Mann (Migration)

[2020] AATA 2858

Mann (Migration) [2020] AATA 2858 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kuldeep Singh Mann

CASE NUMBER:  1926798

DIBP REFERENCE(S):  BCC2019/2805364

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         19 June 2020 at 10:33 am (VIC time)

DATE OF WRITTEN RECORD:                5 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Student (Temporary) (Class TU) visa.

Statement made on 05 July 2020 at 2:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 574 (Postgraduate Research Sector) – not enrolled in registered course – dispute with university over supervision of study – university’s dispute resolution mechanisms and civil litigation settled in applicant’s favour – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 September 2019 to cancel the applicant’s Subclass 574 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 19 June 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 1926798.  The applicant’s name is Mr Mann.  This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s student visa by way of a decision dated 20 September 2019.

4. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study.  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. The applicant appeared before the Tribunal on 19 June 2020 to give evidence and present arguments. 

6. For the following reasons the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

7. 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. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled. Condition 8202, as it applies in this case, requires the applicant to be enrolled in a registered course of study or training.

8. In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course since 2 April 2019 and has therefore not complied with the requirements of part (2)(a) of condition 8202. 

9. An examination of the delegate’s decision record notes that information before the Department indicated the applicant did not maintain enrolment in a registered course of study at James Cook University  from 2 April 2019 onwards.

10. A notice of intention to consider cancellation was sent to the applicant on 12 August 2019. 

11. The applicant responded to the notice of intention to consider cancellation in some detail by way of written response dated 15 August 2019.  In the response the applicant agreed that there were grounds for cancellation but he set out extensively the circumstances that led to the cancellation of his enrolment at James Cook University  where he was studying a Doctor of Philosophy.

12. In the applicant’s oral evidence at hearing, the applicant confirmed that he was aware that his enrolment at the James Cook University  was cancelled on 2 April 2019 and he confirmed he had not been enrolled since that time.

13. On the basis of the applicant’s oral evidence, the Tribunal is satisfied that the applicant was not enrolled in a registered course from 2 April 2019 onwards.  Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2)(a). 

14. Having found that the applicant has not complied with a condition of a visa the Tribunal must now 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.

15. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and matters in the Department’s Procedure Advice Manual PAM3 general visa cancellation powers.

16. The applicant was granted a Post Graduate Research Sector subclass 574 visa on 25 March 2015 for the purpose of undertaking a Doctorate degree at the James Cook University .  The applicant’s focus in this degree was on Indian ethnic media in Australia and its role in assimilating the Indian diaspora in the Australian mainstream media.

17. The applicant gave detailed evidence of a dispute that arose at the University  as a result of a failure on the part of the applicant’s supervisor to properly supervise his DHC which resulted in various dispute resolution mechanisms being utilised by the applicant in an attempt to resolve his dispute with the University . 

18. The applicant stated that he submitted material throughout the course of his degree and initially, various components of his study were failed by his PhD supervisor, which he appealed on the basis that he was of the view that the supervisor was not qualified to supervise his particular course of study, among other reasons.

19. It is clear that the applicant arrived in Australia for the purpose of study and the Tribunal is satisfied on the basis of the applicant’s evidence that he has demonstrated that his primary purpose for being in Australia was for the purpose of study. 

20. After the applicant’s enrolment was cancelled in April 2019, he was embroiled, at that stage, in civil litigation in the Supreme Court of Queensland in relation to his PhD studies.  The applicant issued proceedings against the University  in April 2018, claiming, among other reasons, that the University  had not afforded him procedural fairness and had inappropriately failed him in his subjects in his degree, among other claims.  The applicant claimed compensation and damages against the University .

21. Taking these matters into consideration the Tribunal is satisfied that the applicant’s purpose of stay in Australia initially was for the purpose of study and notwithstanding that that purposed ended on 2 April 2019, the Tribunal is satisfied that the applicant’s enrolment was cancelled due to matters beyond his control, which I will set out below. 

