Kaur (Migration)

[2019] AATA 1642

Kaur (Migration) [2019] AATA 1642 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ramandeep Kaur
Mr Sukhamanpreet Singh

CASE NUMBER:  1814324

HOME AFFAIRS REFERENCE(S):           BCC2018/173678

MEMBER:Nicola Findson

DATE:22 May 2019

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 573 Higher Education Sector visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 22 May 2019 at 9:05am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – reliable witness – studied at lower course level – responsibility for compliance with visa conditions – current enrolment and attendance in a Bachelor of Business – genuine intention of pursuing higher education study – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 1.40A; Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 May 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the delegate found the applicant had breached condition 8516 which was attached to her Subclass 573 Higher Education Sector visa. The delegate went on to consider that the factors in favour of cancellation outweighed those against, and cancelled the 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. 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 second named applicant’s 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 which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments.

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

6. 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

7. 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.

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 attached to the applicant’s visa. This condition requires that the holder of the visa must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

9. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231.

   Does the ground for cancellation exist?

10. The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purposes of the review.  The decision record indicates that on 27 April 2016, the applicant was granted a visa in Subclass 573 Higher Education Sector on the basis of her enrolment in a Graduate Diploma in Public Health and a Master of Public Health. According to the delegate’s decision record, on 23 June 2017, the applicant’s enrolment in her principal course of study was cancelled by her education provider on the basis of unsatisfactory progress in the prerequisite course, the Graduate Diploma in Public Health. The delegate found that the applicant breached condition 8516 of the visa because she no longer satisfied the primary criteria as she ceased to be enrolled in a higher education course, that is, a course of study that was the principal course required by cl.573.231.

11. On 12 March 2018, the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that she had failed to comply with condition 8516 of her visa because she had ceased to be enrolled in a Higher Education Sector course.  The applicant did not provide a response to the Department.

12. Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria… for the grant of the visa’.  Clause 573.231 is relevant.  Condition 8516 contains a temporal requirement in the words ‘continue to be’.  Although there has been no judicial consideration of condition 8516 and the meaning of this wording, in the context of a visa condition which applies at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times.  The use of the term ‘would satisfy’ the criteria, suggests that it applies as if the criteria were being assessed at the time compliance with the condition is required, that is, at any time during the period of the visa.  Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa, irrespective of subsequent re-enrolment.

13. The delegate’s decision records that on 13 March 2018, the applicant obtained an enrolment in a Bachelor of Business from the Sheridan College, to commence on 10 September 2018.  The applicant also presented a Confirmation of Enrolment in her written submission to the Tribunal. 

14. At the hearing, the applicant confirmed that she held an enrolment in a Master of Public Health on her arrival in Australia.  She indicated she was unable to proceed with this enrolment when she began to fail units of the prerequisite course, a Graduate Diploma in Public Health.  She confirmed she was not enrolled in a higher sector course of study after 23 June 2017, and up until the Department issued her with a NOICC.  She acknowledged that this was in breach of condition 8516.

15. On the basis of the information set out in the delegate’s decision, and the documentary and oral evidence of the applicant, the Tribunal is satisfied that when the applicant’s enrolment in a Master of Public Health was cancelled on 23 June 2017, she did not continue to satisfy cl.573.231 or cl.573.223(1A), and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa. There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa. The Tribunal finds therefore that she breached condition 8516 of her student visa.

16. 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 power to cancel the visa should be exercised.

    Consideration of discretion

17. 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’.

18. It is well established that the function of the Tribunal is to arrive at the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60). That case also considered the role of policy, and the Tribunal has had regard to Departmental policy.

19. Prior to the hearing the applicant, through her representative, provided a written submission and documentation, which included (but was not limited to) evidence of her academic achievements in Australia as well as a Confirmation of Enrolment from Sheridan College.  

20. The applicant provided evidence to the Tribunal that she undertook tertiary study in India and attained a Bachelor of Nursing in 2012.  She told the Tribunal that after she completed her degree, she worked in the nursing field for about three years before applying to come to Australia to study further.  She told the Tribunal that she wanted to come to Australia to pursue a highly valued and recognised higher education, before returning to her home country to obtain a better job in the health industry.  She confirmed that she was granted her visa on the basis of her enrolment in her principal course of study, a Master of Public Health.

