Kaur (Migration)

[2024] AATA 510

Kaur (Migration) [2024] AATA 510 (22 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manbir Kaur
Mr Makhan Singh
Master Agamjot Singh

REPRESENTATIVE:  Mr Rashpal Singh Chumber (MARN: 1572649)

CASE NUMBER:  2212356

HOME AFFAIRS REFERENCE(S):          BCC2022/2178652

MEMBER:David McCulloch

DATE:22 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.

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

Statement made on 22 January 2024 at 9:30am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant was not enrolled in a full-time registered course – breached condition 8202 – an extensive period of non-enrolment – foot injury of the applicant was not diagnosed for many months after the enrolment was cancelled – father-in-law’s medical condition – poor record as a student in Australia – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 August 2022 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 (Cth) (the Act).

2. The applicant is a national of India born on 17 March 1990. The visa that has been cancelled was granted on 15 January 2021 with a stay period to 15 March 2023. That visa was subject to condition 8202.

3. On 12 July 2022 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa as she ceased to be enrolled in a registered course on 19 April 2021. The applicant provided a response to the NOICC on 28 July 2022 requesting an extension of time to provide documents. This extension was granted on 1 August 2022. The applicant provided a response to the NOICC on 8 August 2022 and again on 15 August 2022. On 17 August 2022 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. 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 visas were 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 applicants.

6. The applicants appeared before the Tribunal on 12 December 2023 at 9.30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. However, the applicant elected mainly to communicate in English, only using the interpreter occasionally.

7. The applicants were represented in relation to the review. The representative did not attend the hearing.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 (Cth) (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?

10. 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),

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b),

    ·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).

11. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course.

12. The delegate’s Decision Record on the Department file indicates that she has not been enrolled in a registered course of study since 19 April 2021.

13. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant's obligation under condition 8202(2) is to be enrolled in a registered course.

14. On 8 August 2022 the applicant provided the following written statement as part of their response to the NOICC (headings omitted, not corrected for spelling or grammar):

    Dear Delegate,

    I represent myself in the above-mentioned intention to cancel subclass 500 visa case that is currently under consideration.

    Background

    1.I am the visa holder, Manbir Kaur, is an Indian Citizen currently residing in Australia on a subclass 500 visa which was granted on 15 January 2021.

    2.Due to the global outbreak of Covid-19, I was unable to continue with my studies with the Holmes college.

    3.I hereby wish to present my justification and evidence which warrants the Department to not to cancel the subclass 500 visa.

    Circumstances

    4.My fathers in law suffered with a chest pain in the month of Feb 2021 and we were under total shock at that time, and we were not able to concentrate on anything. His health was not good since then.

    5.Then I tried to enrol in MBA online in the month of April 2021 however, the portal of the college was not working, and I tried to enrol but failed to do so because of the portal issue. I have sent the email to the college regarding that on 14/04/2021 but never got any reply from the college. I have tried to give calls to the college but did not get any reply from Holmes college. (I have attached the Email sent to college on 14/04/2021)

    6.I have informed the college on 09/04/2021 for the enrolment that I will be late by two weeks for enrolment due to my father in law’s health issue and asked for the extension for the enrolment. (Email dated 09/04/2021 has been attached)

    7.After that when I did not get any reply from the Holmes college then we asked for the release letter on 15/06/2021 from the college and asked for the form however no reply was received from the college, we were shattered and under stress due to the college behaviour. (Email dated 15/06/2021 has been attached)

    8.Due to the college behaviour and stress, I got sick in meanwhile resulting which I got sick with plantar fasciitis due to which I was not able to walk and was completely bedridden for few months and was not able to follow up from the college. (Medical Letter is attached)

    9.We were waiting for the reply from the Holmes college since then and got the cancellation notice from the department for visa cancellation.

    10.The Holmes college never informed about the cancellation of COE, and we were under impression that I am still enrolled in the college even the Holmes college never offered any refund to me due to non-enrolment, so that I could be able to know that the Holmes collage has cancelled my COE. Neither the Holmes college replied to my emails nor refunded the fees paid by me.

    11.Now I tried to get the admission in any other college and the colleges did not gave me admission in master’s college.

    12.The absence from the college is neither intentional or deliberate and I have no intentions to breach any of my visa conditions.

    13.I have made a genuine effort to keep my enrolment active. However, the college cancelled my COE without informing me.

    14.If the Delegate were to cancel my subclass 500 visa, this decision would have irreparable damage to me and my future. For me, a visa cancellation would have severe consequences and my credibility would be questioned also a three year exclusion period will be applicable to me and my family and due to S48 bar I will be having only limited visas to apply in Australia.

