Kaur (Migration)

[2020] AATA 2563

Kaur (Migration) [2020] AATA 2563 (10 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep Kaur
Mr Amrinder Singh Rangley

CASE NUMBER:  1911998

HOME AFFAIRS REFERENCE(S):          BCC2019/559212

MEMBER:Genevieve Cleary

DATE:10 May 2020

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 10 May 2020 at 7:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in a registered course – circumstances beyond the applicant’s control – impact of father’s death – grief and financial issues – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 198, 348
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 10 May 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) 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 from 2 June 2018.  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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 16 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Meenu Rani.

5. The applicants were represented in relation to the review by their registered migration agent.

6. On the morning of the hearing the applicants provided to the Tribunal:

   ·A letter to the Tribunal, undated from Mandeep Kumar;

   ·A letter to the Tribunal, undated, from Kajal;

   ·A letter to the Tribunal, undated, from the applicant’s mother;

   ·A letter from Saint Nirankari Mandal Australia Inc, undated, attesting to the applicant’s attendance at congregation sessions regularly for the last 2 years and 4 months.

7. The Tribunal has also had regard to the Department file, including, but not limited to, a death certificate dated 29 December 2017 sent by the applicant to ‘Queensland General Cancellations’ by email on 8 April 2019, with a request that the cancellation of the applicant’s visa not occur, and an email to the same address dated 17 March 2019 setting out that the applicant had been very stressed when she found out her father had died, and had been too stressed to re-enrol. Also on that file is confirmation that her enrolment in the Master of Information Technology was deferred for the first semester in 2018 due to family loss.

8. On 23 September 2019 the Tribunal also received from the applicant a number of notifications about the applicant’s password from the University of Western Australia, and confirmation of the deferment as set out in the paragraph above.

9. It is noted that prior to the hearing, the applicant’s representative notified the Tribunal that the applicant would be largely relying on the contents of the email dated 17 March 2019 as to why her visa should not have been cancelled.

10. 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

11. 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?

12. 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(c)(ii).

13. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

14. The applicant was originally enrolled in a Masters of Information Technology at the University of Western Australia.  She completed the first semester of that course in the second half of 2017, however then deferred her studies to June 2018 after the death of her father.  She did not return to the University and her enrolment was cancelled on 6 September 2018.  She has not been enrolled in any course since.

15. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

16. 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.’

    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

17. The applicant came to Australia to study a Masters of Information Technology at the University of Western Australia.  She commenced in August 2017.  In India, she had completed a Bachelor of Science at GCG in Punjab.  The course took 3 years and she finished in 2015.  She commenced after high school.  Once completed, she studied English for IELTS to gain admission in an Australian university.  She felt she had sufficiently studied in English in 2016, and commenced making arrangements to come to Australia.   

18. She wanted to come to Australia to get a better education than she could in India.  Her father, who had a dairy, wanted this too for her.  She wanted a job in the IT sector, although she did not know, even at the stage of the hearing, what that job would be. Her main goal was to get a better job in India than she would otherwise be able to obtain on her bachelor’s degree alone.  To her a better job meant it would be a job with a better salary, providing a good lifestyle and the ability for her and her husband to own their own house.  The applicant said several times at the hearing that her mother was not educated and was a house wife, and that she had struggled to perform simple paper work after her father died, and it appeared that this has left an impression on the applicant.

19. There is nothing in the information before the Tribunal that suggests that the applicant did not come to Australia with a genuine intention to study, and the Tribunal places some weight in her favour on this factor.  In addition, from what the applicant said, and her family circumstances, it appears that an education, above what those in her country and family have attained, is important to her, and there is also some weight to be given to that factor in her favour. 

20. Her father was to pay for her studies in Australia.  She was not going to study anything else after the Masters, which was to take 2 years.   After completion she and her husband were to return home.

21. It is noted that it appears from the Provider Registration and International Student Management System record that the applicant had been enrolled in a similar course in early 2017, and another course in 2014, a Diploma of Hospitality, however the applicant said that prior to her enrolling in the Masters of Information Technology, to commence in the second half of 2017, she had not been enrolled in any other course in Australia, and that this must be an error.  The Tribunal accepts that it is an error in the records and does not place any weight on these entries. 