22. Accordingly, the Tribunal gives this factor some minor weight in favour of not cancelling the visa.

23. As to the circumstances in which the ground for cancellation arose, the grounds arose due to non compliance with condition 8202(2)(a).

24. The applicant gave detailed evidence at hearing as to his dispute with James Cook University  that led to the cancellation of his PhD studies.  He said that he commenced his studies in April 2015 and approximately one year after his studies he encountered serious issues with his supervisor.  He made claims that the supervisor commenced harassing him in his studies and failed him in two of his subjects.

25. The applicant stated that his supervisor would not let him progress in his studies and he took steps internally at the University  to challenge his supervisor’s failure of the subjects in the applicant’s PhD.  He applied for a merits review at the University which was ultimately unsuccessful.

26. The applicant stated that he then again took steps to appeal the matter and took the matter to the highest available panel at the University, where he lodged an appeal.  The applicant stated that the appeal panel found in his favour.  The applicant contended that he had been deprived of natural justice in those circumstances.  The applicant stated that the appeal panel directed the University  to review his complaint originally and after that determination had been made the applicant stated that the Vice Chancellor of James Cook University  reviewed his case and made an offer to him of a monetary sum to settle the dispute between the University and the applicant.

27. The applicant declined the offer of settlement.  The applicant said that his whole career had been ruined as a result of the conduct of the University.  He said at that stage he referred the matter to the Queensland Ombudsman and that after six months a representative from the ombudsman’s office informed the applicant that that particular department did not have the mechanism available to assess his particular case.  That is to say, to assess the academic issues associated with his case.

28. In December 2018 the applicant issued proceedings in the Supreme Court of Queensland against James Cook University .  The applicant contended that he made various allegations in the statement of claim filed in that Court.  The applicant informed the Tribunal that he alleged among others that his particular supervisor at the University was not qualified to assess his PhD studies, that the supervisor gave confusing guidance and was not available for meetings upon request.  The applicant further stated that after submitting assignments to his supervisor that his assignment titles were altered, which resulted, in part, in a failure of his subjects because the substance of his work was not relevant to the title of the material.

29. The applicant informed the Tribunal that he made various other allegations in the statement of claim and that he sought damages and compensation from the University as a result of the matters contended in the statement of claim. 

30. The Tribunal was not provided with a copy of the statement of claim for the purposes of this hearing, however, the Tribunal has had regard to a deed of settlement and release dated April 2020 between the applicant and James Cook University.

31. The Tribunal has also had regard to a signed minute of consent between the applicant and James Cook University in the Supreme Court of Queensland proceeding number 14207 of 2018.  That document is dated 28 April 2020 and bears the seal of the Supreme Court of Queensland.

32. As a result of the matters described in the deed of settlement, the applicant and James Cook University have resolved the dispute between them on terms that are described in that document.  The document is described as confidential.

33. The applicant further informed the Tribunal that he was aware that his enrolment was cancelled on 2 April 2019 as he received an email from the University.  He was of the view in those circumstances that the University’s cancellation of his enrolment at that time when he had quite plainly issued legal proceedings against the University the year prior, was affected for the purpose of attempting to dissuade him from pursuing the litigation in the Supreme Court against the University.  He was of the view the cancellation was calculated by the University to make his life more difficult in pursuing his claim against the University.

34. The Tribunal accepts the applicant’s evidence and is persuaded as to the credibility of the applicant, in view of the contents of the confidential deed of settlement.

35. Mr Mann has also submitted a detailed statement addressed to the Tribunal outlining these matters.  This statement was dated 9 June 2020.  He has also submitted a written statement to the Tribunal dated 16 June 2020 in which he details his concern for travelling back to India in circumstances where the Coronavirus is a live issue.

36. Taking into account all the evidence that I have set out above the Tribunal is of the view that the reasons for the cancellation of the applicant’s enrolment were due to matters entirely outside of the control of the applicant and on that basis the Tribunal affords this factor significant weight against the cancellation of the applicant’s visa in the circumstances.