21. The applicant provided evidence to the Tribunal that she commenced her Graduate Diploma in Public Health following the successful completion of an English Language Bridging course after her arrival in Australia on 7 May 2016.  However, despite attending all the classes and her very best efforts, including seeking additional tuition, she found it difficult to meet the requirements of the course.  She indicated to the Tribunal that she found the education system in Australia to be very different to India, and struggled to adjust. She indicated that in December 2016, after failing units in her first Semester, she felt feelings of failure and disappointment and did not know what to do.  She indicated she wanted to stay in Australia and study, so, she consulted a migration agent and on his advice enrolled in another package of courses which it was hoped she would find easier, including a Diploma of Leadership and Management, an Advanced Diploma in Management and Leadership, and a Graduate Diploma in Portfolio Management.  She claims she was told by the agent that as long as she was enrolled in a Graduate Diploma, she was complying with her visa conditions, including condition 8516. The applicant told the Tribunal that she did not have any reason to doubt the advice she had received and believed she was not breaching any visa conditions.  She also indicated she enjoyed her new study pathway.  She commenced her Diploma course in January 2017 and successfully completed it in October 2017.  She said she then commenced the Advanced Diploma in November 2017, and notwithstanding her visa cancellation, completed that course in September 2018. 

22. The applicant provided evidence to the Tribunal that indicated she was shocked to receive the NOICC from the Department and immediately sought further advice from the agent who had assisted her in changing her study pathway.  She indicated that she was told by the agent not to respond to the NOICC, and to obtain a confirmation of enrolment in respect of a Bachelor degree course.  She was told that this action would satisfy the Department.  The applicant indicated to the Tribunal that she, naively, again took the agent’s advice and had no appreciation of the seriousness of her situation.  She indicated to the Tribunal that she had been progressing well in her business courses, so she enrolled in a Bachelor of Business, paid the required fees and had every intention of undertaking this course. 

23. The applicant indicated to the Tribunal that she deeply regrets relying on the advice of her previous migration agent.

24. At her hearing, the applicant told the Tribunal that she obtained study rights after her visa was cancelled by the delegate and completed the Advanced Diploma in Management and Leadership before commencing her Bachelor course.  She indicated that she has almost completed her first semester of a Business degree at Sheridan College.  She indicated that she is enjoying the course and is progressing well.  She indicated that she would like to complete the three year course, and use this qualification to obtain a managerial position in a hospital when she returns to India.  She indicated that attaining a higher education in Australia will give her and her family a better life in their home country.  She indicated that she has been (and remains) committed to achieving a higher education in Australia; a lot of money has been spent to enable her to become qualified; and she will feel like a failure if she has to return to India without a tertiary qualification.

25. The evidence before the Tribunal also indicates that despite giving birth to a baby girl shortly before her visa was cancelled, and suffering postpartum depression as well as stress associated with her visa issue, the applicant has remained enrolled and continued to do well in her studies. She indicated that her parents (who visited her around the time of her baby’s birth) as well as her husband have provided her with emotional and practical support to enable her to continue studying during a very difficult period in her life. 

26. At hearing, the Tribunal discussed with the applicant the discretionary factors the Tribunal would consider in making its decision and all of the relevant circumstances in her case.  In assessing the evidence, the Tribunal notes that the applicant presented as a reliable witness.  It can be satisfied that it can rely on her oral evidence to make many of its findings.

27. The purpose of the Higher Education Sector visa is to enable the visa holder to undertake study at a higher education level. The Tribunal accepts that the applicant was not enrolled in a higher education sector course from June 2017 to March 2018 and notwithstanding that she was enrolled in and studying business courses at a lower course level, the Tribunal finds that she was not fulfilling the purposes of her travel to and stay in Australia to study a higher education level course.  The Tribunal considers the breach to be significant and gives this factor some weight in favour of the visa being cancelled.

28. The Tribunal has considered the circumstances in which the ground for cancellation arose. She claims, essentially, that she struggled to adjust when she arrived in Australia and to progress to her principal course of study. She also claims she relied on the misinformed advice of a migration agent in relation to her education options, when she was not satisfying the requirements of her principal course of study.  The applicant claimed that it was not until she received the NOICC from the Department that she became aware that she was in breach of her visa conditions, but even then did not appreciate the severity of her situation.  The Tribunal accepts that the applicant, in response to the NOICC, remedied the breach and enrolled in a Bachelor course on 13 March 2018. 

29. In the Tribunal’s view, the applicant, as the holder of the visa, had the responsibility to familiarise herself with the conditions of her visa and what these required her to do.  The applicant would have been advised at the time of the visa grant that her visa was subject to certain conditions.  In the Tribunal’s view, the applicant was obliged to ensure that she was familiar with the requirements of these conditions.  It considers that relying on advice from her previous agent was not enough.  Ultimately the responsibility for compliance with visa conditions lies with the visa holder.

30. As indicated in the delegate’s decision, the applicant had her enrolment cancelled by her course provider in the Master of Health on 23 June 2017, and she did not enrol in another higher education course until 13 March 2018.  The Tribunal accepts that she has been enrolled in lower educational sector courses, however her visa required her to be enrolled in the higher education sector.  The Tribunal accepts the applicant’s credible evidence that she has been doing well in her studies and this is supported by the documentary evidence she provided to the Tribunal.  The Tribunal accepts that her studies in this sector have been the Diploma of Leadership and Management, and an Advanced Diploma in Management and Leadership, which she completed in October 2017 and September 2018 respectively. It accepts that the applicant has now enrolled in a business degree in which she is interested and that she has been attending the course and is committed to completing the degree.  The Tribunal considers the applicant’s current enrolment and attendance in the Bachelor of Business course significant.  The Tribunal is satisfied that the applicant has a genuine intention of pursuing higher education study in Australia. 

31. In the circumstances of this case, the Tribunal gives this factor some weight in favour of the visa not being cancelled. 

32. With respect to the degree of hardship, the applicant indicated to the Tribunal that she, with her family’s support, wants to continue her higher education sector study in Australia.  The evidence before the Tribunal is that the applicant’s family would be disappointed if she returned to India without a tertiary qualification, and she would feel as if she has wasted a significant amount of money and failed if she returns empty handed and without the ability to obtain a better job to support her family.  She told the Tribunal her “future would be spoiled”. The Tribunal gives this factor some weight in favour of not cancelling the visa.

33. The Tribunal has considered the extent of compliance with visa conditions.  It is the case that the applicant has breached condition 8516.  However, there is no evidence that the applicant has breached other conditions of her visa.  In addition, the evidence of her actively engaging in studies from the time of her entry to Australia in May 2016, as well as her re-enrolling in the Bachelor degree when she became aware that she was in breach of a visa condition, is indicative that she wishes to study in compliance with her relevant visa conditions.  The Tribunal therefore gives this factor little weight towards her visa remaining cancelled.

34. According to the delegate’s decision record, there is no information before the delegate to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department.   The Tribunal gives this little weight towards the visa not being cancelled.

35. The Tribunal has considered that if the visa remains cancelled, this will result in the consequential cancellation of the visa of the applicant’s husband, who was granted his visa on the basis of being a member of the applicant’s unit.  The Tribunal also notes that the applicant had a baby, in Australia, on 8 April 2018.  Although this child is not included in the review application, pursuant to s.78(2) of the Act, she was taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions as the applicant’s.  When the applicant’s visa was cancelled, the child’s visa was also cancelled by operation of law under s.140(3) of the Act.  Accordingly, if the applicant’s visa remains cancelled, this will result in the consequential cancellations of the visas held by the applicant’s husband and daughter. The Tribunal gives this factor some weight towards the visa not being cancelled.

1. There is nothing to suggest, and the applicant does not claim, that any international obligations would be breached as a result of the cancellation. The Tribunal gives no weight to this consideration.

2. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives these consequences some limited weight in favour of not cancelling the visa.

3. The Tribunal recognises that the cancellation of a visa is a significant matter and has weighed the evidence before it, including evidence that was not available to the delegate at that time of decision. The Tribunal considers that the discretionary factors above indicate that the applicant should be given an opportunity to remain in Australia to engage in higher education sector study.

4. The correct and preferable decision therefore is not to cancel the visa. The Tribunal, in reaching this decision, notes that had the visa not been cancelled it would have already ceased naturally.  The Tribunal is conscious that setting aside the visa cancellation will allow the applicant the opportunity to be considered for a further student visa while in Australia, to enable her to complete her Bachelor of Business course.

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

   DECISION

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

7. The Tribunal has no jurisdiction with respect to the second named applicant.

   Nicola Findson
   Member