PAHONCHIYA (Migration)
[2020] AATA 861
•14 April 2020
PAHONCHIYA (Migration) [2020] AATA 861 (14 April 2020)
DECISION RECORD
| DIVISION: | Migration & Refugee Division | |
| APPLICANT: | Mr Mohammedzuber Gulamhusen Pahonchiya | |
| CASE NUMBER: | 1822031 | |
| HOME AFFAIRS REFERENCE: | BCC2018/953761 | |
| MEMBER: | Dr Jason Harkess | |
| DATE: | 14 April 2020 | |
| PLACE OF DECISION: | Melbourne | |
| DECISION: | The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa | |
Statement made on 14 April 2020 at 4:14pm
CATCHWORDS
MIGRATION – visa cancellation – Student (Temporary) (Class TU) Subclass 500 – non-compliance with visa condition – Condition 8202 – not enrolled in registered course – enrolled in course at lower AQF level than contemplated by visa grant – 11 months continuous non-compliance – whether extenuating circumstances – illness and death of grandfather – mental health issues – no supporting medical evidence – decision under review affirmed
PRACTICE & PROCEDURE – use of interpreter at hearing – Gujarati language – standard of interpretation – complaint by applicant – applicable principles – whether applicant denied procedural fairness – whether interpreter qualified and competent – whether complaint made during or after hearing – 14 specific interpretation errors alleged – all complaints unsubstantiated – no denial of procedural fairness
LEGISLATION
Migration Act 1958, ss 68, 116, 119
Migration Regulations 1994, Schedule 2 cls 500.211, 500.611; Schedule 8; Condition 8202; r 2.55
CASES
AZZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2037
Bzaid v Minister for Immigration and Border Protection [2016] FCA 508
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Perera v Minister for Immigration and Multicultural Affairs [1990] FCA 507
Shoukat v Minister for Home Affairs [2020] FCA 194
STATEMENT OF DECISION AND REASONS
INTRODUCTION AND OVERVIEW
Student Visa Cancellation – Application for Review
The Applicant is a citizen of India and is 31 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 27 July 2018 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged his review application with the Tribunal on 30 July 2018.
Original Visa Grant
The Applicant’s visa was granted on 11 November 2016. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]
[1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
The visa had an original expiry date of 30 September 2018 before it was cancelled. It provided for more than 22 months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Master of Health Science at Western Sydney University.
Reasons for Cancellation
The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, it was found that the Applicant had failed to comply with that condition which required him to maintain enrolment in a registered course of study that, once completed, would provide him with a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.
The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 27 July 2018.[2] By lodging his review application, the Applicant contends that the delegate’s decision to cancel his visa is neither the correct nor preferable outcome in this case.
[2] Notification was given in accordance with s 127 of the Migration Act 1958 (Cth) and reg 2.55(3)(d)ii) of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister on the date of the decision. By the operation of reg 2.55(8) of the Migration Regulations 1994 (Cth), the Applicant is taken to have received the notification and decision record on that date.
Issues for Determination by Tribunal
The first issue requiring consideration by the Tribunal is whether the grounds for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines those grounds are made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.
Hearing of Application
The Tribunal convened a hearing to consider the merits of the application on 16 October 2019.
Appearances
The Applicant appeared before the Tribunal by video link to give evidence and present arguments. The Applicant confirmed at the outset of the hearing that he had received the delegate’s decision record and he understood the delegate’s reasons for cancelling his visa.
The Applicant was assisted by his registered migration agent, Mr Shoaib Vahora, who also attended the hearing and participated by video link.
Documentary Materials
Prior to the hearing, Mr Vahora filed the following documents with the Tribunal:
(a)the delegate’s decision record (filed 30 July 2018);
(b)written submissions dated 7 October 2019 with 15 annexures marked ‘A’ to ‘O’ (filed 7 October 2019).
At the conclusion of the hearing, the Tribunal permitted the Applicant time to file further documentary materials in support of his case. The Tribunal received the following additional materials:
(a)supplementary written submissions by Mr Vahora dated 30 October 2019 with six annexures marked ‘A’ to ‘F’ (filed 30 October 2019);
(b)written statement of the Applicant dated 28 October 2019 with 11 annexures marked ‘A’ to ‘K’ (filed 30 October 2019);
(c)academic record from Wentworth Institute relating to the Applicant’s enrolment in a Diploma of Leadership and Management from 12 March 2018 to 27 July 2018 (filed 30 October 2019);
(d)Master of Public Health qualification issued to the Applicant by Western Sydney University on 8 April 2017 (filed 30 October 2019);
(e)academic record from Western Sydney University relating to the Applicant’s studies in a Master of Public Health from 2013 to 2016 (filed 30 October 2019);
(f)academic records from Rajasthan University of Health Sciences relating to the Applicant’s undergraduate studies in India from 2008 to 2012 (filed 30 October 2019);
(g)statutory declaration of Aamirsohel M Dadhaliyawala dated 30 October 2019 (filed 30 October 2019);
(h)statutory declaration of Mohin Mohammadhabib Kuskiwal dated 30 October 2019 (filed 30 October 2019);
(i)email from Mr Vahora dated 30 October 2019 with attached word document reproducing correspondence between the Applicant’s former migration agent, Royal Migration, and Wentworth Institute over the period 21 February 2018 to 22 February 2018 (filed 31 October 2019).
Use of Interpreter
The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The interpreter participated at the hearing by telephone link.