37. As to extent of compliance with other visa conditions, it is plain that the applicant has not maintained compliance with condition 8202(2)(a).  However, in view of the evidence I have just set out above and in view of the contents of the deed of settlement entered into between the applicant and the University, which the Tribunal places significant weight upon, the Tribunal is satisfied that the reason for the breach of the visa condition in this particular case is due to matters beyond the control of the applicant and on that basis the Tribunal affords this factor some weight against cancelling the visa.

38. The Tribunal makes the further observation that there are no other allegations nor is there any other evidence of any breaches of any other visa conditions in this case.

39. As to the degree of hardship that may be caused to the applicant if his visa is to be cancelled, the applicant gave detailed evidence to the Tribunal that he was a decorated journalist in his home country before coming to Australia for the purpose of studying his PhD.  He was a principal correspondent with the number 1 English daily newspaper in India.  He came to Australia for the purpose of seeking to undertake and complete his PhD studies for the purpose of furthering his career.  That endeavour has ended unsuccessfully, which has caused the applicant tremendous distress and hardship.

40. In view of the serious nature of the dispute the applicant was embroiled in with the University, which ultimately concluded in the applicant’s favour, the Tribunal is of the view that the applicant’s hardship in this case, being emotional and psychological hardship, would be compounded by the continued cancellation of the applicant’s visa.  And in the circumstances of this particular case, the Tribunal finds that hardship to be manifestly unfair and the Tribunal affords this factor some weigh in favour of not cancelling the visa.

41. As to the applicant’s past and present behaviour towards the Department, the Tribunal notes that the applicant has been cooperative with the Department and has provided extensive information by way of his written response to the notice of intention to consider cancellation.  There is no other information before the Tribunal to suggest that the applicant has been uncooperative with the Department or Departmental staff and the Tribunal affords this consideration some minor weight against cancelling the visa.

42. The circumstances of this case are not such that any person’s visa would be consequently cancelled under section 140 of the Act.  The Tribunal therefore does not give this any weight or against a decision to cancel the visa for this consideration.

43. If the applicant’s visa is cancelled and he does not resolve his visa status and voluntarily depart Australia he will become an unlawful citizen and maybe liable for detention under section 189 and removal under 198 of the Act.  The applicant would be affected by section 48 of the Act which would cause him to have limited options applying for further visas in Australia in the future and he would be affected by Public Interest Criteria 4013, which would prevent him or may prevent him from being granted further temporary visas for specific periods in the future.

44. On account of the matters I have set out above, the Tribunal finds that these consequences would be manifestly unfair in the circumstances of this case and the Tribunal affords this consideration weight against cancelling the visa.

45. There is no information before me to indicate that the circumstances of this case would engage Australia’s international obligations.  The Tribunal therefore does not give this any weight for or against the decision to cancel this visa.

46. As to whether there are any other relevant matters the Tribunal notes the written statement of the applicant dated 16 June 2020 in which he expresses concern to travel back to his home country in circumstances where COVID-19 is a live issue.  The Tribunal takes that concern into account, however, notes that it is incumbent upon the applicant to seek advice as to what visa options are available to him from the Department of Home Affairs directly and it is not a factor which affects the findings the Tribunal has otherwise made in this decision as set out above.

47. It is clear that the breach of the visa condition in this particular case does not reveal any bad faith at all on the part of the applicant.  It is clear to the Tribunal that the breach of the visa condition in this case is due to a matter not reasonably within the control of the applicant and occurred in circumstances where he was embroiled in serious litigation in the Supreme Court of Queensland with the very entity who had the power to cancel his enrolment and thereby cause him to be in breach of his visa in these circumstances.  That litigation has ended favourably for, and to the applicant’s satisfaction.

48. It is therefore clear that the considerations that arise after examining all the evidence before me lean towards the visa not being cancelled and I so find. 

49. Given the circumstances as a whole the Tribunal concludes that the visa should not be cancelled.

50. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Post Graduate Research Sector QU574 visa. 

    DECISION

51. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Student (Temporary) (Class TU) visa.

    Vanessa Plain
    Member