MISTRY (Migration)

[2019] AATA 6514

MISTRY (Migration) [2019] AATA 6514 (18 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARSHKUMAR PIYUHSBHAI MISTRY

CASE NUMBER:  1707233

HOME AFFAIRS REFERENCE(S):          BCC2017/542377

MEMBER:Lynda Young

DATE:18 November 2019

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 18 November 2019 at 9:23am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – compelling and compassionate circumstances – expiry of English Test Score delayed enrolment – applicant’s short period without enrolment during academic summer break – family illness – conditional course offer from university – evidence of applicant’s attempts to enrol – decision under review set aside 

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8202

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 April 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 applicant’s visa, granted on 13 November 2015, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    On 17 March 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant was not enrolled in a registered course of study from 12 December 2016 to 23 March 2017.  The applicant’s response to the NOICC, emailed to the Department on 24 March 2017 and 31 March 2017, did not dispute the ground for cancellation existed, but did provide reasons why the visa should not be cancelled.

4. On 3 April March 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study between 12 December 2016 and 23 March 2017, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5.    The applicant applied to the Tribunal for review of the decision on 5 April 2017, and attached to his application, a copy of the Notice of Cancellation, the Decision Record and his passport bio page (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

6.    The applicant appeared before the Tribunal on 29 April 2019 to give evidence and present arguments. 

7.    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

ISSUES

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

9. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

10.      In this case, condition 8202 was imposed on the applicant’s student visa.

11.      Condition 8202, as it applies in this case, is set out in the attachment to this decision.  Relevantly, it requires 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).

12. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

13. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

a.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;

b.the extent of compliance with visa conditions;

c.degree of hardship that may be caused (financial, psychological, emotional or other hardship);

d.circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

e.past and present behaviour of the visa holder towards the department;

f.whether there would be consequential cancellations under s.140;

g.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;

h.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;

i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

j.any other relevant matters.

14.      The issues for the Tribunal’s determination in this case are:

a.does the ground for cancellation in s.116(1)(b) of the Act exist?

b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

15.      The evidence before the Tribunal on this application comprises:

a.documents on the Department’s cancellation file, relevantly, the NOICC and the applicant’s response to the NOICC provided to the Department on 24 March 2017 and 31 March 2017, comprising:

b.documents on the Department’s cancellation file, relevantly, the NOICC and the applicant’s response to the NOICC provided to the Department on 24 March 2017 and 31 March 2017, comprising:

i.Applicant’s email to the Department dated 24 March 2017; and

ii.Applicant’s email to the Department dated 31 March 2017, attaching Copy of CoE (8B785699) Bachelor of Business (Information Systems Management) issued by Victoria University on 24 March 2017;

iii.CoE letter issued by Victoria University dated 30 March 2017;

iv.current Enrolment Course and Units details .

v.PTE English test results;

c.Documents the applicant provided to the Tribunal, including

i.the application, including the attached Notice of Cancellation and the Decision Record;

ii.the applicant’s “Responding to the Invitation to Attend a Hearing” email dated 25 April 2019, attaching Pearson VUE Confirmation of Payment - Transaction Date 15 Feb 2017; Medical records and invoices for Mrs Hansaben Mistry; Email chain of correspondence between applicant's education agent and ECA from 20 Jan 2017; and Applicant’s “Response to the invitation to hearing on 29 April 2019.” Statement;

iii.the applicant’s “Additional Information” email, dated 27 April 2019, attaching email chain of correspondence between applicant's education agent and ECA from 25 November 200 Jan 2017

iv.Applicant’s bank account statement showing payment to Pearson Vue on 17 February 2017;  

d.Movement Records and PRISMS summary for the applicant; and

e.the applicant’s evidence at hearing.

The NOICC

16.      The Department’s NOICC issued 17 March 2017, notified the applicant it intended considering cancellation of his visa based on PRISMS evidence from which it appeared he had not been enrolled in a registered course of study since 12 December 2016, possibly breaching visa condition 8202(2)(a). The applicant was invited to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter she considered relevant.