Mr Vahora took issue with aspects of the standard of interpretation provided by the interpreter shortly after the commencement of the hearing. He also raised an issue with respect to aspects of interpretation at the end of the hearing. Following the hearing, the Applicant obtained a digital copy of the audio recording of the hearing from the Tribunal and reviewed the evidence that he had given. The Applicant has now taken issue with the adequacy of interpretation provided throughout the hearing. Between them, Mr Vahora and the Applicant have identified 14 separate instances of interpretation which they claim involved misinterpretation by the interpreter.
The issue of the adequacy of interpretation has raised the question of whether the Applicant was afforded procedural fairness at the hearing. The Tribunal has carefully considered the matters raised by the Applicant in relation to the standard of interpretation in detail below. The Tribunal has ultimately determined that the standard of interpretation provided was adequate and that there has been no denial of procedural fairness in this case.
Tribunal’s Determination
The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be affirmed. In reaching its decision, the Tribunal has had regard to:
(a)the delegate’s decision record;
(b)the oral evidence of the Applicant given at the hearing;
(c)the oral submissions of Mr Vahora made at the hearing;
(d)all written material filed by or on behalf of the Applicant before, during and after the hearing; and
(e)other relevant documents on the Tribunal and Department files.
The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[3]
ADEQUACY OF INTERPRETATION
[3] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material or fundamental in any given case. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
The Hearing
An issue with the interpreter was first raised by Mr Vahora approximately seven minutes into the hearing. Mr Vahora requested that the Tribunal repeat a question to the Applicant concerning the number of prior student visas that he had held while in Australia. Mr Vahora stated to the Tribunal that he speaks and understands Gujarati himself and was therefore able to comment on the standard of interpretation provided by the interpreter. He formed the view that the interpreter had misinterpreted the Tribunal’s question (Complaint #1).
There were no further concerns raised in relation to the standard of interpretation until the conclusion of the hearing some 80 minutes later. When the Tribunal invited Mr Vahora to make final submissions in relation to the Applicant’s case, Mr Vahora requested two weeks to file submissions and further evidence. He stated that he had detected another perceived misinterpretation by the interpreter of one of the Tribunal’s questions and the Applicant’s answer to that question which he wanted to address in those submissions. Specifically, he referred to a question of the Tribunal asking the Applicant what he plans to do if his visa is not cancelled. Mr Vahora submitted that the Applicant had stated that he would return to study a particular course at UTS if his visa is not cancelled. This apparently had been misinterpreted (Complaint #2).
The Tribunal expressed some consternation towards Mr Vahora for failing to raise further concerns about the standard of interpretation when they had become apparent to him. However, the Tribunal allowed the Applicant, and Mr Vahora on his behalf, to file any further evidence and submissions in relation to interpretation issues, and any other issue, by 30 October 2019.
Post-Hearing Evidence and Submissions
In his supplementary written submissions dated 30 October 2019, Mr Vahora did not make any further comment about the adequacy of the interpretation that was provided at the hearing. He did not make any further submissions about Complaint #1 and Complaint #2.
The Applicant, in his written statement dated 28 October 2018, identified several points of interpretation with which he now takes issue. In total, there appear to be 12 further specific instances of communication between himself and the Tribunal, in addition to those raised by Mr Vahora at the hearing, which the Applicant claims were misinterpreted. These complaints are identified as follows:
(a)Complaint #3: The Applicant stated that, at the hearing, he had said that he ‘was not required to pay [his] fees at [Western Sydney University] in March 2017 because [he] wanted to apply for Leave of Absence (LOA).’[4] He now complains that this was misinterpreted by the interpreter because she had communicated to the Tribunal the mere fact that he did not pay the fees. The Applicant expressed concern that the Tribunal, as a result of the perceived misinterpretation, may have formed a view that ‘the cancellation of COE may have been one of the causes of non-payment of [his] fees which was not true.’[5]
[4] Applicant’s statement dated 28 October 2019, [3]-[4].
[5] Applicant’s statement dated 28 October 2019, [3]-[4].
(b)Complaint #4: The Applicant referred to time-index 44:57-45:02 of the audio recording.[6] The Tribunal has reviewed this part of the audio recording. It includes an exchange between the Tribunal and the Applicant during which the Applicant admitted to having not paid his tuition fees at Western Sydney University and not travelling to India, the combination of which appears to have resulted in Western Sydney University cancelling his enrolment in the Master of Public Health Science on 16 May 2017. The Applicant now complains of misinterpretation by the interpreter.[7] The Applicant has failed to refer to any specific words or phrases which he says were misinterpreted.
[6] Applicant’s statement dated 28 October 2019, [5].
[7] Applicant’s statement dated 28 October 2019, [5].
(c)Complaint #5: The Applicant referred to time-index 48:27 of the audio recording.[8] The Tribunal has reviewed this part of the audio recording. Here, the Applicant stated that, following his enrolment at Western Sydney University being cancelled on 16 May 2017, he had received advice from his migration agent and Western Sydney University to the effect that, because of the cancellation of his enrolment, that this amounted to a breach of his student visa. The Applicant now complains of misinterpretation by the interpreter.[9] The Applicant has failed to specify the parts of his answer which he says were misinterpreted.
(d)Complaint #6: The Applicant referred to time-index 54:15 of the audio recording.[10] The Tribunal has reviewed this part of the audio recording. Here, the Applicant stated that in July 2017 he started his MBA first semester of studies, that he continued to attend college regularly, and that he had online studies to complete. The Applicant now complains of misinterpretation by the interpreter.[11] The Applicant has again failed to identify the words or phrases that were misinterpreted.
