Kumar (Migration)

[2019] AATA 2728

Kumar (Migration) [2019] AATA 2728 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ram Kumar

CASE NUMBER:  1715380

HOME AFFAIRS REFERENCE(S):           BCC2017/1856216

MEMBER:Helen Kroger

DATE:2 April 2019

PLACE OF DECISION:  Melbourne

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 02 April 2019 at 5:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – financial constraints due to family member’s health issues – unable to afford fees – enrolled in another course – moved house without notifying the department – Notice of Intention To Consider Cancellation sent to old address – genuine intention to study – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling 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. The applicant appeared before the Tribunal on 2 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. The applicant provided the Tribunal with a copy of the delegate’s decision record for the purpose of its consideration.

5. 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

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the Notice of Intention To Consider Cancellation (NOICC) on 2 June 2017 and the delegate did not receive a response giving reasons why the visa should not be cancelled. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant with particular regard to the alleged breach of non enrolment of three months and that his last time of study was in October 2016.

9. The applicant did not dispute the above claims as set out in the delegate’s decision, at hearing.  On the evidence before it, namely the applicant’s admission during the hearing, the Tribunal finds that 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

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

11. The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

12. The applicant, Mr Kumar, is an Indian national who is a 44 years of age, travelled to Australia in 2015 for the purpose of undertaking a Masters of Business Administration, to further his employment prospects in India.  He is married with five and thirteen year old children, and has the full support of his wife to pursue post graduate studies, with the aim of improving career advancement. He enrolled in an MBA with Asia Pacific International College (APIC), an education provider, commencing a pre requisite English course, and completed the first 12 weeks of this course. He was required to complete a further 12 weeks before proceeding to undertake his MBA. He explained to the Tribunal that he held a Bachelor of Science, previously worked with a prudential life insurance company, ICICA, in India, but was not advancing sufficiently as he required a “professional qualification/degree”.  In order to avail himself of potential advancements and promotion, he sought to study a post graduate degree in Australia.

13. He commenced his MBA in July 2016 but due to unforeseen financial constraints, that necessitated him supporting medical treatment for his brother, who later died in October 2017, he was unable to afford the tuition fees to enrol in the second semester.  In an endeavour to comply with the conditions attached to his visa, he enrolled in a Diploma of Leadership and Management on 16 June 2017. During this time, the applicant moved residence and did not advise the Department immediately of this change of address. The NOICC was sent to the address that as on the Department’s files and was issued on the 2 June 2017. The applicant claimed that the letter was not forwarded to him till one month later, and accordingly did not respond.  The delegate issued his/her decision on the 27 June 2017.

14. The Tribunal has considered the explanation provided at hearing by the applicant, the sequence of events as described by him, and is satisfied that his intention and reason to study in Australia is genuine. Whilst it is a reasonable expectation for visa holders to update their personal contact details in a timely manner, the Tribunal has considered the mitigating circumstances that led him to move residence, his awareness and actions to comply with the conditions attached to his visa (the evidentiary basis for this being the audio recording of the hearing) and his genuine ambition to complete a post graduate degree to improve his employment prospects in India.

15. The Tribunal has carefully considered the applicant’s submission at hearing and found his testimony persuasive in demonstrating his commitment to successfully completing a post graduate degree and his endeavours to ensure he has the financial capacity to pay the associated tuition fees. The Tribunal gives significant weight to these factors in favour of the applicant compared to any weight given to cancelling his visa.

    The extent of compliance with visa conditions

16. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal has considered the breach of three months in terms of the extended study period of a course.  As such, the Tribunal gives some weight to the fact that there appears to be no additional breaches.

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

17. Mr Kumar explained at hearing that his primary and only reason for studying in Australia was to complete a “professional degree” in Australia, a qualification that would elevate the employment opportunities available to him in India.  He discussed his frustration with the appraisal process he undertook regularly with the life insurance company he worked with, and the promotion advantages available to employees with overseas qualifications. He indicated these were given priority to post graduate qualifications undertaken in India.   He indicated that he would be very disappointed should he be required to return home without fulfilling his ambition in Australia and that he would return to work and experience the same frustrations that lead him to come to Australia to study.

18. His wife is supportive of his endeavours, works and supports their two children whilst he is in Australia, and he submitted that whilst she would be disappointed for him, she supports him unconditionally.

19. The Tribunal has carefully considered the degree of hardship that Mr Kumar potentially faces should his visa remain cancelled. Whilst it acknowledges that it is not unreasonable for any applicant to be disappointed should their visa be cancelled, the Tribunal recognises the significant personal sacrifices that the applicant and his family are making for him to study in Australia and is satisfied that the continued cancellation of his visa will have a detrimental effect on him, directly impact future employment opportunities, and the opportunities that may present themselves should he be able to complete post graduate studies.

20. The Tribunal appreciates that a cancellation would cause significant hardship to the applicant in furthering his career and providing for his family should his visa be cancelled, and the impact this would potentially have in exercising his capacity to access all employment opportunities in India. Accordingly the Tribunal gives more weight to the significance of the hardship he would experience on her return to India than the significance of the period of time of the breach.

    Circumstances in which ground of cancellation arose

21. As outlined above, Mr Kumar commenced an MBA after completing the pre requisite English course, but was unable to enrol in the second semester as he couldn’t pay the tuition fees. He had an ill brother who he was financially assisting so that he could receive medical treatment for his pancreas, and sadly later died.  He indicated that he was working in casual positions, within the conditions of his visa, to earn money to assist with expenses and to save for tuition fees.  Consequently the applicant stopped studying in late 2016 with his enrolment cancelled in March 2017. He later enrolled in a Leadership and Management Diploma, and was honest in his submission to the hearing that he was concerned about complying with his visa. He indicated that following this enrolment, the NOICC was passed on to him from the tenants of his former residence, one month later, which was too late to respond, and that his visa was cancelled.  In his testimony, the applicant was candid and genuine in his responses to questions, notwithstanding some confusion with language interpretation.

22. The Tribunal has considered the circumstances around the time of the cancellation, the applicant’s attempts to assist his extended family financially, notwithstanding its detrimental impact on his own studies, his demonstrated maturity in personally dealing with the circumstances before him, and his honest and candid approach in responding to the Tribunal’s questions. The Tribunal has also considered the cultural influences that will have contributed to the decisions made by Mr Kumar.

23. Given these circumstances as outlined above, the Tribunal gives significant weight to the reasons why the applicant was not enrolled in a registered course of study and accords significant weight in favour of the applicant compared to any weight given in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

24. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in her dealings.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

26. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

27. The Tribunal is satisfied there are no relevant matters for further consideration.

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

    DECISION

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

    Helen Kroger
    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.