Jaskiran Kaur (Migration)

[2019] AATA 5472

Jaskiran Kaur (Migration) [2019] AATA 5472 (22 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jaskiran Kaur Jaskiran Kaur

CASE NUMBER:  1801427

HOME AFFAIRS REFERENCE(S):          BCC2017/3268661

MEMBERS:Rachel Westaway (Presiding)

Amanda Upton

DATE:22 November 2019

PLACE OF DECISION:  Melbourne

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 22 November 2019 at 5:05pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – continue satisfaction of primary criteria – not enrolled in a registered course of study – consideration of discretion – genuine commitment to studies and career – credible oral evidence – genuine unintentional breach – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 January 2018 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the holder had not complied with a condition on their visa. 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 17 April 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. 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(1)(b). 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

7. 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 8516 was attached to the applicant’s visa. Condition 8516 requires the holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires for the grant of the visa[1].

   [1] Tribunal file: ff: 1-8

8. The applicant provided the Tribunal with a copy of the delegate’s decision when applying for review. Outlined in the decision was the reason for the cancellation. It was determined that the applicant had not complied with condition 8516.

9. The decision outlined that it appeared, based on Provider Registration and International Student Management Systems (PRISM) that the applicant was not enrolled in a registered course of study.

10. The applicant responded to the Department on 8 November 2017[2]. She stated that she came to Australia to study a Masters of Accounting Professional Practice. Her grades were good, she completed her studies earlier than anticipated, completing a dual MPA and MBA with good grades and she has applied for a temporary graduate visa subclass 485 on 18 October 2017. She also confirmed that she had received 7 bands in her English language test. She claims to have never breached any laws or conditions, she has been a good student and if her visa is cancelled it will affect her application for her subclass 485 visa. The applicant was already in Australia and studying towards her Masters and was granted a second visa on 3 September 2016. It appears she did not require such a long validity on this visa given she completed her Masters of Business Administration early on 13 March 2017. The visa was not due to expire until 18 March 2018. Because the applicant completed her course early and consequently was not enrolled, she breached condition 8516. It appears to the Tribunal that the applicant departed Australia towards the end of her course, returned for a few months and the lodged an application for another visa which would allow her to gain work experience.

    [2] Department file BCC2017/3268661: f:7

11. The applicant did not dispute to the Department delegate or the Tribunal that she was no longer enrolled.

12. If she was no longer enrolled, she did not satisfy the criteria 500.211(a).

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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

14. 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

15. The applicant attended a hearing with the Tribunal and confirmed she is from India. She came to Australia by herself in July 2014 to study and work and enhance her skills. She had completed an MBA in India at Punjab Technical University in finance and marketing. She is 32 years old and single. Her family have supported her financially. She confirmed she has returned to India 2-3 times since being in Australia and has no family here. Her travel to Australia is the first travel she has taken outside of India. 

16. She originally planned to study at Charles Darwin University and found that the pressure of Charles Darwin was too much and she transferred to Holmes College.  The records on the Department file support these statements and her completion of the two Masters.

17. The applicant explained that she has a compelling need to remain in Australia. She outlined her education pathway and explained that she would really like to put her Master’s degrees into practice and obtain work experience in Australia. Whilst she is able to apply for work rights on her bridging visa, it is less appealing for an employer to support someone on a bridging visa when their stay is uncertain. She explained that if she left because her visa was cancelled it would have flow on effects regarding her ability to apply for other visas. The applicant stated that her original intention was to study and then work in a relevant professional role in Australia in order to gain this experience and return to India.

18. The Tribunal accepts that the applicant came to Australia to study and has successfully completed two Masters. The Tribunal acknowledges the needs outlined by the applicant to remain in Australia and continue to build on her professional career.

19. The applicant has applied herself diligently to her studies and achieved strong academic results. Given the applicant’s genuine commitment to her studies and credible oral evidence, the Tribunal gives these factors some weight in favour of not cancelling the visa.

    the extent of compliance with visa conditions

20. There is nothing before the Tribunal to indicate that the applicant has not complied with any other conditions on her visa. She stated that she has not breached any other conditions and has never broken the law.

21. The Tribunal expects that applicants adhere to the conditions on their visa and as such gives this factor only minimal weight in favour of the applicant.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

22. The applicant demonstrated her commitment to her studies and the Tribunal notes her achievements and genuineness. She provided credible oral evidence stating she wished to obtain some work experience before she returns to India and this will not be possible if her visa is cancelled. She explained her age and stated that she cannot wait longer to then return and gain experience in a few years’ time.  She is 32 years of age and would like to return to India and launch herself into a career from a strong starting base.

