Manpreet Singh (Migration)

[2019] AATA 6617

Manpreet Singh (Migration) [2019] AATA 6617 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Manpreet Singh

CASE NUMBER:  1928898

HOME AFFAIRS REFERENCE(S):          BCC2019/3163709

MEMBER:Vanessa Plain

DATE OF ORAL DECISION:  9 December 2019

DATE OF WRITTEN STATEMENT:         11 December 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 500 (Student) visa.

Statement made on 11 December 2019 at 5:42pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – diligent attitude to studies – serious car accident – contemporaneous medical records – beyond applicant’s control – took all reasonable steps to seek a deferral – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 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.

3. The Tribunal gave its decision on the review at the conclusion of the hearing held on 9 December 2019. The following are the reasons for that decision.

4. The applicant appeared before the Tribunal on 9 December 2019 to give evidence and present arguments.

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, 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.

9. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 500) visa on 22 November 2017 for the purpose of undertaking an approved Higher Education level course of study, including:

   ·English for Academic Purposes

   ·A Master of Business Administration

10. The applicant gave evidence that he successfully completed his English course.   

11. The applicant’s enrolment in the Masters of Business Administration was cancelled on 27 July 2018 and a Notice of Intention to Consider Cancellation (NOICC) of the visa was sent to the applicant on or around 16 August 2018.

12. At the hearing, the applicant candidly admitted that he was not enrolled in a registered course since 27 July 2018.  He acknowledged having received the NOICC and he responded to the NOICC in writing on 13 September 2019 and 17 September 2019 respectively.   

13. The applicant gave detailed reasons, both orally and in writing, as the circumstances that led to the cessation of his studies, which are set out in detail below.    

14. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course as at 27 July 2018.  Accordingly, the Tribunal finds that 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 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.

16. 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’

    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 

17. The applicant has demonstrated a diligent attitude to studies abroad and in Australia. 

18. He was granted a visa on 22 November 2017 and arrived in Australia on 1 December 2018.  On 27 February 2018 he was involved in a serious car accident which resulted in a fractured shoulder, numerous hospital and doctor visits and the continual consumption of various pain medications to assist his recovery from serious injury. 

19. In support of the above mentioned injury, the applicant has produced a copious amount of contemporaneous medical documents highlighting hospital visits, doctor visits and various prescriptions for pain medication. 

20. It is this injury that the applicant contends led to his failure to maintain his enrolment, shortly after the injury.

21. The applicant corresponded at length with his university to try and defer his course, prior to it cancelling his enrolment, but a deferral was not obtained.

22. The medical evidence and the communications with the university were provided to the Department in the applicant’s NOICC response.  It is disappointing that these documents were not given greater weight by the Department.   

23. On the basis of the above, I therefore find that there is no evidence before the Tribunal to suggest that the applicant’s primary purpose for being in Australia is for a reason other than study.  I give this some weight towards the visa not being cancelled.     

    The extent of compliance with visa conditions

24. The applicant has not complied with condition 8202(2).  However, as I’ve previously set out above, I find that the applicant had a compelling reason for the breach, namely, that the circumstances that led to the breach were not reasonably within his control.  Those circumstances were that he was in a serious accident that led to a serious injury the couple of months prior to the university cancelling his enrolment.  He has produced contemporaneous medical evidence of his injury.  I am persuaded by the sheer extent to the contemporaneous medical documents produced, that the circumstances that led to the applicant’s breach were beyond his control. 

25. Therefore, whilst I find that the applicant did breach the condition, given the circumstances of the breach, I give this no weight towards the visa being cancelled. 

26. Further, there is no evidence of any breach of other visa conditions.

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

27. The applicant gave evidence of emotional and psychological hardship that he would endure if he had to return home in circumstances where he couldn’t complete his studies.    

28. The Tribunal accepts that the cancellation has led to some personal detriment for the applicant.  The Tribunal further accepts that the detriment would be compounded by the continuation of the cancellation and the Tribunal therefore gives this some weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

29. The circumstances that led to the cancellation of the applicant’s visa are set out above.     

30. The Tribunal has had regard to each and every contemporaneous medical document produced by the applicant in support of his contention that the serious injury he suffered a couple of months before his enrolment was cancelled is the reason he breached his visa. 

31. The Tribunal is satisfied that the applicant took all reasonable steps that he could, namely, he sought a deferral of studies due to his injury but was unsuccessful. 

32. It cannot sensibly be suggested that the above mentioned injury did not contribute significantly towards the applicant’s breach of his visa condition.  These are matters not within the reasonable control of the applicant and on that basis, it cannot be suggested that the applicant was reasonably in control of the facts and circumstances that contributed to the breach of his visa condition.  Further, there is no evidence that the applicant has acted imprudently, or attempted to avoid his studies. 

33. The Tribunal therefore gives the above factors significant weight towards the visa not being cancelled. 

    Past and present behaviour of the visa holder towards the Department

34. The applicant has conducted himself in good faith in his dealings with the Department.  This is demonstrated by the fact that he responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with his response to the Department and with contemporaneous medical evidence.  I give this significant weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

35. Not applicable.

    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

36. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete any study before returning home.  Given the circumstances set out above, this would be manifestly unfair and I give this some weight in favour of the visa not being cancelled. 

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

37. Not applicable.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

38. Not applicable.

    Any other relevant matters

39. Not applicable. 

40. As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and was occasioned by matters not reasonably within his control, namely, a serious, injury for which he was hospitalised shortly prior to the cancellation of his enrolment.  It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

42. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Vanessa Plain
    Member