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

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).
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaur (Migration)

Details

AGLC: Kaur (Migration) [2024] AATA 510
Case: [2024] AATA 510
Decision Date: 22 January 2024

CaseChat Overview and Summary

The applicant, Manbir Kaur, an Indian citizen, sought to have the cancellation of her Subclass 500 student visa reviewed by the Tribunal. The visa was cancelled on the grounds that she had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a full-time registered course. The applicant contended that various circumstances, including her father-in-law's ill health, issues with her education provider's online enrolment portal, and her own subsequent illness, prevented her from maintaining her enrolment.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of her student visa. This condition requires the holder to be enrolled in a full-time registered course and to maintain that enrolment. The Tribunal was also required to consider whether, even if a breach had occurred, it should exercise its discretion to cancel the visa, taking into account the applicant's explanations and relevant government policy.

The Tribunal found that the applicant had not been enrolled in a registered course since 19 April 2021, thus failing to comply with condition 8202(2)(a). While acknowledging the applicant's stated reasons, including her father-in-law's health issues and her own plantar fasciitis, the Tribunal noted that the medical evidence for the father-in-law's condition was dated significantly later than the period of non-enrolment. The Tribunal also observed that the applicant's husband continued to work during the relevant period. After considering the applicant's explanations and the relevant policy guidelines for exercising discretion, the Tribunal concluded that the visa cancellation should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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.Background1.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.Circumstances4.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 asideConclusionI 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.

Evidence

Evidence Before The Court

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 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? 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). 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. 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. 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. 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.Background1.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.Circumstances4.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 asideConclusionI 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.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.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.David McCullochMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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. 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.