22. The applicant has family in India – her mother and 2 brothers.  Her brothers are unmarried and they live with her mother.   One has finished studying and is at home helping their mother, the other works in a factory as a clerk. 

23. She has been married since 2015.  Her husband came with her to Australia and he commenced work, first in a factory and then in a restaurant.  That work stopped in May 2019 as he no longer has the right to work given the cancellation of the applicant’s visa. Her husband’s brother and his wife live here; they are permanent residents. The applicant and her husband live with them. 

24. The applicant has also had work here.  She worked in a restaurant for a few months in December 2018 until February 2019.  She worked 20 hours per week or less.  She then moved to a job in a restaurant in Capel, but that ended because the visa was cancelled.  She started working to earn some money and to ‘relax her mind.’ She explained that once she started feeling better she wanted to do something with herself, and as she did not have a current enrolment, she worked. She said that if her visa had not been cancelled, she would have enrolled in studies and perhaps tried to work as well, although she may have looked for work elsewhere, closer to the university.

25. The letter provided to the Tribunal from Mandeep Kumar, a friend of her brother in law’s, speaks of the applicant fading before her eyes when they heard of her father’s death.  It also speaks of the applicant and her husband playing “a significant role in the Australian community,” by doing charity work, giving blood, volunteering and cleaning public places.  While the applicant did not talk about these things at the hearing, the Tribunal accepts that she is now an active member of the community in Western Australia.  This may suggest that she has developed ties to the Australian community, however it may also suggest, in this case, that the applicant is a person who wants to better her life and others’ and accordingly I do not place weight against the applicant for her wanting to contribute to her local community.

26. Despite the existence of family in Australia, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia over and above study, or that she had compelling family reasons for travelling to Australia for purposes other than study.  The Tribunal gives her some weight in her favour for this factor, and therefore weight against the visa being cancelled.

    The extent of compliance with visa conditions

27. While she has been here the applicant’s mother in law came to visit. The applicant returned to India in July 2017 and March 2018, assisting her mother in law to return to India after she had visited Australia, as she was told by family that her mother in law could not return on her own.  Her husband already had a job at the meat factory, and he did not to ask for leave – she was the one who was expected to take the trip.  She has not been back to India since then.

28. The applicant told the Tribunal that she has not applied for any other visas either in Australia or for entry elsewhere.  There is no other information before the Tribunal to suggest that the applicant has breached other conditions of her Student visa, or any other visa, either in Australia or elsewhere. 

29. The applicant told the Tribunal that she has worked while in Australia and has worked 20 hours per week; there is nothing before the Tribunal to suggest otherwise, and I accept that she has, other than the lack of enrolment, complied with her visa conditions. Her compliance in relation to those other conditions is in her favour.

30. The breach of condition 8202(2) is significant, in that it commenced in June 2018, after the applicant’s deferral of her course ended, and continued through the next semester, and into a second semester – being semester 1 in 2019.  However, as is discussed below, when weighed with the reasons for the breach, the length of the breach does not outweigh those reasons; while the extent of the breach weighs in favour of the visa being cancelled, it does not outweigh the other factors taken into account.

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

31. The applicant’s family has spent approximately $20,000 for her studies, and more for visas and travel expenses. The applicant said that it will affect her future if she cannot complete her studies, and she will not be able to explore her future in India. She felt it would effect her family because they had spent so much money but would see no return for it. It was her father’s dream for her to get a higher education, and it would be sad if she could not fulfil that.   

32. The Tribunal accepts that any visa cancelation would cause some stress to a student and her family. The Tribunal also accepts that the cancellation of a visa is disappointing and that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study. The Tribunal gives these considerations a little weight towards the visa not being cancelled.  The Tribunal also accepts that in this case the applicant feels that she is letting her father down by not completing her studies here, and that will cause her to feel shame and sadness, given he is now deceased. The Tribunal gives this a little weight in her favour.

    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

33. The Tribunal accepts that the applicant’s father died, and that this was a shock to her.  She took time to grieve, which is also understandable, particularly being in a foreign country. She acted responsibly when she applied to defer her studies.  She deferred until 2 June 2018.  However, after that time it seems she did little to rectify the situation.  She contacted the university in March and April 2019, but that was more than 6 months after she was supposed to return to her studies, her deferral being complete in June 2018. 