(e)Complaint #7: The Applicant referred to time-index 55:15 of the audio recording.[12] The Tribunal has reviewed this part of the audio recording. In response to a question from the Tribunal about when he stopped attending an MBA course at Wentworth Institute, the Applicant stated that he was not advised verbally or in writing that his enrolment had been cancelled. The Applicant now complains of misinterpretation by the interpreter.[13] The Applicant has again failed to explain the misinterpretation to the Tribunal.
(f)Complaint #8: The Applicant referred to time-index 56:05 of the audio recording.[14] The Tribunal has reviewed this part of the audio recording. Here, the Tribunal repeated the question referred to in Complaint #7 and expressed concern that the Applicant had not answered that question. The Applicant then answered by merely saying ‘2018’. The Tribunal told the Applicant that he needed to be much more precise. The Applicant now complains of misinterpretation by the interpreter.[15] He has again not explained the misinterpretation.
(g)Complaint #9: The Applicant referred to time-index 56:15 of the audio recording.[16] The Tribunal has reviewed this part of the audio recording. Here, the Applicant responded to the Tribunal’s request that he be more precise (see Complaint #8 above). The Applicant stated that when he went to Wentworth Institute in February 2018 to pay his fees, the college advised him that his enrolment had been cancelled. The Applicant now complains that there was misinterpretation by the interpreter.[17] Again, he has not explained the error.
(h)Complaint #10: The Applicant referred to time-index 59:35 of the audio recording.[18] The Tribunal has reviewed this part of the audio recording. Here, the Tribunal asked the Applicant where his academic results were, from Wentworth Institute, for the end of 2017. The Applicant responded by saying that college had cancelled his enrolment on 29 August 2017. The Applicant now complains his words were misinterpreted.[19] Again, he has failed to explain the interpretation error.
(i)Complaint #11: The Applicant referred to time-index 01:04:11 of the audio recording.[20] The Tribunal has reviewed this part of the audio recording. Here, the Tribunal had put to the Applicant that he was trying to hide from the Tribunal the fact that he had disengaged from studying well before February 2018, that he had admitted he did not sit his final exams in around November 2017, and that he most likely disengaged from studying in about August 2017. The Tribunal invited the Applicant to comment. The Applicant responded by stating that he wanted to explain that he had been under severe depression as a result of his grandfather’s death at the time. He said that he could not continue to concentrate on his studies. He said that it was only when he went to pay his fees that he was told his enrolment had been cancelled. The Applicant now claims his words were misinterpreted.[21] The Applicant has against failed to identify with any degree of precision the interpreter’s error.
(j)Complaint #12: The Applicant referred to time-index 01:04:35 of the audio recording.[22] The Tribunal has reviewed this part of the audio recording. Here, following the Applicant’s response referred to in Complaint #11 above, the Tribunal told the Applicant that he needed to answer the Tribunal’s question more directly. The Tribunal asked the Applicant, again, as to when he effectively disengaged from studying at Wentworth Institute. According to the interpreter, the Applicant stated, ‘How can I answer that?’. The Applicant complains of misinterpretation but, again, he has not explained the interpreter’s error.[23]
(k)Complaint #13: The Applicant referred to time-index 01:06:00 of the audio recording.[24] The Tribunal has reviewed this part of the audio recording. Here, the Tribunal reminded the Applicant of his obligation to answer the Tribunal’s questions truthfully, with reference to the Tribunal’s expressed concerns referred to above in Complaint #11 and Complaint #12. The Applicant then said that he was not under the impression that he had discontinued studying although he knew that he had not done his final exams. The Applicant complains of misinterpretation but, again, he has not explained the error.[25]
(l)Complaint #14: The Applicant referred to time-index 01:14:00 of the audio recording.[26] The Tribunal has reviewed this part of the audio recording. Here, the Tribunal put to the Applicant that the essence of his submissions was that, for about an entire 11 months, he was disengaged from studying because he was suffering severe depression and, possibly, anxiety. He said that there was no other reason for him being disengaged from his studies. The Applicant now complains that there was misinterpretation by the interpreter.[27] Again, he has not explained the interpreter’s error.
[8] Applicant’s statement dated 28 October 2019, [5].
[9] Applicant’s statement dated 28 October 2019, [5].
[10] Applicant’s statement dated 28 October 2019, [5].
[11] Applicant’s statement dated 28 October 2019, [5].
[12] Applicant’s statement dated 28 October 2019, [5].
[13] Applicant’s statement dated 28 October 2019, [5].
[14] Applicant’s statement dated 28 October 2019, [5].
[15] Applicant’s statement dated 28 October 2019, [5].
[16] Applicant’s statement dated 28 October 2019, [5].
[17] Applicant’s statement dated 28 October 2019, [5].
[18] Applicant’s statement dated 28 October 2019, [5].
[19] Applicant’s statement dated 28 October 2019, [5].
[20] Applicant’s statement dated 28 October 2019, [5].
[21] Applicant’s statement dated 28 October 2019, [5].
[22] Applicant’s statement dated 28 October 2019, [5].
[23] Applicant’s statement dated 28 October 2019, [5].
[24] Applicant’s statement dated 28 October 2019, [5].
[25] Applicant’s statement dated 28 October 2019, [5].
[26] Applicant’s statement dated 28 October 2019, [5].
[27] Applicant’s statement dated 28 October 2019, [5].
Applicable Principles
Case Law
Relevant legal principles pertaining to the use of interpreters, and to the standard of interpretation required in Tribunal proceedings, were recently summarised by the Federal Court.[28] They may be restated as follows:
[28] See AZZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2037 (O’Callaghan J), [21]; Bzaid v Minister for Immigration and Border Protection [2016] FCA 508 (Edelman J), [52].