    15.A similar decision has been made in the following case Suthar (Migration) [2022] AATA 2000 (18 June 2022)- MIGRATION – cancellation – Student (Temporary) (Class TU) visa –Subclass 500 (Student)– Federal Circuit Court remittal – genuine student – applicant ceased enrolment – gap in studies – conduct of previous representative – limited academic progress – financial hardship – decision under review set aside

    Conclusion

    I committed to maintaining my lawful status in Australia and has maintained my genuine intentions to abide by the conditions of my subclass 500 visa, but the college did not pay any heads to my emails. I have made a genuine effort to keep my enrolment active. However, the college cancelled my COE without informing me.

    Till now I have maintained my lawful status in Australia and has abided by all the conditions that my visa has been subject to.

    Hence, I request the Department not to cancel my 500 visa and grant me time to enrol myself in a course so that I can finished my course.

15. In addition to their written response, the applicant also provided the following documents in response to the NOICC:

    ·Doctor’s certificate issued by Ami Care Hospital on 28 July 2022 in the name of Mr Baldev Singh. The letter states the patient was suffering from CAD and atypical chest pain.

    ·Three emails as follows from the applicant to [email protected]:

    a.    dated 9 April 2021 indicating that the applicant could not come for enrolment this week but will definitely come next week. She knows she has been two weeks late but had some personal issues. If she does not come by 12 April then she indicates that action can be taken.

    b.    dated 14 April 2021 asking that she be reduced to two subjects as she has a child to pick up from school every day and her husband is the only one working and paying expenses. The applicant indicates that if she studies four subjects she could not concentrate on her studies and child and will have financial difficulties.

    c.     dated June 2021 asking for a release letter because she is moving to Adelaide and needs to apply for another visa. She asks as to the procedure.

    ·Patient Health Summary from AQ Family Practice in the name of Manbir Kaur, issued on 21 July 2022. The report indicates that the applicant was diagnosed with plantar fasciitis on 13 October 2021.

    ·Published Tribunal Decision, Suthar (Migration) [2022] AATA 2000 (18 June 2022). The facts of this decision, broadly speaking, are that the applicant was initially enrolled in one course, however he had poor results, struggled to find employment, and did not complete any subjects. The applicant in this case then enrolled in a second course at a different institute however still experienced the same issues. As a result, the applicant’s mental health declined, and he was considered not a genuine student. The applicant accepted it was his responsibility to keep on top of his mental health and comply with his visa conditions. The Tribunal noted that the applicant had recently demonstrated his managing of his mental health conditions ­and set aside the Department decision, requesting that they monitor the applicant for any future transgressions in respect to his studies and visa compliance.

16. A written submission was provided to the Tribunal on the applicant’s behalf dated 14 November 2023. It repeats information contained in the applicant’s statement extracted above. It indicates that the applicant is currently studying a Graduate Diploma of Management (Learning) which will finish on 5 January 2025. The applicant would like to complete this course.

17. The above matters are taken into account in considering the exercise of the discretion as to whether the visa should be cancelled, outlined below.

18. In the hearing the applicant agreed that she had not been enrolled in a registered course from 19 April 2021 from the cancellation of the Master of Business Administration (Professional) (MBA) until she enrolled in a Graduate Diploma of Management (Learning) on 11 August 2022.

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

    Consideration of the discretion to cancel the visa

20. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

21. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department's Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder's control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.

22. The various explanations as to why the applicant was not enrolled in a registered course for a period of approximately 16 months are outlined above. These were explored in the hearing.

23. The applicant indicated in the hearing that she was very stressed at the time the MBA was due to start in March 2021 because of heart issues being faced by her father-in-law. The Tribunal noted that the medical report indicating heart issues suffered by the father-in-law is dated much later, in July 2022. The applicant maintained that her father-in-law suffered difficulties previously which caused the distress in the first half of 2021.

24. The Tribunal put to the applicant that it might accept that the illness of her father-in-law in India may create stress for the applicant but had concerns that it would cause an inability to study. The Tribunal also indicated that on the evidence provided at the hearing the applicant’s husband continued to work during 2021 and that it might be thought that he would be more seriously affected by the health issues of his father. The applicant referred to the loss of her own father and maintained the distress that was caused by the medical issues of her father-in-law in around March 2021.

25. The applicant referred to her own health issues with her foot in terms of the diagnosis of plantar fasciitis. The Tribunal noted to the applicant that based on the evidence provided this diagnosis was made on 13 October 2021, months after the MBA studies started in March 2021. The applicant agreed that injury did not occur until later and maintained it was a cause of non-enrolment from that time.

