[...]
(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.Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course 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 applicant’s visa was granted on 22 December 2017 for the purpose of studying a Master of Professional Accounting at RMIT University which is an AQF level 9 course.
Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 7 March 2018, the applicant transferred to another education provider, Holmes Institute. On 16 August 2018, the applicant obtained a deferral of study until 11 November 2018, however, their enrolment in the course was canceled and she did not re-enrol in another Masters Degree after this time.
PRISMS indicated that the highest CoE the applicant held thereafter was for a Certificate III in Commercial Cookery. This enrolment is at AQF Level 3. As the applicant was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to them.
On 4 November 2019, a Notice of Intention to Consider Cancellation of Visa (NOICC) was sent to the applicant.
By written response dated 2November 2019, the applicant responded to the NOICC and agreed that there are grounds for cancellation. The applicant provided reasons to the Department for the breach of the visa condition, as summarized by the Delegate, as follows:
·The visa holder claims that she is a hardworking, honest student and has always taken her education very seriously. She attended all her classes as per the schedule and completed assessments in the required timeframe. She paid attention to her subjects, achieved good results and was doing well in her studies at Holmes College. While completing this course, she faced hardship due to her mother suffering from a heart attack. The stress of her mother’s poor health caused the visa holder to fail her exams, and she consequently took deferment from Holmes College.
·The visa holder took advice from various education consultants, but was provided with inconsistent advice. However, she was never advised that she cannot study at a lower AQF level course and was assured that she was not breaching any of her visa conditions, which she accepted due to the belief the consultants were more knowledgeable than her. Her current situation is as a result of being misguided by consultants.
·The visa holder commenced part-time employment in hospitality, which caused her to have an interest in this field. She therefore decided to pursue her passion in Cookery and enrolled at Australian study link institute to study a Certificate III in Commercial Cookery. This study path was also appealing to her as there are more opportunities in the hospitality industry in her home country.
At the hearing on 18 May 2020, the applicant admitted they breached their visa condition. The applicant gave evidence that was consistent with the reasons they gave to the Department in their response to the NOICC. The applicant informed the Tribunal that they were unaware of the visa condition, that they relied upon education argents for advice and that they didn’t know that the cookery course was a lower ranking course. The applicant stated further that they did cookery because of undertaking work experience in this area, not due to being unable to pay for the fees for their accounting course. The applicant would like to the Certificate IV in Cookery and the Diploma in Hospitality after their Certificate III has concluded.
In response to a question from the Tribunal as to why the applicant didn’t contact the Department to change her visa to ensure it was appropriate for the course she was studying in cookery, the applicant stated that no one told her she had to change her visa if she wanted to study the suite of cookery courses.
Based on the above, the Tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as she has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which her 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 Procedural Instruction ‘General visa cancellation powers’.
In her response to the NOICC, the Delegate summarised various reasons as to why she believed her visa should not be cancelled, as follows:
·The visa holder wants to support her parents and care for them in their old age, as she only has one female sibling and has no brother to who can take care for them. She is very attached to her parents and will return to India after completing her education in Australia.
·As there is no one who is self-employed in her family, she intends to complete her study in Cookery so that the skills and knowledge she gains in Australia can be used to help her father in opening a business in India. Acquiring quality education will help the visa holder to get a good job back in India as hospitality jobs are in high demand. She wants to find a sorted position in India so that her parents feel proud of her. She will be able to look after her father's agriculture and property in India after completing her studies in Australia.
·The visa holder’s mother requires ongoing medical care due to her heart attack. The visa holder wants to be with her and provide her with support, but if her education is incomplete and she is forced to return without completing a qualification, her mother will be devastated.
·The visa holder’s parents would be happy to see her complete her education in Australia as they spent a lot of money on her studies
·The visa holder supplied the following documents in support of her NOICC response:
Student acknowledgement of duties and responsibilities – Australian Study Link Institute (Placements in Certificate 3 in Commercial Cookery course); Certificate of appreciation for 1year service and commitment to AHS Hospitality and a pathological examination (CK MB and Troponin I) report of Mrs. Anju without any date from Dr. Navtej Nalwa (mother’s medical reports).
Purpose of applicant’s travel to and stay in Australia
The applicant’s current Student visa was granted on 22 December 2017 for the purpose of studying a Master of Professional Accounting, which once complete, would provide a qualification at AQF Level 9. The applicant’s CoE in this course was cancelled after the applicant failed to reattend classes on 11 November 2018 after obtaining a deferral of her studies on 16 August 2018, due to, among others things, her mother’s ill health.
PRISMS indicated that she also commenced study in a Certificate III of Commercial Cookery, which would provide a qualification at AQF Level 3.