(a)Interpretation involves an exercise of expert judgment resulting in the articulation of words in two or more languages which have close correspondence in meaning.[29]
[29] AZZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2037 (O’Callaghan J), [21]; Bzaid v Minister for Immigration and Border Protection [2016] FCA 508 (Edelman J), [52]; Perera v Minister for Immigration and Multicultural Affairs [1990] FCA 507 (Kenny J), [29].
(b)An interpreter need not achieve a ‘perfect’ interpretation (indeed, it may be impossible to do so). An interpretation of words is adequate if it conveys the essential elements of what has been said by one person in one language to another person using another language.[30]
(c)The standard of interpretation provided at a hearing will be adequate overall if the substance of the applicant’s case, and his or her response to the issues raised, have been effectively communicated to a sufficient degree such that the hearing can be described as ‘real’ and ‘fair’.[31]
(d)In determining whether the standard of interpretation sustained a real and fair hearing, consideration must be given to the particular circumstances of the case, including:[32]
(i)the course the hearing took;
(ii)the reasoning of the decision-maker;
(iii)the frequency of errors in interpretation (frequent or continuous errors are more likely to lead to the conclusion that there has been a denial of procedural fairness denied);
(iv)whether intermittent errors in interpretation, each of which is not in itself significant, may have resulted in a denial of procedural fairness in their aggregation;
(v)whether a particular error of interpretation has led to a material adverse finding (the unfairness of the hearing will often be self-evident in such a case);
(vi)whether the irregularity in interpretation might reasonably have led to an adverse finding because of its materiality, repetition or context.
[30] AZZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2037 (O’Callaghan J), [21]; Bzaid v Minister for Immigration and Border Protection [2016] FCA 508 (Edelman J), [52].
[31] Bzaid v Minister for Immigration and Border Protection [2016] FCA 508 (Edelman J), [52].
[32] Bzaid v Minister for Immigration and Border Protection [2016] FCA 508 (Edelman J), [52].
The Tribunal has considered the practical application of these principles when the adequacy of interpretation is raised as an issue prior to a decision on a review application being made. The manner and extent to which the principles may be practically applied depends on whether the issue is raised during or after the hearing.
Complaints Made During Tribunal Hearing
If it becomes apparent to the Tribunal in the course of the hearing that there may be an issue with respect to the adequacy of interpretation provided by the interpreter in relation to a witness, the Tribunal may make a determination as to whether the interpreter is suitably qualified and competent to continue to function as an interpreter for that witness. The Tribunal may proceed to make that determination in the following manner:
(a)The Tribunal should satisfy itself that the interpreter is able to communicate effectively with the Tribunal in English.
(b)The Tribunal may invite the interpreter to state their qualifications and experience in relation to interpreting the language of the witness (‘the native language’). The Tribunal should form a view as to whether the interpreter’s stated qualifications and experience establish that the interpreter is suitably qualified to function as a competent interpreter of the native language in relation to the witness.
(c)If it is obvious to the Tribunal that the witness appears to be having difficulty in communicating effectively with the interpreter, the Tribunal should:
(i)draw the interpreter’s attention to that fact; and
(ii)invite the interpreter to comment on whether the apparent difficulty in communication may be attributable to a linguistic cause that is affecting the interpreter’s ability to interpret the native language in relation to the witness;
(d)The Tribunal should otherwise invite the interpreter to comment on:
(i)whether the interpreter has perceived any apparent difficulties in communicating with the witness in the native language; and
(ii)whether any such difficulties may be attributable to a linguistic cause that is affecting the interpreter’s ability to interpret the native language in relation to the witness.
(e)If the interpreter has informed the Tribunal that either the witness or the interpreter (or both) are experiencing difficulties in communicating with one another in the native language, and that those difficulties are attributable to a linguistic cause, the Tribunal should invite the interpreter to comment on whether the problem in communication is of such material significance that effective communication between the interpreter and the witness is incapable of being maintained.
(f)The Tribunal may invite the witness to comment on their ability to communicate effectively with the interpreter in the native language. If the witness indicates that they are experiencing difficulties, the witness may then be invited to comment on whether they believe those difficulties to be attributable to a linguistic cause that is affecting the interpreter’s ability to interpret. (Note: The Tribunal may not be able to engage with the witness on this issue if the language barrier between the witness and the interpreter appears to be fundamental, and the witness does not have a basic grasp of English so that they can communicate with the Tribunal directly.)
(g)The Tribunal may invite the applicant (if the applicant is not the witness), or the applicant’s representative,[33] to comment on the interpreter’s qualifications and experience, and the interpreter’s ability to function as a competent interpreter of the native language in relation the witness.
[33] Section 366A(2) of the Migration Act 1958 creates a general prohibition against an applicant’s representative being able to present arguments or to address the Tribunal at a hearing, unless the Tribunal is satisfied that there are ‘exceptional circumstances’. The Tribunal may consider an issue pertaining to adequate interpretation arising at the hearing to be of such significance that the Tribunal invites the applicant’s representative to address the Tribunal in relation to the issue.
The Tribunal should then proceed to determine whether the interpreter is suitably qualified and competent to continue to function as an interpreter for the witness having regard to the above, bearing in mind the following:
(a)The primary consideration should be whether there exists a problem in communication between the witness and the interpreter, that is attributable to a linguistic cause, and is of such material significance that effective communication between the interpreter and the witness is not capable of being maintained.
(b)The Tribunal does not possess the necessary qualifications and experience to make its determination without drawing upon the expert judgment of the interpreter.