26. The Tribunal explored with the applicant the impact on her mobility of this condition. The applicant indicated she was able to walk, but with difficulty. The applicant indicated that she did not need the aid of crutches or a cane to walk but there were mobility issues.

27. The Tribunal noted to the applicant that she had in her written explanation claimed that this condition had caused her to be bedridden ‘for many months’. The Tribunal put to the applicant this seemed quite inconsistent with the impact she described in the hearing of this condition.

28. The applicant then sought to claim that she in fact was bedridden. Upon clarification the applicant indicated that she was not bedridden for many months, but for several weeks. The Tribunal put to the applicant that this still seemed inconsistent with the evidence she had initially given in the hearing as to the impact of this condition. The applicant maintained that she was effectively in bed with the condition for a period.

29. The applicant in the hearing referred to her email contacts with the education provider in relation to her not attending classes. The applicant indicated that the college never responded to her. The applicant indicated that she was not notified of the cancellation of her visa.

30. The Tribunal noted to the applicant that in the email dated 9 April 2021 that she sent to the education provider she explains her failure to attend because of personal issues. The email states that if she does not come to classes before 12 April then action can be taken by the education provider.

31. The Tribunal noted to the applicant that she did not subsequently attend classes and on 19 April 2021 the education provider cancelled the enrolment for non-attendance. The applicant maintained the failure of the education provider to respond to her email address or phone calls.

32. The Tribunal explored with the applicant phone calls that she made to the education provider in terms of her inability to seek to engage with a representative of the education provider. The applicant maintained that the education provider never called her back. The Tribunal asked the applicant how many phone calls she would have made. The applicant said she could not recall. The Tribunal asked if there were multiple calls. The applicant indicated that there were a few.

33. The Tribunal noted to the applicant that she had been studying in Australia since 2014 and therefore clearly had had experience with the education and student visa systems. The Tribunal put to the applicant that it may make allowances for some period of non-enrolment for the reasons claimed, but it had difficulty accepting that the various reasons claimed for non-enrolment reasonably explain non-enrolment in a registered course for a period of approximately 16 months. The applicant maintained that the various difficulties claimed caused this inability.

34. The Tribunal notes this response but has difficulties accepting that the various claimed extenuating circumstances justify the applicant not being enrolled in a registered course for a period of approximately 16 months. The applicant should well have known that her enrolment was in jeopardy by not attending classes. Indeed, the applicant acknowledged this in the email to the education provider in April 2021 and accepted that if she did not attend classes the following week that the education provider could take action.

1. Even if the Tribunal were to accept that there were deficiencies in the education provider responding to the applicant in terms of her enquiries or failing to notify her of the cancellation of enrolment, the Tribunal considers in all the circumstances that the applicant should have taken greater steps to ascertain what had happened in relation to her enrolment as she would have been well aware of the significant risk to her enrolment by non-attendance.

2. The foot injury of the applicant was not diagnosed for many months after the enrolment was cancelled and therefore does not explain non-enrolment for the period before the diagnosis. The Tribunal has credibility concerns with the original written claims by the applicant that the injury caused her to be bedridden for ‘many months’, when the applicant’s initial evidence at hearing was that it only created some difficulty walking without now needing the use of a crutch or cane. The Tribunal has doubts as to the truth of the claims at hearing following the inconsistency being put to her that in fact the injury caused her to be bedridden for ‘a few weeks’. Even if the Tribunal were to accept that this injury caused her to be bedridden for a few weeks it does not justify the applicant not being enrolled in a registered course for a period of approximately 16 months.

3. The Tribunal also has difficulty accepting that distress for the applicant in relation to the health issues of her father-in-law justify her not being enrolled in a registered course for approximately 16 months. If his medical conditions caused such emotional upset for the applicant for such a long period, then the applicant should have sought a deferral from enrolment on medical and compassionate grounds.

4. The applicant has provided evidence of completing in Australia previously a Bachelor of Professional Accounting. The applicant has also provided evidence of completing a number of units in a Bachelor of Business, albeit not completing the course.

5. The Tribunal takes this reasonably positive past study history of the applicant in Australia as a discretionary factor in her favour.

6. In the hearing, the applicant indicated that when she completed her Bachelor of Professional Accounting in July 2016, she subsequently gained her professional qualifications and then worked as an accountant on a working visa. The applicant then decided in late 2020 that she needed further qualifications, causing her in January 2021 to enrol in the MBA.

7. In the hearing, the applicant indicated that she has since the middle of 2023 been enrolled in a Graduate Diploma of Management (Learning). The applicant then indicated that she started studying this course in October 2023 and has been studying only one unit. The applicant indicates that this unit will be completed later in December 2023.