The Tribunal acknowledges the applicant’s mother’s ill health and her explanations for her non compliance with the visa condition. The Tribunal further acknowledges that there is no evidence before it to suggest that the applicant’s original purpose for entry and stay in Australia was for a purpose other than study. However, the Tribunal places weight on that applicant’s statement in her NOICC response, that her current purpose is to pursue cookery studies, to assist her help her father in opening a new business in India.
The applicant has chosen to enroll in study that is 6 AQF levels below her Masters degree. The visa was granted for the purpose of studying an AQF level 9 course. The purpose of the applicant’s stay in Australia is therefore no longer in line with her visa.
The Tribunal affords this consideration some weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202.
Given the length of time that has passed since non compliance on or around 11 November 2018 when the applicant’s enrolment was cancelled, the Tribunal considers her non-compliance with condition 8202(2)(b) to be significant.
The Tribunal acknowledges that the applicant did not intentionally breach the condition and did not know she was in breach by failing to maintain enrolment in an AQF level 9 course, however, at the very least the applicant was aware of her default at the time she received the NOICC and there is no evidence before the Tribunal to suggest that the applicant took steps to rectify her visa status at that time.
There is no evidence before the Tribunal to indicate that the applicant has not complied with further conditions attached to the visa.
However, the Tribunal considers the requirement to maintain enrolment at the correct AQF level to be an important condition for the grant of the student visa and the Tribunal therefore gives this consideration some weight in favour of cancelling the visa.
The degree of hardship that may be caused to the visa holder and any family members
IN her evidence at hearing, the applicant informed the Tribunal that she wants to complete her studies, because if one doesn’t have a graduate certificate, you can’t get a good job. In her NOICC response, the applicant express concern that a cancellation of her visa will cause her to return to India without completing qualifications, which will be a disappoint to her parents.
The applicant was studying a Certificate III in Commercial Cookery before her visa was cancelled. The Tribunal acknowledges that failure to complete this qualification in Australia may be a setback for the applicant. However, the Tribunal notes that there is no evidence before it to suggest that the applicant could not complete studies in cookery at an education provider outside of Australia if she is required to depart the country.
The Tribunal acknowledge that the applicant’s parents would be happy to see her complete her education in Australia and she may suffer some emotional and psychological hardship as a result of being unable to complete her studies.
There is no evidence that any family members in Australia will be adversely affected by the cancellation of the applicant’s visa. However, the Tribunal acknowledge that in response to the NOICC, the applicant claimed that her parents may be adversely affected if the applicant is unable to complete her education in Australia
The Tribunal gives these considerations some weight against cancelling the visa.
The circumstances in which the ground for cancellation arose
The ground for cancellation arose because the applicant did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202 attached to his visa.
In the applicant’s NOICC response, the applicant provided a list of reasons regarding the circumstances in which the grounds for cancellation arose, namely as set out above. The applicant stated that she came to Australia to study a Master of Professional Accounting at RMIT University, however, she experienced stress due to her mother’s heart attack. The applicant worked in hospitality, which was the reason for her decision to enrol in a Commercial Cookery course. The applicant stated in writing and orally in evidence at the hearing, that she was not aware that this would affect her visa conditions and that she was misguided by professional consultants.
It is clear that the applicant failed to take corrective action to resolve her non-compliance with condition 8202(2)(b) by lodging a Student visa at the correct AQF level, or enrolling at the correct AQF level.
The applicant stated that no one told her that she needs to change her visa if she wants to study the cookery course.
The Tribunal considers that it is the responsibility of all visa holders to be aware of the conditions attached to their visas, and the actions required by them in order to maintain compliance with visa conditions. It is the responsibility of a student visa holder to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternate enrolment at the appropriate AQF level or not commencing further studies) and to clarify any consequences that may result from such a change. According to departmental records, at no time did the applicant contact the Department for this purpose and in fairness, the Tribunal acknowledges the applicant’s evidence that she did not contact the Department, on account of her ignorance of the condition.
Based on the above, the Tribunal finds that the reasons for the breach of the visa condition were not due to matters that were reasonably outside of the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa.
The visa holder’s past and present behaviour towards the Department
The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff.
The Tribunal gives this consideration a little weight against cancelling the visa.
Whether there are any persons in Australia whose visas would, or may, be cancelled under s140
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.
Legal consequences of a decision to cancel the visa
If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent her from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude her from being granted a visa for a specific period of time in the future.
However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were reasonably within the control of the applicant, the Tribunal does not consider this to be manifestly unfair and the Tribunal therefore gives this consideration little weight against cancelling the visa.
Australia’s international obligations
There is no evidence before the Tribunal to indicate 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 the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.
Any other relevant matters
The Tribunal has no further evidence before it of any other relevant matters.
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, that the reasons for the breach of the visa condition were not matters that were outside 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
MemberATTACHMENT
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.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Statutory Construction
-
Natural Justice
-
Remedies
0
0
0