(c)Neither the witness, the applicant, nor the applicant’s representative possess the necessary qualifications and independence to be able to categorically contradict the expert judgment of the interpreter.
(d)The Tribunal should, accordingly, generally defer to the expert judgment of the interpreter.
If the Tribunal determines that the interpreter is suitably qualified and competent to continue to function as an interpreter in relation to the witness, the interpreter should be retained and the hearing should proceed. The Tribunal should otherwise dismiss the interpreter and adjourn the hearing so that arrangements can be made for a suitably qualified and competent interpreter to be engaged in the case at a later time.
Notwithstanding that an interpreter is found to be suitably qualified and competent, a claim may be made that one or more parts of the evidence of the applicant, or of another witness, have been misinterpreted by the interpreter. Where such a claim is made:
(a)In relation to each instance of claimed error, the applicant or their representative should:
(i)with a reasonable degree of precision, identify the words or phrases that the witness articulated in the native language, or that the Tribunal articulated in English, which are alleged to have been misinterpreted by the interpreter (‘the original words’);
(ii)with a reasonable degree of precision, identify the corresponding words or phrases that were articulated by the interpreter that constitute the interpreter’s interpretation of the original words (‘the interpretation’);
(iii)explain why the interpretation of the original words is inaccurate; and
(iv)provide an alternative interpretation of the original words which the applicant contends is accurate.
(b)The Tribunal may invite the interpreter to comment on the claimed error, which may then lead to the following outcome:
(i)If the interpreter agrees that the original words were possibly misinterpreted, and that the applicant’s alternative interpretation may be more accurate, the Tribunal may accept the alternative interpretation as contended by the applicant in substitution for the interpreter’s original interpretation. If this occurs, any possible breach of procedural fairness that may have arisen in relation to this instance of misinterpretation is effectively cured.
(ii)If the interpreter does not accept the applicant’s claim of misinterpretation, in whole or in part, for reasons that have been set on out in paragraphs [25](b) and (c) above the Tribunal should generally defer to the expert judgment of the interpreter.
(c)In the absence any additional time being sought by the applicant or their representative to file further evidence and submissions after the hearing, the procedures adopted in (b) above will generally address any potential issues of procedural fairness arising in relation to the adequacy of interpretation. The Tribunal may then proceed to make a decision in relation to the review application, having regard to any determinations it may have made in relation to interpretation issues that arose during the hearing.
Complaints Made After Tribunal Hearing
The Tribunal may not be in a position to make a final determination at the hearing as to the qualifications and competence of the interpreter to interpret for a particular witness, the accuracy of certain aspects of interpretation, or the overall adequacy of the interpretation. That may be because issues pertaining to the standard of interpretation were not raised until after the hearing concluded. Alternatively, although issues may have been raised at the hearing, the Tribunal may have considered it appropriate to defer making a determination on these issues until the applicant had been given an opportunity to file further evidence and submissions.
For several reasons, the Tribunal should be cautious when considering a complaint about interpretation if no such complaint was made at the hearing. First, if the standard of interpretation was materially deficient, the apparent difficulties experienced by the witness and interpreter when communicating with one another would likely have been obvious to all concerned. One would have expected the issue to have been raised at the time, if not by the interpreter or the witness, then by the applicant, the applicant’s representative or by the Tribunal itself.
Secondly, following a hearing, an applicant may believe there is an increased likelihood of an unfavourable determination being made in relation to the review application. That belief may have been formed upon the applicant reflecting how the evidence given at the hearing unfolded, and how it might be viewed by the Tribunal. A complaint about the standard of interpretation is a procedural grievance that compels the Tribunal to consider the extent to which it may fairly make factual findings based on the interpreted evidence. If the complaint is accepted, the Tribunal may be unable to use the evidence to make factual findings that it might otherwise have made. If that potential outcome serves the interests of the applicant, the motives of the applicant for making a complaint about the quality of interpretation must be considered. They may not necessarily be founded on a genuine desire to bring errors of a linguistic nature to the Tribunal’s attention.
Thirdly, there are procedural impediments in dealing with interpretation issues raised at a later stage. They cannot be addressed in the same way as they could have been dealt with at the hearing. The interpreter is no longer immediately accessible and so cannot comment on the complaint. Nor is the Tribunal likely to have elicited from the interpreter a statement of their qualifications and experience.
The Tribunal should not allow itself to be placed in a position where it must speculate as to the competence of the interpreter and the unchallenged claims about certain aspects of interpretation. While the procedures of the Tribunal are not founded in a system of adversarial justice, it would be wrong for the Tribunal simply to accept an applicant’s complaint. The complaint must be independently substantiated and subjected to a reasonable degree of scrutiny. For this reason, the Tribunal should proceed to deal with a complaint about the adequacy of interpretation that is made after a hearing in the following way:
(a)In the absence of cogent evidence produced by the applicant demonstrating the contrary, the Tribunal should make certain presumptions, namely:
(i)The Tribunal registry exercised all due care in securing the services of a professional interpreter who was suitably qualified and competent to interpret in the native language and English at the Tribunal hearing.
(ii)The interpreter was sufficiently independent and had no personal interest in the outcome of the review application.
(iii)The interpreter’s legal promise to interpret to the best of their ability, given to the Tribunal at the commencement of the hearing, amounted to confirmation by the interpreter that they were was suitably qualified and competent to proceed to function as an interpreter at the hearing.
(iv)All instances of interpretation provided by the interpreter throughout the hearing were reasonably accurate and were of an acceptable standard.
(v)The standard of interpretation provided at a hearing was adequate overall such that the hearing can be described as having been real and fair.