34. When she received the Notice of Intention to Consider Cancelation from the Department, dated 1 April 2019, the applicant said she asked for another 2 weeks to arrange a new confirmation of enrolment.  After 4 weeks, she had not done so and it appears that she did not contact the Department again. Her visa was cancelled. 

35. The applicant’s explanation is that her father’s death was a shock to her, and she found it difficult to cope with her grieving, and found it difficult to recover.  She did not seek assistance from a medical or other practitioner, but she did seek a deferral in her studies for a semester, which was granted. She told the Tribunal that her mother did not understand anything, and is not educated.  She told the Tribunal at the hearing that she learnt that the payment of fees was going to be a problem in September of 2018, so after the deferral of her course was finished.  She felt that this was because her mother was unable to process what was to be done to fund her studies here.  She said that this effected her, already feeling still vulnerable because of her father’s death, and she felt she did not want to study anymore because of her mental stability, but she also felt that she could not ask for money to enrol anyway – she wanted to give her mother time to complete her documentation for the money, and become organised. 

36. During the time of deferral of her studies, the applicant did not do anything. Her husband was working at that time, but each day she stayed at home and she felt she could not make decisions and she stopped interacting with people.  She went to the mission and that helped her a lot.  She felt she was getting better by the end of 2018 or January 2019.

37. While the applicant said she knew that she should have told the Department that she was struggling, she was not able to do anything or make any decisions.  Even when her course was cancelled she says she was not stable physically or mentally.  She did not ask the university to continue the leave when it was up in June 2018.  She felt that at that time she did not want to do anything, or study, and could not go anywhere.  She could not really think about anything, because of stress and anxiety.

38. In addition to grieving for her father, her mother has had health problems.  In her letter to the Tribunal her mother said that after her father’s death she was unable to pay the applicant’s school fees.  She tried to hide this from the applicant, however someone told her.  She said that this meant that the applicant’s study became “disarranged and unfocused.”

39. The applicant’s sister in law gave evidence, saying that after the applicant’s father died the applicant was “dead” to them.  They had thought that her father’s death may have had that effect on her, and did not tell her about her father’s death for more than a month, but when they told her she did not even cry; she just remained silent.  That lasted for more than a month.  She noticed that the applicant improved after she forced her to go to the church, or the mission, and slowly she came out of herself.  She started going to the church 2-3 months after her father died, but before then they could not get her out of the house.  She was not herself for quite a while, but she was almost back to her normal self by the end of 2018, although she had times where she appeared to have slipped back to the way she was.

40. The applicant went to UWA with her friend in February 2019 because she wanted to finish her studies, and she did this after speaking to her friends and asking for their advice.  She felt that by February 2019 she had recovered enough to start to plan.  She spoke with family friends here and she spoke to her family in India.  The university told her when she went to them that they had cancelled her enrolment, so she needed a new one.  She contacted her agent and asked her mother to send her more money. 

41. Her preference was going back to the Masters of IT at UWA, however at that time she said that the university told her she needed to contact the Department of Home Affairs.  By March 2019 she was ready to enrol and her mother was ready to send her the money - approximately $20,000.  It took her mother a long time to get the money – the applicant described her as “a house wife,” and said her father used to take care of those things.  For a year after his death she was unable to do paperwork.  She had not dealt with banks before.  This took until the end of March.  It was not until the first week of April that she said she was in a position to send the money.  However, by that time, the applicant knew the Department were considering cancelling her visa, and she did not want to spend money on enrolling if her visa was to be cancelled.  As a result, she says she asked the Department for 2 weeks to enrol, and to obtain a confirmation of enrolment.

42. In fact, in her email to the Department of 17 March 2019, she asked for several more months to complete her course, which was in response to an email of 13 March from the Department seeking her updated address.  It appears, from the Department file, that there was no response to this request for delay from the Department, and the Notice of Intention to Consider Cancellation (NOICC) was sent on 1 April 2019.