NOICC Response

17.      The applicant, in his 24 March 2017 email to the Department in response to the NOICC, stated, relevantly:

“I am seeking to get 5 more working days of extension in this matter as my English test result of Pearson Test of English Academic (English language readiness test) 'PTE", has come out today.

English test was the main hindrance for my current university to get me enrolled due to the expiry of my English score (more than 2 years old). University has issued me a COE already on the basis of my today's English score.

I will update you with Enrollment evidence early next week as soon as my University provide me.

My orientation is on Monday.”

18.      The Department granted his requested extension and the applicant, in his 31 March 2017 email to the Department, stated, relevantly:

“…thank you for giving me an extension of another 5 working days, which helped me to gathered required documents. ·

After successful English test result, university offered me direct unconditional entry to the main course and issued COE. I have enrolled in a course at Victoria University. (Evidence of Enrollment attached with this email).

English test was the main hindrance for my current university to get me enrolled due to the expiry of my English score (more than 2 years old)

Please find attached documents which will help you in this matter.

…

Attached:

• COE issued by Victoria University 'VU'

• Confirmation of Enrollment Letter as a full-time student at VU

• Current Enrollment Course and Units details

• PTE English test results”

The decision record

19.      The decision record relevantly set out, in summary:

a.the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 November 2015, with a stay period to 15 March 2019;

b.the Department’s NOICC issued on 17 March 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study from 12 December 2016 to 23 March 2017;

c.the applicant, in his response to the NOICC, did not dispute there were grounds for cancellation, and provided reasons why his visa should not be cancelled;

d.in the visa application process, the applicant stated his intended purpose of travel to and stay in Australia was to study;

e.PRISMS evidence shows, on 24 March 2017, the applicant, after being issued the NOICC on 17 March 2017, obtained a Confirmation of Enrolment in Bachelor of Business (Information Systems Management at Victoria University;

f.obtaining further enrolment after he was  issued a NOICC does not negate or excuse the non-compliance;

g.although the applicant had not provided any information about hardship, the delegate accepted the applicant, if his visa were cancelled:

h.may be caused some hardship on being required to depart Australia but may be eligible for a Bridging Visa E, providing time for him to finalise outstanding matters;

i.if he did not voluntarily depart Australia ,would become an unlawful non-citizen and be liable for detention under s189 and removal under s198 of the Act;

j.would be subject to s.48 of the Act, significantly limiting the classes of visa for which he may apply onshore;

k.would be subject to Public Interest Criterion 4013, and may not be granted a temporary visa for three years;

l.the delegate gave little weight to the applicant’s explanation that expiry of his English Test Score was the main hindrance for his current enrolment  as the applicant sat the PTE English test exam, on 23 March 2017 – after the NOICC issued.  The applicant had not provided any additional evidence to show that he commenced action to sit this PTE test prior to being issued the NOICC;

m.there was no information indicating any specific matters of relevance  regarding the applicant’s behaviour toward the Department

n.cancellation of the visa would not result in the automatic consequential cancellation of any dependent visa holders;

o.there was no information indicating cancellation of the visa would not lead to a breach of Australia's international obligations;

p.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

Applicant’s prehearing statement

20.      In his response to the invitation hearing on 29 April 2019, the applicant stated [relevantly extracted]:

“Department’s CONSIDERATION OF VISA CANCELLATION

…

GROUND(S) FOR CANCELLATION

The ground(s) for cancellation considered in this decision record are:

s116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(b) its holder has not complied with a condition of the visa;

Harshkumar Piyuhsbhai MISTRY was notified of the intention to consider cancellation (NOICC) on 17 March 2017 and the notice invited Harshkumar Piyuhsbhai MISTRY to respond in writing.

Background:

I received email from the department for the consent to receive correspondence which I did on 17th March 2017.

The NOICC was received on the same day that is 17th March 2017 on my email ID.