(b)Where a claim is made that one or more parts of the evidence of the applicant, or of another witness, were misinterpreted by the interpreter, the applicant must articulate the claim in the same manner as set out in paragraph [27](a) above in relation to each instance of claimed error, namely:
(i)with a reasonable degree of precision, identify the words or phrases that the witness articulated in the native language, or that the Tribunal articulated in English, which are alleged to have been misinterpreted by the interpreter (‘the original words’);
(ii)with a reasonable degree of precision, identify the corresponding words or phrases that were articulated by the interpreter that constitute the interpreter’s interpretation of the original words (‘the interpretation’);
(iii)explain why the interpretation of the original words is inaccurate; and
(iv)provide an alternative interpretation of the original words which the applicant contends is accurate.
(c)Any such claims of misinterpretation must be supported by independent expert evidence. Such evidence would typically come from a professionally qualified interpreter. That interpreter would most likely have been engaged by the applicant to review the audio-recording of the hearing, to provide an opinion as to the accuracy of the original interpreter’s interpretations, and to suggest alternative interpretations which the expert considers to be accurate.
(d)The Tribunal should then proceed to determine whether the standard of interpretation provided at the hearing was adequate overall such that the hearing can be described as having been real and fair. In making that determination, the Tribunal should have regard to the matters referred to in paragraphs [22](a)-(d) above and with particular attention being given to:
(i)whether the applicant has produced cogent evidence that demonstrates that the original interpreter may not have been suitably qualified or competent to have functioned as an interpreter at the hearing;
(ii)the cogency of the applicant’s expert evidence demonstrating the likelihood of error on the part of the original interpreter;
(iii)if an error of interpretation is established, the potential materiality of the error (in itself, or in combination with other established errors) with respect to the issues to be determined in the review application; and
(iv)the extent to which the Tribunal may be prepared to substitute an interpreter error for an accurate interpretation of the relevant words and phrases that has been suggested in the evidence of applicant’s independent expert.
If the Tribunal is satisfied that the standard of interpretation provided at the hearing was adequate overall, an applicant’s claim that they were denied procedural fairness must fail. However, if the Tribunal finds that the overall standard of interpretation was not adequate, and that the interpreter’s errors are unable to be ‘cured’ without a further hearing, the Tribunal may convene a further hearing before making a final determination in relation to the review application. That further hearing will, at the very least, provide the applicant (or other relevant witness) with an opportunity to have the words that were misinterpreted restated and reinterpreted. If that occurs, it would be preferable for the Tribunal to engage a different interpreter.
Standard of Interpretation in this Case
Qualifications and Competence of Interpreter
As outlined in paragraphs [17]-[19] above, the issue of the adequacy of interpretation was raised at the hearing by Mr Vahora at both the beginning and end of the hearing. The Tribunal was satisfied that the interpreter was, throughout the hearing, able to communicate effectively with the Tribunal in English. There were certainly no issues in that respect. However, as a result of Mr Vahora’s concerns about interpretation being repeated at the end of the hearing, the Tribunal asked the interpreter to declare her formal qualification’s and experience for the Tribunal’s record. She stated that she is a professional interpreter who has been accredited by Australia’s National Accreditation Authority for Translators and Interpreters (‘NAATI’) to interpret Gujarati and Swahili. As a NAATI-qualified interpreter, she said that she has been interpreting on a full-time basis for more than 20 years. She said that she is qualified to interpret in both legal and medical contexts, and that she regularly interprets for the Tribunal, the Australian Federal Police and for a number of other organisations.
The Tribunal then drew the interpreter’s attention to the concerns raised by Mr Vahora at the beginning and end of the hearing. The Tribunal inquired of the interpreter as to whether she had perceived any difficulties in communicating with the Applicant in Gujarati in the course of the hearing. She said that she had not. She also stated that she thought that the Applicant could understand her throughout the hearing. Furthermore, she said that if at any point the Applicant did not understand what she was saying, the Applicant asked for further clarification and she would that clarification accordingly.
The Tribunal did not understand Mr Vahora’s concerns raised at the hearing as amounting to a submission that the interpreter was not qualified or competent to function as an interpreter of the Gujarati and English languages for the Applicant. There was also no suggestion was made by the Applicant that he was unable to communicate effectively with the interpreter in Gujarati during the hearing. The only concern the Applicant raised at the hearing related to the audibility of the interpreter, an issue which evidently resolved itself without further complaint. Neither Mr Vahora in his supplementary written submissions dated 30 October 2019, nor the Applicant in his written statement dated 28 October 2019, raised any further concerns that have brought into question the qualifications and competence of the interpreter and her general performance as an interpreter of Gujarati for the Applicant at the hearing.
Ultimately, the Tribunal was satisfied at the hearing, and remains satisfied now, that the interpreter performed her function adequately and to an acceptable standard throughout the hearing. The Tribunal finds that no problem in communication between the Applicant and the interpreter of material significance arose at the hearing. The Tribunal further finds that the interpreter was suitably qualified and competent to function as an interpreter of the Gujarati and English languages for the duration of the hearing.
Complaint #1
Complaint #1 was raised at the hearing by Mr Vahora. It related to the Tribunal’s inquiry of the Applicant concerning the number of previous Australian student visas he had held. Upon the complaint being raised, the Tribunal inquired of the interpreter as to whether she detected any problems associated with the interpretation process. She stated that she was not having any difficulty in understanding the Applicant or communicating with him in Gujarati. The interpreter raised with the Tribunal the possibility that the Applicant may not be understanding her, although it was apparent that she herself did not perceive there to be any problem.
