Jangra (Migration)

[2019] AATA 4117

Jangra (Migration) [2019] AATA 4117 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravi Jangra

CASE NUMBER:  1907853

HOME AFFAIRS REFERENCE(S):           BCC2019/135879

MEMBER:Noelle Hossen

DATE:12 August 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

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Statement made on 12 August 2019 at 3:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – financial difficulties – recommenced study while on Bridging visa  – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on the 1 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant arrived late to the hearing and the interpreter was booked for a hearing and could not stay past 10.15 am. The Tribunal did ask the applicant whether the hearing could be continued in the absence of the interpreter and the applicant agreed. The applicant seemed to understand the English language reasonably well.

4. 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

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 (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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Prior to the cancellation he was sent a Notice of Intention to cancel by the Department to which he responded.

8. The applicant arrived in Australia from India pursuant to a visa granted from the 23 March 2015 to the 15 February 2020.He had studied for and obtained a Diploma in Electrical Engineering in India prior to his arrival to Australia .He was only 22 years of age at the time of arrival.

9. He was enrolled to study a Bachelor of Engineering in Australia. He was also enrolled to commence an English Language Bridging Course from the 20 November 2015 to the 19 February 2016.He attended his classes but was unable to achieve the appropriate grade in English which was B- as he had a C pass and therefore was unable to commence his Course in the Bachelor of Engineering.

10. He enrolled in Commercial Cooking Certificate that he completed at Stanley College. Although he finished the Course he was unable to complete the Assignments on time so he was not awarded a Certificate by the College. He had to enrol again in the same course but was unable to meet the fees.

11. He had been very disappointed with his efforts as he had always been a very good student in his home country. He showed the Tribunal a copy of his results in his Diploma of Engineering and he had achieved good marks. He said he did not fit in well in Australia as he knew no one and has no family or friends in Australia. He was not very good on the computer as it took him longer to complete his assignments.

12. He confirmed that he had not been enrolled in a registered Course from the 10 May 2018 until the 14 March 2019.after receiving the Notice of Intention to cancel the visa the applicant did register in a course but he was not enrolled at the time of receiving the Notice from the Department.

13. However the applicant has been studying since the start of his enrolment in March 2019 until the date of the hearing for a Diploma of Human Resources as he was able to obtain a Bridging Visa E which allows him to continue with his studies. He had enrolled in the course as it was one of the few courses open to him at Kingdom College as he was unable to study at Stanley College as they would not allow him to do so. He has been attending Kingdom College and it is a 9 month course and he has not seen his results yet.

14. On the evidence before the Tribunal the applicant did not have an enrolment in a registered course from the 10 May 2018 to the 14 March 2019. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. 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.

16. The visa holder was staying in Australia on a student visa but was not enrolled in a Course of Study .He did not comply with his visa conditions for 9 months. Although his conduct cannot be ignored, the fact is that he has sought to reapply so that he can remain In Australia temporarily.

17. As soon as he became aware that his visa was going to be cancelled he applied to study in another course. He has behaved appropriately towards the Department.

18. The applicant’s family were dealt a serious financial and psychological blow when his father was involved in a serious car accident in India whereby his uncle who was driving the car died. His father suffered injuries which resulted in him not being able to work for a year Although the accident occurred on the 7 May 2016, his father was disabled and unable to work which resulted in financial hardship for a year and beyond for the family. The applicant provided the Tribunal with the documents verifying the death of his uncle, the hospitalisation of his father and his Certificate that proved that he was unfit for work. The consequences were dire for the family including the applicant, as his father was the main breadwinner and was supporting the applicant’s payment of fees for the courses that the applicant was undertaking in Australia. The applicant said that his family was suffering financial hardship. He could not afford to travel back to India as he had no funds and he was unemployable in India in any event. His purpose of studying in Australia was to improve his chances of obtaining employment in India.

19. He had never worked in India prior to his arrival in Australia. He could not concentrate on his studies as he felt sad for his family as his family were close to his uncle. He tried to do the best he could and sent most of his earnings to India to support his family. He was only working 20 hours a week as he wished to comply with his Visa conditions. He could not pay for the Course so his course was cancelled by the provider and it resulted in his cancellation of his visa.

20. He is able to comply with his visa conditions now and intends to finish his Course if he is permitted to stay in Australia. There is no evidence before the Tribunal that the applicant has been involved in any dishonest behaviour. His explanation is plausible and the matters that arose were beyond his control.

21. His father is back at work and his brother is now working so the family are back on their feet so he is able to concentrate on his studies. He plans to return to his home country when he completes his studies.

22. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Noelle Hossen
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.