Kumar (Migration)

[2018] AATA 5196

Kumar (Migration) [2018] AATA 5196 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Kumar

CASE NUMBER:  1719942

HOME AFFAIRS REFERENCE(S):           BCC2016/1240515

MEMBER:David McCulloch

DATE:15 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 October 2018 at 3:02pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa  – Federal Circuit Court remittal – not enrolled in a registered course of study – breach of condition 8202– cancelled enrolment due to non-payment of fees – exceptional circumstances existed relating to his grandmother’s death – applicant has a genuine intention to continue with studies–  satisfactory education history – health issues– Decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 June 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan born on 27 December 1993. The visa that has been cancelled was granted on 29 June 2016 for a stay period until 11 January 2017. That visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations).

3. On 7 June 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course since 9 November 2015. The applicant provided a written response to the NOICC.  On 29 June 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his 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 the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. This is a matter that has previously been considered by the Tribunal.  On 12 May 2017 the Tribunal affirmed the decision to cancel the visa. Judicial review was sought of that decision by the applicant.

6. On 28 August 2017 the Federal Circuit Court ordered that the matter be reconsidered. This was on the basis that the Tribunal had failed to consider the applicant’s claim that he had received a conditional readmission letter from Deakin University, had paid his tuition fees, and would have paid the remainder had the Department not cancelled his visa. The applicant had provided a copy of the conditional readmission letter and a copy of the confirmation of payment of tuition fees. The Tribunal failed to make any finding as to whether Deakin University did make the applicant such an offer or give any consideration to the fact that the applicant had received conditional readmission at Deakin University. This involved a failure by the Tribunal to actively engage with the applicant’s claim.

7. The applicant appeared by video link from Townsville before the Tribunal on the remitted application on 10 October 2018 to give evidence and present arguments. The applicant was represented by his registered migration agent, who 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 set aside and a decision should be made not to cancel the visa.

   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. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)
    • has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
    • has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

12. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 9 November 2015.

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 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

15. 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.

16. 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 s.140 (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.

17. The applicant provided the following statement to the Tribunal in relation to the initial review, which provided as follows (not corrected for spelling or grammar):

    I am the review applicant in this matter.

    I am 23 years of age being born on 27 December 1993.

    I came to Australia in 19 February 2013 as hold of subclass 573 student visa to study Diploma in Commerce followed by a Bachelor of Law in Deakin University Melbourne.

    I have complete Diploma in Commerce in February 2014 from MIST now known as Deakin College, copy of this Diploma and transcript attached.

    I then commenced my Law Degree study in DEAKIN University.

    I have completed 3 semesters and passed 6 subjects in July 2015. I then started 4th semester and studied till October 2015.

    During this period, I was diagnosed with stone in my kidney. I was booked for surgery but stone was taken out through other process. On 20 August 2015, I was hospitalized for 2 days in Emergency, copy of my hospital notes enclosed.

    After this process, I was advised to take rest and take penalty of water because residual of the stone was still in.

    Over the next few months I was disturbed due to the residual of the stone, suffered pain and unable to continue my study.

    I had a plan to attend Summer Semester to catch up with my study but due to continue pain I could not attended my plan.

    On 2 January 2016, my grandmother passed away in Pakistan. I travelled to Pakistan on 3rd of January 2016 and stayed there on 5 March 2016 after completing her rituals.

    I could not communicate with my University because I was in a remote village in Pakistan during my stay in Pakistan. My university cancelled my COE.

    On or about 20 February 2016, I manage to chat with my university and informed them about my situation when I visited Karachi from my village. I also informed my university that I will return on 5 March 2016.

    On 6 March 2016, I attended my University international student office and secured a conditional offer letter, copy of which attached. My course was due to start on 11 July 2016 .

    I paid half of the fee to my university, copy of receipt enclosed.

    0n 29 June 2016, I received a letter from the DIBP advising that my student visa cancelled.

    I lodged Review application in the MRT in Brisbane. I was granted Bridging Visa "E". During the interview for BE, Immigration officer advised me that I am not allowed to study.

    I state that I am a genuine student wishes to complete my study because this study is very important to my whole family in Pakistan.

    My degree will secure me a reasonable job and social recognition in the family and society in Pakistan.

    My parents have supported me to pay my fee and associated expenses over the period of study in Australia and it will be embarrassing for them to know and declare in the relatives that I could not completed my studies in Australia.

    On the basis, I request the Respected Member to allow me an opportunity to complete my study. I have complete my diploma and have sources to fund my Degree.