The Tribunal then inquired of the Applicant as to whether he could understand the interpreter. He replied, in English, by saying ‘yes, a little bit’ and then elaborated by saying that he ‘can’t hear properly’. In this respect, the Tribunal did not understand the Applicant’s answer to be a complaint directed towards the standard of interpretation. Rather, it was a concern about the audibility of the interpreter’s voice that was being transmitted via the combination of telephone and video links.
Before the issue of audibility was able to be addressed by the Tribunal, the Applicant proceeded to speak exclusively in English on the subject concerning his previous student visas. The Tribunal posed questions and the Applicant gave answers without the assistance of the interpreter on this topic. The Applicant’s evidence demonstrated that he had been issued a total three student visas by the Australian government, the last of which was cancelled by the delegate and is now the subject of the present review application.
The Applicant’s evidence also disclosed a mistaken belief on his part that his second and third visas were ‘extensions’ of his first, rather than separate visas as the law defines them to be.[34] This mistake generated some degree of miscommunication between the Applicant and the Tribunal until the Applicant’s misunderstanding was corrected. That miscommunication was, however, resolved. Following an explanation given by the Tribunal, the Applicant eventually accepted that he had held three separate student visas while residing in Australia, including the last visa which was cancelled. At this point, Mr Vahora also accepted that the issue pertaining to the number of visas that had been previously held by the Applicant was resolved. If there had been any misinterpretation of the Tribunal’s original question by the interpreter, that complaint was now no longer capable of being sustained.
[34] Section 68 of the Migration Act 1958 (Cth) states that a substantive visa generally comes into effect on the day it is granted. Section 29 contemplates that a visa, when issued, may be valid for a fixed or indefinite period. In the case of a temporary student visa, the visa period is always fixed with reference to the length of the applicant’s proposed course of study (see Part 500 of Schedule 2 of the Migration Regulations 1994 (Cth)). Neither the Act nor the Regulations make provision for a substantive visa being ‘extended’. A non-citizen can extend their stay as a student in Australia by applying for, and being granted, a subsequent student visa.
Neither the Applicant nor Mr Vahora raised any further concerns following the hearing with respect to the audibility of the interpreter or in relation to issue of whether the Tribunal had properly understood the Applicant’s evidence in relation to the number of previous student visa that he had held. It appears that the Applicant does not press with the complaint. The Tribunal therefore finds that Complaint #1 is not substantiated.
Complaint #2
In his supplementary written submissions dated 30 October 2019, Mr Vahora has not elaborated any further in relation to Complaint #2. The Applicant in his written statement dated 28 October 2019 also does not elaborate upon this particular complaint.
The Applicant has failed to identify, with a reasonable degree of precision, the words or phrases that he articulated in Gujarati claimed to have been misinterpreted by the interpreter. The Applicant has also not identified the words or phrases in English that constituted the interpreter’s interpretation of those words. The Applicant has not provided any explanation as to why the interpretation was inaccurate. There is no alternative interpretation identified. There is no independent expert evidence in support of this complaint.
The Tribunal finds that Complaint #2 is not substantiated.
Complaint #3
The complaint is not clear. While the Applicant has directed the Tribunal’s attention to what he intended to say regarding the circumstances leading up to his enrolment being cancelled, he has not, with a reasonable degree of precision, identified the words or phrases claimed to have been were misinterpreted. There is no independent expert evidence to support the complaint.
The Tribunal finds that Complaint #3 is unsubstantiated.
Complaints #4 to #14
In relation to each of these complaints, the Applicant has not identified any words or phrases claimed to have been misinterpreted. There is no independent expert evidence supporting these complaints.
The Tribunal finds that Complaints #4 to #14 are all unsubstantiated.
Overall Standard of Interpretation
None of the complaints about interpretation have been substantiated. Overall, the Tribunal finds that the standard of interpretation provided by the interpreter to have been more than adequate. The Tribunal notes that it has reached this conclusion not only because the Applicant’s complaints lacked specificity. Consideration has also been given to the overall impression received by the Tribunal of the quality of interpretation that was provided by the interpreter at the hearing. In the Tribunal’s view, it was of a very high standard. The Tribunal found the interpreter to be highly professional and very capable in discharging her critical function. It was evident that she had a great deal of experience interpreting in Gujarati and English within formal and practical legal contexts. The interpreter was required to be especially attentive in this case because of the irregularity in which the Applicant spoke in his native language. The Applicant frequently interspersed his communications in Gujarati with English. When he spoke English, interpretation was obviously not needed. The Tribunal was impressed with the interpreter’s intuitive ability to adapt to the Applicant’s fluctuating preference in his choice of language. Overall, the Tribunal was unable to detect any faults in the way in which the interpreter engaged with the Applicant and the Tribunal in her capacity as a conduit for effective communication.
The fact that the Applicant frequently spoke English is itself also relevant for the purpose of assessing whether he was denied procedural fairness because of the claimed interpretation issues. While English is not the Applicant’s first language, it was evident to the Tribunal throughout the hearing that he is highly proficient in communicating in English as a non-native speaker of the language. The Applicant gave evidence over the course of the hearing which lasted for almost one and a half hours. During that time, the Applicant frequently alternated between listening and responding to the Tribunal’s questions with and without the aid of the interpreter. As a case in point, the discussion which led to the resolution of Complaint #1, as described in paragraphs [38]-[42] above, was communicated entirely in English. The extent of the Applicant’s ability and willingness to communicate with the Tribunal in English, rather than in Gujarati, resulted in the interpreter essentially functioning as a communications ‘back-up’ for a significant part of the Tribunal hearing. He drew upon the interpreter’s assistance when he needed it. However, when he chose to communicate exclusively in English, the Tribunal found him to be reasonably articulate in communicating his thoughts.
