Kailey (Migration)

Kailey (Migration) [2020] AATA 2127 (5 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manjot Singh Kailey
CASE NUMBER:  2003906
HOME AFFAIRS REFERENCE(S):          BCC2019/5230803
MEMBER:Elizabeth Tueno
DATE:5 May 2020
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 05 May 2020 at 11:37am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course for two periods – marriage and relationship with wife remaining in home country – mental health and treatment – current enrolment and delayed commencement due to coronavirus restrictions – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 17 February 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 applicanthad not complied with condition 8202(2)(a) in that he had not been enrolled in a registered course of study since 3 December 2018. The delegate was not satisfied that the grounds for canelling the visa were outweighed by the grounds for not cancelling it. 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 29 April 2020 by telephone to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gurbartap Singh and Mr Rashpinder Sharma.
The applicant was represented in relation to the review by his registered migration agent, although the agent did not attend the 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
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, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant stated that he was enrolled and studying an Advanced Diploma of Hospitality at Stotts College, which he commenced at the start of 2018. He stopped attending the course in around October 2018 due to “personal issues”. He said before this, he had been a good student. He confirmed he did not complete this course. He stated that in around July or August 2019, he re-commenced this course but only studied for a few months before he stopped again. He stated earlier this year, he enrolled in a Bachelor of Business Administration at IBM College. He said that rather than return to complete the Advanced Diploma of Hospitality, his father had asked him to do the Bachelor course instead.
The applicant provided no evidence of enrolment in the Advanced Diploma of Hospitality for a second time in 2019, nor any evidence of enrolment in the Bachelor of Business Administration. The Tribunal obtained the applicant’s PRISMS information (Provider Registration and International Student Management System) which indicated that his enrolment in the Bachelor course had been cancelled. It did however confirm that the applicant had enrolled in the Advanced Diploma of Hospitality in 2019. In compliance with s.359AA, the Tribunal provided this information to the applicant and allowed him to comment or respond. He sought additional time to provide evidence of enrolment, which was granted.
Later on the same day as the hearing, the applicant provided a confirmation of enrolment dated 29 April 2020. This confirmed that the applicant is now enrolled a Diploma of Business Administration at IBM College.
On the evidence before the Tribunal, the applicant was not enrolled in a course of study for from December 2018 until mid-2019 and again until April 2020. Accordingly, the applicant has not complied with condition 8202(2)(a).
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’.
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 is a 28 year old man from India. He stated at the hearing that he came to Australia in 2014 for the purpose of studying. Since arriving in Australia, he has completed a Certificate III and IV in commercial cookery. He was previously enrolled in a Master of Technology however did not continue with this course after one year of study. He is now enrolled in a Diploma of Business Administration, which commenced on 27 April 2020, however he stated at the hearing he will not be able to start attending for another couple of months due to depression and anxiety.
There was no evidence presented at the hearing, nor in the department’s file, that the applicant came to Australia for a purpose other than for study. There is also no evidence that the applicant remains in Australia for a purpose other than for study. The Tribunal gives this some weight against cancelling the visa.
The circumstances in which ground of cancellation arose
The applicant stated that he returned to India to get married in 2018, which is when his troubles started. His wife started harassing him and his family to get him to return to India. He did not want to at this stage as he wanted to focus on his studies so that he could eventually open a restaurant in his home country. He stated that he remained in India for around 3 months, which was between the end of one course and the beginning of another.
He said that when he returned to Australia, he resumed his studies for the Advanced Diploma course but his wife continued to contact him on a daily basis asking for him to either return to India or allow her to join him in Australia. this led him to develop depression. He attended a doctor and was prescribed Zoloft 10mg for this, which is continues to take.
The applicant stated that he attempted to resume his studies in mid-2019 but after only a few months of enrolment, the education provider cancelled his enrolment because he was not attending classes.
In January 2020, he was enrolled in the Bachelor of Business course. He stated that this course would commence teachings online in about one month and that it would have already started but for the Covid-19 situation.
The applicant stated that he began attending counselling sessions with Ms Nadia Christafidis in around January 2019 attending monthly. For the last two months, he has been attending once a week. He stated that he does not believe he is well enough to study at the moment but should be able to resume his studies in around 2 months.
A letter from Ms Christafidis dated 22 April 2020 which confirms the applicant is suffering from depression, insomnia and anxiety and that both the prospects of losing his visa as well as his family circumstances have impacted him greatly.
The applicant confirmed that the situation with his wife remains the same and that she continues to contact him daily. He said he needs to take some positive steps to resolve the situation and to talk to her family to sort the problem.
Mr Gurbartap Singh gave evidence in support of the applicant, stating that he has known the applicant for four to five years. He said that about a year ago, the applicant told him he was not feeling well due to a situation with his wife. Mr Singh took him to a doctor around six or seven months ago and this was the first time he attended a doctor. He said the applicant is a “good guy” but his wife has been calling him, asking him to come back to India and threatening him in relation to the dowry.
Mr Rashpinder Sharma gave evidence that he too had known the applicant for around four to five years and that he is aware of the difficulties between the applicant and his wife, who is causing trouble for him. He stated that the applicant is suffering from depression and is very quiet at the moment.
The Tribunal accepts the evidence in relation to the applicant suffering from depression and anxiety, his medical and treatment and the cause of his troubles. The Tribunal accepts that this has affected his ability to study. While it has some concerns about the applicant’s ability to resume his studies, the Tribunal is satisfied that he is currently enrolled in a course of study and that he does plan to re-commence his studies once able to due to both the Covid-19 restrictions and on account of his health.
In light of these circumstances, the Tribunal gives this some weight against cancelling the visa.
The extent of compliance with visa conditions
Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Accordingly, some evidence is given in favour of not cancelling the visa due to his general compliance with the conditions of his visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked what hardship might be caused if his visa were to be cancelled, the applicated stated that emotionally, he already suffers from psychological issues and he does not know what would happen to his life if he were not able to complete his studies. Financially, his father has spent a great deal of money on his studies in Australia.
The Tribunal also takes into account the evidence that the applicant suffers from anxiety and depression for which he receives counselling and medication.
The Tribunal accepts that the applicant will suffer some hardship if he has to return to his home country without completing his studies here in terms of financial, emotional and psychological hardship. Accordingly, the Tribunal gives this some weight against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. However, as noted in the delegate’s decision, the applicant did not respond to the Department’s notice of intention to consider cancellation. The delegate made their decision without any information from the applicant. Accordingly, the Tribunal gives this a small amount of weight in favour of cancelling the visa.
Whether there would be consequential cancellations under s.140
This 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, 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
The applicant gave no evidence about any legal consequences for her, nor did she make any submissions about this.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa. While the applicant could make another student visa applicant offshore, she would not be permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from being granted a further visa for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.
The Tribunal gives no weight against cancelling the visa under this consideration.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. The applicant has not made an application for a protection visa, or any other type of Australian visa. Nor has the applicant raised any concern about any barriers that would prevent him from applying for another type of Australian visa. Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Elizabeth Tueno
Member

ATTACHMENT
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.

[2020] AATA 2127

5 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies