Kamatam (Migration)

[2019] AATA 4111

Kamatam (Migration) [2019] AATA 4111 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Deborah Kamatam

CASE NUMBER:  1901029

HOME AFFAIRS REFERENCE(S):           BCC2018/4220828

MEMBER:Vanessa Plain

DATE:13 August 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 13 August 2019 at 5:47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – genuine student – study history – satisfactory academic progress – undertaken extensive enquiries in relation to desired course – study gaps – factors beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 January 2019 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)(fa)(i) on the basis that it appeared that the primary purpose for holding a student visa is not for the purpose of study and that she is not, or is not likely to be, a genuine student. 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 13 August 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)(fa)(i). 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)(fa) - not a genuine student

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

9. The applicant is an Indian woman who arrived in Australia in 2009 when she was 25 years-old.  Prior to arriving in Australia, she completed a Bachelor of Commerce with majors in sales and advertising at a university in her home country.

10. The Tribunal has had regard to the PRISMS record and the submissions contained in a letter dated 13 December 2018, which was sent by the applicant’s migration agent in response to the notice of intention to consider cancellation of the visa (NOICC) dated 29 November 2019, for the purpose of considering the applicant’s study history and any reasons for changes in study path, non enrolment or lack of study progression.

11. In the NOICC response, the applicant disputed that the ground for cancellation was made out.

12. The applicant gave extensive viva voce evidence at the hearing as to each and every course of study that she has undertaken while in Australia, which was consistent with the PRISMS record and the NOICC response.  The applicant’s oral evidence was corroborated by extensive documentary evidence to which the delegate did not have the benefit of receiving prior to the decision to cancel the applicant’s visa.

13. The applicant’s study history may be summarised as follows:

    (a)In 2009, she commenced a Certificate III in Printing and Graphic Arts at Southern Cross Education Institute.  She successfully completed this course.  PRISMS disclosed that she was originally enrolled in a Diploma of Interactive Digital Media which was cancelled.  The course was cancelled because the education provider no longer offered this course, a circumstance beyond the control of the applicant;

    (b)In 2011 and 2012, she commenced and successfully completed a Diploma of Business and an Advanced Diploma of Management at Southern Cross Education Institute and Western Institute of Technology.  The applicant provided documentary evidence from the education providers to that effect.  The PRISMS record disclosed a cancellation of the diploma of Business, which is inconsistent with the results the applicant has clearly obtained and the credible documentary evidence adduced;

    (c)For approximately 18 months between late 2013 and February 2015, the applicant was in receipt of a subclass 485 visa;

    (d)In March 2015, the applicant commenced a Master of Professional Accounting at Federation University.  She completed some subjects successfully, but due to the sudden death of her father in India (death certificate adduced in evidence) she had to return to India unexpectedly.  The death of her father severely impacted upon her capacity to study.  She asked the university for a deferral of her studies due to suffering from ill health and stress as a consequence of the loss of her father, in circumstances where she was in Australia without any familial support.  The university declined the request, this led to the applicant pushing on with her studies, which clearly suffered and she failed a few subjects, leading to unsatisfactory course progression.  The Tribunal is of the view that in view of the death certificate produced, it was unreasonable of the university to not grant a deferral in the circumstances;

    (e)In mid 2016, the applicant transferred from Federation University to Holmes Institute to further pursue her Master of Professional Accounting, however, she  suffered from ongoing stress and depression associated with her father’s death and the Institute did not agree to her request for a deferral of her studies and she ultimately withdrew from these studies;

    (f)In mid 2017, the applicant commenced a Certificate IV in Business at ALTEC which she successfully completed by early 2018.  Documentary evidence adduced is consistent with the applicant’s evidence that she completed this course, and inconsistent with the PRISMS records of cancellation of the course.  The Tribunal accepts the applicant’s evidence of completion of the course;

    (g)In early 2018, the applicant enrolled in a Diploma of Marketing and Communication and an Advanced Diploma of Marketing and Communication at ALTEC.  This course was ultimately abandoned by the course provider, a circumstance beyond the control of the applicant, who spent several months thereafter attempting to unsuccessfully locate another course provider, through no fault of her own; and

    (h)In December 2018, the applicant enrolled in a Diploma and an Advanced Diploma of Leadership and Management at the Glen Institute, which is scheduled for completion in September 2021.  

14. The Tribunal has had extensive regard to the documentary evidence produced by the applicant as to her academic progress through every step described and set out in paragraph 13 of this decision.  That evidence is consistent with an individual who is diligently paying attention to their studies.  I find that matters contained within that documentation to be consistent with the intentions and actions of a genuine student, that is, a demonstrated and reasonable academic progression in courses of study that are consistent with qualifications obtained prior to entry into Australia.

15. Further, the applicant candidly admitted that her primary focus is to attempt to finish her Masters in Professional Accounting and to that effect, she has undertaken extensive enquiries of alterative course providers, in order to ascertain which course she can undertake that will provide her with credits for the subjects she has already completed in her Masters.  To that effect, the evidence is as follows:

    a.    In March and April 2018 the applicant made enquiries of Southern Cross University and Swinburne University to finish remaining subjects, but never heard back;

    b.    In August and September she applied to Torrens University (through an agent, Australia Fair Migration), but never heard anything from the migration agent as to whether she would be accepted;

    c.    In October 2018, she applied again to Holmes Institute, but did not receive a response from Holmes to the effect that they would accept her reenrollment;

    d.    She made enquiries of several other migration agents regarding which provider she should approach, as she only needed to complete 3 units to obtain her Masters of Professional Accounting qualification, but they all said to her that either they do not offer just a part-time load of 3 units, and/or their intake level has generally dropped.

16. Based on the above, the Tribunal is satisfied that this behaviour is consistent with the behaviour of a student who genuinely wishes to pursue their studies and I give this behaviour considerable weight in favour of the applicant.

17. Further based on the above, the Tribunal notes that although the applicant’s does demonstrate that she has not always been studying continuously, her demonstrated study results, together with the facts matters and circumstances set out above, as consistent with the actions of a genuine student.  Further, she has not breached any conditions in the past and she has not overstayed any of her precious visa(s), neither has the applicant simply maintained an enrolment in a tertiary institution which could well, or potentially, be taken up by a genuine student.

18. The Tribunal further accepts that the reasons for the gaps in the applicant’s study history were not matters reasonably within her control and that the death of her father is a circumstance which drastically effected her ability to study in Australia. 

19. On balance, the Tribunal is simply not persuaded, based on all the evidence before it, that the ground for cancellation for the visa is made out and the Tribunal so finds that the ground for cancellation is not established by the evidence before it.

20. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Vanessa Plain
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.