On 24 March 2017 and 31 March 2017, I sent an email in response to the Department’s NOICC.

I am not conversant with the regulations of Australian migration Law hence answered according to my understanding as an international student about the issues raised by the department in my cancellation matter

OFFICER COMMENTS IN MY MATTER ARE AS UNDER;

I have considered the above information, however the copy of the PTE English test results provide that Harshkumar Piyuhsbhai MISTRY sat the test on 23 March 2017. This date is clearly after when the NOICC was issued to him on 17 March 2017. Harshkumar Piyuhsbhai MISTRY did not provide any additional evidence to show that he commenced action to sit this PTE test prior to being issued the NOICC. It appears that Harshkumar Piyuhsbhai

MISTRY has only obtained a CoE once being issued the NOICC on 17 March 2017, and may have remained non-enrolled if he had not been issued the NOICC. I therefore give little weight in his favour in considering this factor.

I would like to clarify points as under for above mentioned officer comments;

•         I have booked my English test on 15th February 2017 (first available date was 23rd March 2017), a month before NOICC issued on 17th March 2017 (Evidence Attached – Appendix A)

•         I have started for the admission into the VU since November 2016 but got

delayed due to my travel to India from 30th November 2016 till 4th February 2017.

•         It was a summer break as well during November 2016 to March 2017 as commented by officer that not holding valid CoE in any institute during the period of 12 December 2016 to 23 March 2017.

Please note that it was a summer break during above mentioned period. I was in between of change of course provider as my original course provider teaching methodology was not as i expected.

I have initiated to be enrolled in Victoria University ‘VU’ around November 2016 that is before I have asked my then current course provider to cancel my COE.

During that time I have received news that my grand-mother was sick. I was only 20 year old boy and am very close to my grand-mother. I immediately travelled to see her and to see her wellbeing. I travelled to India on 30 November 2016 and returned on 4th February 2017.

The process of change of course provider got delayed for above mentioned reason. Cancellation department didn’t take into the consideration of my summer break and without asking further detail cancelled my student visa.

When I first arrived at the age of 19 Years old after my Higher Secondary to pursue Bachelor degree in Information Technology at Federation University of Sydney campus at ATMC, I was completely new in international education system hence faced some trouble in first year and couldn’t cope with Federation University methodology.

I have answered according to query sent by cancellation section of the department. I sent all the information asked by the cancellation department. I have not explained at that point of time the reason for delayed enrollment in VU as they have only requested to provide information for not holding CoE (enrollment). My situation of the enrollment in the Victoria University got delayed due to my sudden travel to india to see my family members.

Timeline in this matter at the time of NOICC as below described; 

•         I arrived first time in Australia on 15th

•         November 2015 to study Bachelor of    Information Technology at Federation University – Sydney Campus in Australian Technical Management College

•         Started 1st Semester on 21st November 2015 – Enrolled 4 – Pass 1

•         Started 2nd semester in March 2016 – Enrolled 4 – Pass 2

•         Started 3rd Semester in June 2016 – Enrolled 4 – Pass 1

•         Sumer break in November 2016 till March 2017

•         Travelled to India to see sick grand-mother for more than 2 months – Returned on 3rd February 2017.

•         Admission process at VU started end of November 2016 (Conditional Offer Letter attached for Evidence)

•          Tried to Enroll at VU for March Intake due to study (Course) at federation was not as good as I thought due to their teaching methodology.

•          Admission process drag for some time due to English eligibility issue for enrollment

•         VU gave me ELICOS and also gave me option for PTE.

•         I have booked pte on 15th february 2017 for 23rd march 2017 appointment date for pte test (evidence attached)

•         NOICC received on 17th March

•         Asked for more time to obtain evidences from VU

Department officer didn’t take into the consideration of my long time attempt to get enrollment at vu and visa was cancelled with main reason that i have not attempted prior to noicc – that is not true as described above i have started process of enrollment at vu way back before i received the message of my grand-mother sickness.

My entire process got delayed and got PTE date late due to the compelling and compassionate circumstances existed.

I have presented with all the requested information to the cancellation department but unfortunately officer though otherwise and decided on the basis that I have started to take enrolment after the NOICC sent in my email.

Compelling and Compassionate Circumstances in my family composition:

I would like to describe my family composition which has affected my entire education due to compelling and compassionate circumstances.

My father passed away on 3 January 2014 when I was initially trying for study in Australia. My father was the person who encouraged me to study in Australia and obtained international level of study for my personal growth and also our family business of graphic design and printing to take next level of technological advantage with software and animation inclusion. (Evidence of my father’s death certificate attached as an Appendix – B)

Please Note: Translated version I will arrange soon as it has just come to my attention

After his death, I was shattered as he died at a young age of 40 years. I was only 19 years of young child just out of higher secondary school. My mother is a house wife and also has young sister in a family. My grand-mother also was very disturb due to her son (my father) death at a young age. She became traumatic as well and her health got affected big time. In this entire adverse situation, my mother encouraged me to go and study in Australia as my father dreamed about it.

…

I was so much of disturbed going through all these scenarios and travelled in November 2016 to India for two months to see my family member as I am the only male in my family. I have great responsibility to keep entire family together hence my studies also affected due to constant worrying about situation in India.

Meanwhile my COE was cancelled by Federation University at Sydney Campus. I have initiated my new enrollment process before COE Cancellation but unfortunately I had to travel to India it was delayed as I arrived in first week of February. Department sent NOICC and cancelled my visa with the reason that I have started my enrollment process after the NOICC notice that is not true.

Please find query raised in cancellation of Visa letter and my explanation as below;

In Harshkumar Piyuhsbhai MISTRY response, he did not dispute there are grounds for cancellation.

•         I was not aware of the regulation hence did not dispute but simply tried to answer department’s query.

Harshkumar Piyuhsbhai MISTRY provided reasons why the visa should not be cancelled.

•         As mentioned above I simply submitted the COE issued by the Victoria University which department officer thought I have obtained after the NOICC notice that is not true as explained above.

Harshkumar Piyuhsbhai MISTRY has not complied with condition 8202 which was imposed on his visa.

•         I have complied substantially with the visa conditions as a student visa holder. I have always enrolled during the education terms were in session. Due to compelling and compassionate circumstances I was able to pass 4 subjects in ATMC and after my visa cancellation 4 subjects in VU.

Summation:

In response to the Department’s NOICC, I provided that my English Test was the main hindrance for my current university to get enrolled due to the expiry of my English Score (more than 2 years old). Cancellation officer didn’t ask for further clarification as I provided information with the best of my understanding at the time of query raised by the departmental officer. As I mentioned earlier, I am not conversant with the migration regulations hence provided information as an international student according to my understanding.

…”

The applicant’s evidence at hearing

21.      The applicant’s evidence at hearing as germane to the issues in this case was, in summary:

a.the applicant has held two CoE’s since he commenced studying in Australia in 2015. His first, for a Bachelor of Information Technology (Business Systems), was cancelled on 12 December 2016 for unsatisfactory course progress. In response to the Tribunal’s question, the applicant frankly admitted he had not advised the department he had been placed on academic restriction or that his CoE was cancelled for unsatisfactory progress. The applicant explained he had not progressed well due to a combination of factors including his immaturity, the effect on him of his close relatives’ illnesses which had significantly affected him and his adjustment to a new environment and new culture. The Tribunal accepts the applicant and his studies were significantly impacted by these matters and they were causative of his unsatisfactory course progress and ultimately cancellation of his first CoE;

b.the applicant did not dispute he was not enrolled for the period alleged by the Department;

c.consistently with his statement provided prior to the hearing, the applicant told the Tribunal he had initiated his admission process with Victoria University prior to the cancellation of his first CoE, and that admission process had extended over the summer break.  The applicant, perhaps foolishly, had thought he would take his new offer/admission before the new term started in March 2017, after the summer break, and that would not affect his Visa;