18. The applicant’s representative provided the following submissions to the Tribunal in relation to the initial review as follows:

    We are instructed by the applicant that he arrived in Australia on a student visa to study Bachelor of Laws from Deakin University. The applicant completed a Diploma in Commerce as a pre-requisite to his enrolment in the university. Enclosed herewith and marked "A" are the applicant's transcripts for his diploma.

    After completing the diploma course, the applicant got enrolled in the university. He completed 3 semesters passing 6 subjects in total, the applicant has told us that he requested the university to send him his transcript for the duration of course and will receive the same in due course. We will forward the same onto the Tribunal upon receipt.

    On or about 13 July 2015, the applicant's enrolment to the university was cancelled due to non-payment of fees. The applicant was late in the payment of his fees as there were floods in Pakistan and the applicant's father was unable to send the money for the fees on time. The applicant paid the overdue fees on 14 July 2015 and had his CoE reinstated. Annexed hereto and marked "B'' is the copy of the email advising the applicant about the cancellation of his enrolment.

    The applicant's health started declining from August 2015. On 20 August 2015, the applicant was admitted in the hospital. The applicant stayed in the hospital for two days and received treatment for Kidney Stones. Enclosed herewith and marked "C" are the applicant’s medical records.

    The applicant's treating doctors suggested a non-surgical treatment which the applicant followed till October 2015. The lengthy treatment put the applicant through pain and discomfort which effected his studies. The applicant recovered from his ailments in October 2015. He has advised us that he sought help from the university as he had missed substantial amount of classes and deadlines for submitting assignments which account for 40% of the total marks.

    The applicant was advised by the university that the census date to defer the subjects has not passed. He was told that he can only defer the final exams, but cannot be given extensions to submit his assignments. The applicant has told us that it was not possible for him to score an overall mark of 50 out of a 60 mark exam to pass the unit. Therefore, the applicant asked the university to waive off his tuition fees on medical grounds.

    However, the university cancelled his enrolment again on 9 November 2015 for non-payment of fees.  The applicant immediately took steps to rectify the situation. He contacted the university to seek re-admission in his course. He was advised by university via email on 9 December 2015 that the deadline for students in Australia to apply for the first semester of 2016 was 15 February 2016. Annexed hereto and marked "D" is the email he received from university.

    The applicant has instructed us that he started preparing his application and relevant supporting documents in December 2015. However, due to Christmas holidays, the applicant was not able to lodge his application with the university. The applicant's grandmother passed away in Pakistan on 2 January 2016. Annexed hereto and marked  "E" is the  applicant's  grandmother's death certificate.

    The applicant left Australia for Pakistan immediately after the death of his grandmother. Annexed hereto and marked "F" is the applicant's air tickets to Pakistan. He has told us that as part of the rituals, the applicant and his family had to stay in a village in Pakistan and did not have access to internet. This restricted the applicant's ability to complete his enrolment process.

    The applicant completed his enrolment application and lodged with the university on 16 February 2016. Annexed hereto and marked "G" is the copy of the applicant's email to the university enclosing his admission application. Upon arrival in Australia, the applicant received his Enrolment letter on 14 March 2016. The applicant was further advised by the university that he will be enrolled during his orientation ceremony to be held on 4 July 2016. Annexed hereto and marked "H" is a copy of the university's Enrolment letter.

    The applicant was told that he need to pay his fees prior to his orientation. The applicant paid $7,500 towards his fees on 22 June 2016. He has told us that he would have paid the remainder of his fees prior to 1 July 2016. However, the applicant's student visa was cancelled and he could not complete his enrolment process.

    On the basis of the above, we submit that the applicant complied with his visa and enrolment conditions. We ask the tribunal to reconsider the decision of the delegate and have the applicant's visa reinstated.

19. The Tribunal made enquiries of the applicant’s education provider, Deakin University, to obtain transcripts and details of course progress in relation to the applicant. Transcripts were provided which showed the applicant passing three units in the two semesters of 2014 and two units in the first semester of 2015 with two points of credit. The University provided the following additional information in relation to the applicant:

    ·     Student accepted a packaged offer for Diploma of Commerce (04/03/2013 to 07/02/2014) at Deakin College formerly known as MIBT and Bachelor of Laws (24/02/2014 to 11/11/2016) at Deakin University.

    ·     Student did not receive any intervention correspondence from the Academic Progress Committee during his enrolment in Bachelor of Laws as was progressing within University process. Please refer to the attached transcript for Bachelor of Laws .

    ·     Student has already completed 13 units out of required 32 credit points required to complete this course.

    ·     Student's enrolment was terminated in T2 2015 on 09/11/2015 due to Non-payment of fee.