8. The applicant indicates that the course runs for one year and she expects to complete it in the middle of 2024. The Tribunal asked the applicant how many units she needs to pass to complete the course. The applicant was not entirely clear before suggesting the need to pass eight units.

9. The Tribunal put to the applicant that she then needed in the first half of 2024 to complete seven units in the course and wondered about the logistics of this. The applicant was not clear as to what exactly was required.

10. The Tribunal asked the applicant to provide following the hearing a transcript from the education provider indicating her completion of the one unit studied in 2023. The applicant should also in response set out exactly what is required in terms of the remaining units needed to complete the course and to indicate when the applicant intended to have completed those units by.

11. In response the applicant provided a letter from the education provider confirming the applicant’s enrolment in the Graduate Diploma of Management (Learning). The study period is indicated to be from 8 October 2023 until 5 January 2025. The applicant did not provide as requested a transcript indicating the passing of one unit in the second half of 2023. Neither did the applicant provide details as requested in the hearing as to the number of remaining units that needed to be completed for the course.

12. In the hearing the applicant indicated that it is the intention of her and her husband and child to return to India after completing the Graduate Diploma of Management (Learning).

13. The Tribunal asked the applicant what hardship would be faced if the visa remained cancelled. In response, the applicant indicated that there would not be access to the same study opportunities India. The Tribunal put to the applicant that surely in India there would be study opportunities in accounting. The applicant then indicated that these are not located in proximity to where she lives. The Tribunal noted to the applicant that she and her family had relocated to Australia to study and questioned why relocation would not be possible in India. The applicant maintained there were hurdles due to study opportunities not being located in her home area.

14. The applicant also indicated that there would be hardship for her son in returning to India in terms of better school opportunities in Australia. The Tribunal noted that on the intention of the family to return to India in mid-2024, her son at that point would be educated in India. In response, it was indicated that at that point he will be in high school and the hardship will be less to him.

15. The key hardship claimed to be faced by the applicant if the visa remains cancelled is her inability to complete the Graduate Diploma of Management (Learning) and inferior study opportunities in India. The Tribunal has some concerns as to the applicant’s progress and focus on this course. This is due to her failure to provide evidence that she indicated in the hearing that she would provide of the passing of one unit in the course in the later part of 2023. Neither did the applicant provide details as requested as to the details and number of remaining units to be undertaken to complete the course. The Tribunal also has concerns due to the fact that the applicant at the hearing indicated that the course was due to be completed in the middle of 2024 when in fact it finishes according to the education provider in January 2025.

16. Having made those comments, the Tribunal is willing to accept for the purpose of this decision only that the applicant is genuinely studying and has the capacity to complete her current course. In making this determination the Tribunal takes in the applicant’s favour her prior successful studies in Australia.

17. The Tribunal accepts some hardship to the applicant if she is unable to complete as desired her current studies before returning to India.

18. The Tribunal does not consider an overly relevant factor the hardship to the applicant son as a result of having his studies in Australia cut short. The Tribunal considers that the applicant son would have access to suitable education in India. There is no evidence that the interests of any other children in Australia are impacted by a cancellation decision.

19. The applicant in the hearing indicated that she does not fear persecution or significant harm on return to India. This therefore is not a discretionary factor considered in favour of not exercising the discretion to cancel the visa.

20. The Tribunal weighs competing discretionary factors. Significantly adverse to the applicant is the fact that the Tribunal, for the reasons outlined, does not accept that the various explanatory factors claimed reasonably justify the applicant not being enrolled in a registered course for the lengthy period of approximately 16 months. The factors claimed might justify non-enrolment for a shorter period but not for as long as the actual period of non-enrolment.

21. The Tribunal accepts some hardship to the applicant and the family as a result of having their stay in Australia shortened beyond the desire for the applicant to finish her current course. The Tribunal accepts some hardship to the applicant in not being able to complete this course. The Tribunal accepts hardship to the applicants in terms of not being eligible to apply for other onshore visas as a result of the cancellation of the current visa.

22. As indicated, the Tribunal does not consider there is significant hardship that would be suffered by the applicant son as a result of having to return to schooling in India.

23. Balancing factors, the Tribunal is not persuaded that the Tribunal’s accepted hardships to the applicants as a result of cancellation, including the applicant’s study history in Australia or any other discretionary factors in the applicant’s favour, outweigh the Tribunal not being satisfied that there are explanatory factors that justify and explain the applicant not being enrolled in a registered course for approximately 16 months.

24. Consequently, the Tribunal determines to exercise its discretion to cancel the visa.

25. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

26. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.

    David McCulloch
    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.