d.the delegate’s concern as to the time at which the applicant sat his English test was answered by the applicant providing to the Tribunal a copy of the Pearson VUE invoice and his bank statement demonstrating the test fee was paid on 15 February 2017. The importance of this evidence is, not only does it establish the applicant arranged to sit the test prior to issue of the NOICC, it also demonstrates the applicant had obtained a conditional offer from Victoria University more than one month prior the NOICC issuing. That is, the steps the applicant took to obtain entry to Victoria University were well in train before the Department made any move toward cancellation of his Visa.  The Tribunal accepts this evidence;

e.using the procedure under s359AA of the Act, the applicant was provided with information obtained from the PRISMS indicating the CoE he obtained on 24 March 2017 and provided to the Department in response to the NOICC, was cancelled on 27 March 2017. The applicant was advised that were the Tribunal to rely on that information, the Tribunal would conclude the applicant had not been enrolled since 27 March 2017 and had not been studying since that time. The applicant elected to respond immediately and provided for the Tribunal’s immediate viewing on his mobile phone, which he later confirmed in writing, his online enrolment and student records which included his course results, information about his progression through the course, and his timetable for the current semester. Despite the PRISMS information, the Tribunal is satisfied from the information provided by the applicant that he has at all times since he obtained enrolment with Victoria University in March 2017, been enrolled in a registered course as required by condition 8202 of his Visa. The Tribunal is further satisfied from this information the applicant is progressing well and is on-track to complete his course on time;

f.the applicant’s future would be significantly impacted were his Visa to remain cancelled as he would be unable to complete his studies in Australia, and that would affect his earning potential in his home country. His parents future would also be affected in that circumstance as he would be less able to provide for them into their retirement years;

g.there are no dependent Visa holders to the applicant’s Visa;

h.although he would be embarrassed and humiliated to return home without his qualification, he did not have any fears of violence or other harmful actions consequent upon cancellation;

i.he has no children;

j.he wishes to be given the opportunity to complete his studies and believes he has demonstrated he is genuinely interested in doing so as he was, despite his Visa being cancelled, continuously enrolled in studying since obtaining entry to Victoria University.

DOES THE GROUND FOR CANCELLATION IN S.116(1)(B) OF THE ACT EXIST?

Did the applicant comply with Condition 8202?

22.      To his credit, the applicant frankly admitted he had not been enrolled as alleged by the Department. He has maintained that position since initially issued with the NOICC.  The decision record states and the applicant agrees, he rectified her non-enrolment on 24 March 2017 and from then on, according to the applicant’s evidence he has remained continuously enrolled. 

23.      On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study after 12 December 2016 until obtaining, and thereafter continuously maintaining, enrolment in a registered course on and from 24 March 2017.  As a result, the applicant failed to comply with visa condition 8202(2)(a).

24. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

25. As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

Consideration of the discretion to cancel the visa

26. 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.

27.      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’

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

28.      The Tribunal is satisfied the applicant’s intended purpose for her travel to and stay in Australia was study.  The applicant’s evidence demonstrates to the Tribunal this was his intention and the decision record states there is no evidence to the contrary.

29.      On the evidence before the Tribunal, the applicant was not enrolled in any course of study for three months and 11 days between 12 December 2016 and 23 March 2017. The Tribunal accepts the applicant, as he stated and as his movement records confirm, was not in Australia between 30 November 2016 and 5 February 2017. A period of 46 days elapsed between when the applicant returned to Australia and when he obtained re-enrollment. As the applicant booked his English test on 15 February 2017, a period of 10 days elapsed between the applicant returning to Australia and booking his English test required to obtain enrolment at Victoria University.