1. She says she had no idea that the Department would contact her after the cancellation of her enrolment. She told the Tribunal she did not understand that having no Confirmation of Enrolment would be a breach of one of her conditions.  She said she realised that that was the case when she started to receive emails from the Department’s visa cancelation department asking for her current address, and that they must be thinking about cancelling her visa. It was to those emails that she replied telling the Department about the death of her father and the stress she had been under, the email the applicant relying on as her written submissions to the Tribunal being dated 17 March 2019.

2. After receiving the NOICC the applicant again wrote to the Department, 7 days later, requesting 2 more weeks to enrol. Again, the Department did not respond directly to the email, however the applicant accepted in the hearing that she did not pursue the enrolment, as, as has been said above, she was worried that by enrolling, she would lose her mother’s money if the Department went ahead and cancelled her visa anyway.  The notice cancelling the visa was sent to the applicant on 10 May 2019.  The applicant accepted, in the hearing, that it was her responsibility to address her non-enrolment, and that she should not have sat back and waited for the Department to respond.

3. If the Tribunal does not cancel her visa, she will complete her studies – she will apply to resume her course at UWA.

4. The cancelation is not due to relationship breakdown, and therefore I give that no weight.  However, the Tribunal may take into account whether the cancelation arose because of circumstances beyond the applicant’s control.  In the applicant’s case, the death of her father was of course beyond her control, as was the grieving process.  Her sister in law gave evidence of the difficulties she saw the applicant having, and the applicant was then beholden to her uneducated and financially dependent mother, and the Tribunal means no disrespect to the applicant or her family by that reference.

5. The applicant did seek to have her studies deferred for a semester, and therefore can be said to have tried to ameliorate the situation to some extent, however she did not further engage with the Department or the university, which did not help her situation.  Having weighed up all of the evidence the applicant has provided, the Tribunal is satisfied that the applicant’s visa was on the whole cancelled due to circumstances beyond her control, and while she did not take affirmative action after the deferral of her studies ended, the Tribunal accepts that she was still struggling with her grief to some extent, and was hampered by her mother’s position.  While it may appear suspicious that she felt better when she started to receive communications from the cancellation section of the Department, the Tribunal has not formed the view, taking all matters into account, that that suspicion carries such weight that it outweighs the grief and financial issues with her mother that the applicant has provided evidence on.

6. As a result, the Tribunal is not satisfied that the reasons for the cancellation weigh in favour of the visa being cancelled.

   Past and present behaviour of the visa holder towards the department

7. According to the Decision Record of the Department there was no evidence that the applicant had been uncooperative towards the Department. I give this some little weight in her favour.  There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.

   Whether there would be consequential cancellations under s.140

8. The applicant’s husband was granted a secondary Student visa on the basis of being a member of the family unit of the applicant, who is the primary visa holder. There is no information before the Tribunal that suggests that the applicant’s husband has applied for a visa independent of the primary visa holder, or that the applicant’s husband has ceased to be a member of the applicant’s family unit.  If the Tribunal decides to cancel the applicant’s Student visa, the this will result in the automatic consequential cancellation by operation of the law under s 140 of the Act of the secondary visa of the applicant’s husband.  This will mean that the family unit will not be split as a result of the cancellation, and therefore the Tribunal cannot give weight to the possibility that they will be separated if the primary applicant’s visa is cancelled.

   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

9. If the current visa is cancelled, this will result in the following:

   a. The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   b.   The applicant will have limited options to apply for further visas in Australia;

   c.   The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Requirement 4013 to be met.

10. I give little weight to this consideration in favour of the applicant because:

    ·       These are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·       It reflects the seriousness with which the Department takes this type of cancelation ground;

    ·       The applicant will be eligible to apply for a bridging visa while she makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that she does not co-operate in applying for a bridging visa.

    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

11. The applicant said she had come here to study, and she would like to complete the Masters course before she returns with her husband to India. The applicant did not indicate any reason for fear of return to India for either her or her husband.  I find there is no information to support that any international obligation would be breached and give this factor no weight.

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

12. This is not relevant and I give it no weight.

    Any other relevant matters.

13. I find that there are no other relevant matters to consider.

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

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicant.

    Genevieve Cleary
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder must be enrolled in a 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.