23. The applicant stated that her Grandmother passed away only recently and she was unable to return to India to see her. She explained that she has had to give up many opportunities for her studies and if the visa is cancelled and she is not able to fulfil her wish to put her studies into practice, then it will be disappointing and of less value.

24. The Tribunal accepts that a cancellation of a visa results in opportunities lost and disappointment. It also accepts that there will be a financial loss for the applicant and a delay in achieving what they may have wanted to achieve in Australia.  However, it is expected that there will be consequences to a cancellation. As such, the Tribunal gives minimal weight to the considerations outlined by the applicant.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

25. The applicant’s student visa did not expire until March 2018 however she completed her Masters by March 2017. She claims to have always intended to remain in Australia temporarily to obtain work experience if she was granted a subclass 485 graduate skilled visa. She provided evidence to support her application for this visa. She returned to India for a month around the time she completed her Masters. She did not apply for her subclass 485 visa immediately but waited seven months. The applicant should have advised the Department of her changed circumstances, namely her early completion of her course and applied for her subclass 485 visa quickly. Unfortunately she did not. She took seven months. This resulted in her remaining in Australia without being enrolled in a registered course as well as missing the required 6 month timeframe in which she should have applied for her subclass 485 visa. She claims she was ill-advised by her migration agent.

26. If the applicant had informed the Department and applied within the correct time frame, she would not have breached this condition nor lost the opportunity to apply for a subclass 485. The consequences of both are problematic for the applicant.

27. The Tribunal has considered the breach and the circumstances and based on the evidence on file, accepts that she genuinely intended to remain in Australia on the correct visa. It also accepts that she did not intend to breach the condition and logically thought that the early completion of her course was simply an advantage and it did not require her to depart the country or rectify her enrolment immediately. Whilst the Tribunal accepts it is the visa holder’s responsibility to ensure they adhere to the conditions on their visa, it is clear the applicant did not intentionally plan to mislead the Department and that she was a genuine student.

28. The Tribunal gives these considerations significant weight in favour of the applicant and not cancelling the visa.

    past and present behaviour of the visa holder towards the department

29. The applicant has responded to all requests for information and whilst being remiss in not informing he Department of her early completion of her studies, she has otherwise behaved appropriately in all dealings with the Department and Tribunal. The Tribunal expects that applicants demonstrate appropriate behaviour in all of their dealings with the Department and Tribunal and as such gives this factor only minimal weight in the applicant’s favour.

    whether there would be consequential cancellations under s.140

30. There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

    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

31. If the visa is cancelled, the applicant will become a non-lawful citizen and her ability to apply for other visas would be limited. Whilst unlikely in this instance, she could be detained until she made arrangement to leave the country.

32. The applicant would also be section 48 barred and may not meet the requirement for certain visas for three years.

33. The Tribunal sees these as natural consequences of the cancellation of a visa however in this particular instance the Tribunal places more weight on the circumstances in which the breach occurred and the applicant’s demonstrated commitment to her studies and career. The severity of the consequences for the applicant are high and as such the Tribunal places more weight in favour of not cancelling the visa.

34. 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

35. The applicant has provided no reasons for being unable to return to India and as such the Tribunal affords this factor no weight.

    if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

36. This factor is not relevant and as such the Tribunal affords it no weight.

    any other relevant matters

37. The applicant explained that she did not want to study any further and has always been a brilliant student and completed her NAATI. Her English skills are very strong and she is single and she can’t plan her life and her families hopes are with her to succeed in a great career. She wants to work as an accountant and wants to obtain practical experience in Australia. She said that the practical experience in Australia is working at a more advanced accounting and operating level and she wants to study a CPA and be independent and she has not reached the point she can do that yet and she want. She said that an Indian chartered accountant does not have the same level of experience and employment and if she can gain this in Australia she will have achieved her dream. She stated that it will provide her with personal satisfaction and status which is important for her.

38. The Tribunal accepts that the applicant has demonstrated a career plan and pathway which to date she has followed and is logical.  The Tribunal accepts that the applicant has demonstrating her career objectives and need for such experience in Australia which would be lost if her visa is cancelled. The Tribunal affords these factors some weight in favour of the applicant.

39. Considering the circumstances individually and as a whole, noting particularly the applicant’s demonstrated commitment to her studies and career and genuine unintentional breach, the Tribunal concludes that the visa should not be cancelled

    DECISION

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

    Rachel Westaway
    Senior Member

    
    

    Amanda Upton
    Member