30.      Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia.  That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study.  Even when taken in that context, failure to be enrolled whilst onshore for a period of 46 days, only 10 of which were days during which there is no evidence to indicate the applicant was positively taking steps to obtain reenrolment, and considering the applicant had already commenced the process of obtaining reenrolment prior to the cancellation of his previous enrolment, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study in circumstances where he was at all times (other than potentially for 10 days) taking steps to do so whilst onshore is overall insignificant and does not weigh in favour of cancellation.  Rather, the applicant’s conduct demonstrates to the Tribunal the applicant always intended studying and he initially did not progress well, he addressed the problems causing his failure to academically progress, and took steps to obtain further enrolment. The Tribunal considers the applicant’s conduct appropriate.

31.      The applicant has, on the Tribunal’s findings, been continuously enrolled in a registered course since 24 March 2017.  The available evidence satisfies the Tribunal the applicant, in that period, has been continuously studying and progressing towards completion of his degree on time. The Tribunal is satisfied completing his studies provides a need for the applicant to remain in Australia.  The Tribunal gives his consideration weight in favour of not cancelling the visa.

The extent of compliance with visa conditions

32.      Other than his non-compliance with condition 8202(2)(a), there is no evidence before the Tribunal disclosing any instance of the applicant failing to comply with any conditions imposed on his visa.  The Tribunal weighs this consideration in favour of not cancelling the Visa

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

33. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

34. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

35.      The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

36.      The applicant’s evidence which the Tribunal accepts was that his future would be significantly impacted were his Visa to remain cancelled as he would be unable to complete his studies in Australia, and that would affect his earning potential in his home country. His parents’ future would also be affected in that circumstance as he would be less able to provide for them into their retirement years. The Tribunal was this consideration favour of not cancelling the Visa.

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

37.      The applicant’s explanation of the circumstances in which the ground cancellation arose is summarised above in paragraph 21.c (see also paragraph 20) . The Tribunal accepts the applicant’s explanation.

38.      Although it may be said the applicant foolishly did not familiarise himself with the Visa requirements so that he was not in a position of being not enrolled between 12 December 2016 and 23 March 2017, the Tribunal accepts the reason the applicant failed to be enrolled was genuinely product of his intention to take his summer break and commence his new enrolment at the beginning of the next semester.

39.      In the circumstances, the Tribunal weighs this consideration neither in favour of nor against cancellation.

Past and present behaviour of the visa holder towards the department

40.      There is nothing in the evidence before the Tribunal to suggest the applicant’s past or present behaviour towards the Department was adverse.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there would be consequential cancellations under s.140

41.      On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

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

42. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in-force, result in his immediately becoming unlawful and liable to detention under s.189 of the Migration Act or removal under s.198 of the Migration Act.

43. The Tribunal accepts the applicant would, if her visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

44.      The Tribunal gives this consideration weight in favour of not cancelling the visa. 

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

45.      Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments, which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

46. Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

47.      On the applicant’s evidence at hearing, his reason to remain in Australia is to complete his studies.  He will return to his home country after completing his degree.  The applicant’s evidence as to problems he would be caused if he returned before completing his studies did not extend beyond those difficulties as would ordinarily and reasonably be foreseen as likely to afflict any unqualified person competing in a candidate pool of mostly qualified persons on an open labour market.  Those matters would not attract non-refoulement obligations.

48.      The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

49.      There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

50.      The Tribunal considers these factors weigh neither in favour of nor against cancellation.

if the applicant’s visa is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

51.      The applicant’s visa is a not a permanent visa.

Any other relevant matters

52.      The evidence before the Tribunal does not disclose any other relevant matters.

Conclusion

53.      The applicant has demonstrated he is a genuine student who should have his visa reinstated, and be given the opportunity to pursue his intended study, progressing to completion of his bachelor’s degree.  He has, on and from 24 March 2017, remained continuously enrolled in a registered course and has, over that period, demonstratively progressed academically and is due to complete his degree in December 2019.

54.      Taken together and considered as a whole, the Tribunal is satisfied the matters weighing against cancellation of the visa significantly outweigh the matters weighing against cancellation of the visa.

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

DECISION

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

Lynda Young
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.