    ·     Student applied for Re-admission in Tl 2016 and was requested to provide an evidence of departure to his home country and re-arrival in Australia. Student's readmission was refused for Tl 2016 as could not provide requested documents before commencement of Tl 2016.

    ·     Later on student provided an air ticket that he went to Pakistan on 04/01/2016 as his grandmother passed away and returned to Australia on 04/03/2016. Student's Re-admission for Trimester 2 2016 was approved.

20. The applicant’s evidence, as confirmed by documentary evidence, is that he made immediate enquiries of Deakin University seeking to reinstate his enrolment in the Bachelor of Laws which was cancelled on 9 November 2015 due to non-payment of fees. This was delayed due to the death of his grandmother and him travelling to attend her funeral. The applicant eventually received a conditional offer on 14 March 2016 and paid the first tranche of fees on 22 June 2016. The applicant has provided supporting evidence of his grandmother passing away in January 2016 and the applicant having to travel to Pakistan for her funeral and associated rites. 

21. The applicant was convincing in the hearing regarding the remitted application of needing to attend the funeral and participating in rites in a remote location in Pakistan away from Internet access, and being unable to communicate with Deakin University. The applicant re-established communication with Deakin University from Pakistan in February 2016 and applied for readmission.

22. The Tribunal is satisfied that there were exceptional circumstances relating to his grandmother’s death requiring him to travel to Pakistan that prevented him from continuing the process of reapplying to Deakin University in time for him to re-enrol in the first semester of 2016. The Tribunal considers that without his grandmother’s death the applicant would have re-enrolled in time to commence first semester of 2016. If the applicant had re-enrolled within this short period, the Tribunal would certainly not exercise its discretion to cancel the visa given the short duration of non-enrolment in the context of the applicant’s past study history.

23. The evidence discloses in the Tribunal’s view that at the earliest reasonable opportunity, in the context of the death of his grandmother, he obtained conditional enrolment, albeit for the second semester of 2016.

24. The Tribunal is satisfied on the evidence that the applicant has a genuine intention to continue with his law studies at the earliest opportunity. The applicant indicated to the Tribunal in the hearing that he has made enquiries of James Cook University in Townsville to continue his studies in law and provided documentary evidence prior to the hearing in support of this. Following the hearing, the applicant provided evidence of having applied for admission in this course.

25. The Tribunal noted to the applicant that there is no condition on his current bridging visa, granted in June 2017 preventing him from studying. The applicant indicated in the hearing that when he was originally granted the bridging visa he was told by an immigration official that he could not study. The Tribunal accepts that the applicant believed, whether or not it was the case, that he was not entitled to study on his bridging visa. The applicant was convincing in the hearing that he has had a significant desire and goal to continue his legal studies from the time that he returned to Australia from Pakistan in March 2016.

26. The Tribunal asked the applicant that if his medical condition in 2015 was so severe, causing him not to be able to complete exams and assignments and other commitments in the second half of 2015, why he did not seek a deferral on medical grounds. The applicant indicated that he did speak to a student advisor about his difficulties. He said that he did not want to defer as this would require him to pay additional tuition fees.

27. Whilst the Tribunal has some doubts about the severity of the applicant’s claimed illness in the second half of 2015, the cancellation of the applicant’s visa has not occurred for reason of this illness or his lack of performance in his studies in the second half of 2015. The reason for the cancellation is the applicant failing to pay fees in November 2015.

1. What the Tribunal is confident of is that the applicant took almost immediate steps after the cancellation of his visa to seek to re-enrol at Deakin University, even though this process was delayed due to the death of the applicant’s grandmother requiring his return to Pakistan. The Tribunal considers that the applicant took what steps he could, as soon as he could, to progress his re-enrolment, albeit resulting in him missing enrolment in the first semester of 2016. The Tribunal accepts that the applicant will continue with his legal studies in Australia, almost half of which he has already completed.

2. If the applicant’s grandmother had not died, the Tribunal considers that the applicant would have reasonably quickly have obtained re-admission in the Bachelor of Laws and continued in the first semester of 2016. The exceptional circumstances caused by the death of the applicant’s grandmother, and the fact that the applicant took reasonable steps to reinstate his enrolment, cause the Tribunal to not exercise its discretion to cancel the visa.

3. Considering all of the circumstances, the Tribunal considers that it should not exercise its discretion to cancel the visa. Discretionary matters favourable to the applicant weigh strongly against matters adverse to the applicant.

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

   DECISION

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

   David McCulloch
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)A holder meets the requirements of this subclause if:

   (a)the holder is enrolled in a registered course; or

   (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

   (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.