Accordingly, this is not a case where the review applicant was entirely dependent on an interpreter to participate effectively in the proceedings before the Tribunal from beginning to end. On the contrary, at many points the interpreter was not needed at all. Furthermore, on occasions when the Applicant chose to draw upon the interpreter’s assistance, the Tribunal was left with the impression that his decision to do so was borne out of an abundance of caution rather than absolute necessity. It is likely that the Applicant understood many of the Tribunal’s communications in English which he nevertheless chose to have interpreted. It is also likely that he would have been able to communicate many of his own thoughts in English, instead of communicating them in Gujarati. The Tribunal certainly directs no criticism towards the Applicant for using the interpreter when he believed it was necessary to do so. However, the extent to which he needed to rely on the interpreter is relevant for the purpose of assessing whether any claimed deficiency in interpretation might have impacted on his right to a fair hearing. Given his proficiency in English, the Tribunal considers that the risk of that occurring to have been significantly reduced.
Lastly, the circumstances in which the Applicant’s complaint was made cannot be overlooked. In the course of the hearing, only two particular complaints were made about interpretation. Those complaints were both raised by Mr Vahora, not the Applicant. The Applicant’s complaints only came after the hearing. They were largely directed towards parts of his evidence given in response to questions put to him by the Tribunal concerning his cessation of studies. On several occasions, the Tribunal found his answers to be non-responsive and evasive such that the question had to be repeated. As mentioned in paragraphs [21](j) and (k) above, at one point the Tribunal reminded the Applicant of his need to answer the Tribunal’s directly and of his obligation to tell the truth. The Applicant appeared to have become acutely aware of the Tribunal’s concern with respect to his non-responsive answers. He is likely to have reflected upon those answers after the hearing. In these circumstances, the Tribunal has significant concerns about the motivation for making his post-hearing complaint. The Tribunal is not satisfied that his motivation for making the complaint was founded on a genuine desire to bring errors of a linguistic nature to the Tribunal’s attention.
Conclusion
The Tribunal finds that the standard of interpretation provided at the hearing was adequate overall. The hearing may accurately be described as having been real and fair such that there has been no denial of procedural fairness.
GROUNDS FOR CANCELLATION
Applicable Law
Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.
Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa.[35] It requires the visa holder to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.
[35] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).
The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.[36]
[36] The AQF is administered by the Department of Education and Training. See generally <>
The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ‘downgrading’ to a simpler course. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.
Has the Applicant Failed to Comply with Condition 8202(2)(b)?
Delegate’s Allegations and Findings
As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete, a Master of Health Science at Western Sydney University. The Master’s course was to commence on 18 July 2016 and was to finish on 31 July 2018. A Master’s course sits at AQF Level 9.
As the delegate’s decision record further notes, on 10 May 2017 the Applicant’s enrolment in the Master of Health Science was cancelled by the course provider due to the non-payment of fees.
On 13 June 2017, the Applicant enrolled in a Master of Business Administration (‘MBA’) at Wentworth Institute. While this course maintained the necessary AQF Level that Condition 8202 obliged, according to the delegate the Applicant’s enrolment in this course was subsequently cancelled on 29 August 2017 by the course provider due to the Applicant giving notice of his cessation of studies. From this point, the Applicant’s breach of Condition 8202(2)(b) began to accrue because the Applicant was not enrolled in any course at all.
The delegate’s decision record further notes that the Applicant did not enrol in any other course until 29 March 2018 when he enrolled in a Diploma of Leadership and Management at Wentworth Institute. Diploma-level courses sit at AQF Level 5 and so did not restore the Applicant’s visa enrolment status to a non-breaching position. He continued to remain in breach of Condition 8202(2)(b) up until the date of his visa cancellation on 27 July 2018.
The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[37] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued.
[37] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].
In summary, the delegate found that the Applicant had breached Condition 8202(2)(b) of his visa because he had:
(a)ceased enrolment in a Master’s course on 29 August 2017 and did not proceed to enrol in any other course until 29 March 2018 (this period, totalling seven months, shall hereinafter be referred to as ‘the first part of the breach period’); and
(b)enrolled in an AQF Level 5 course on 29 March 2018 which, being a course that sits at a level lower than AQF Level 9, did not remedy the breach and so he continued to remain in breach up until the date of visa cancellation on 27 July 2018 (this period, totalling almost four months, shall hereinafter be referred to as ‘the second part of the breach period’).
When the first and second parts of the breach period are combined, this effectively amounts to almost 11 months during which the Applicant was in continuous breach of condition 8202(2)(b).
On 22 May 2018 the Department of Immigration and Border Protection (‘the Department’) notified the Applicant of its intention to consider cancelling his visa (‘the NOICC’). In accordance with s 119 of the Act, the NOICC:
(a)gave particulars of the allegation that the Applicant had not complied with Condition 8202(2)(b) of his visa;
(b)gave particulars of the information obtained from the PRISMS database that founded the allegation;
(c)informed the Applicant that not complying with Condition 8202(2)(b) constituted grounds for cancelling his visa; and
(d)invited the Applicant to show the Department that those grounds did not exist or that there was a reason why his visa should not be cancelled.
Applicant’s Initial Response to Allegations
The Applicant responded to the NOICC in writing on 28 May 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202(2)(b) of his visa as alleged, although he sought to explain the circumstances giving rise to the breach and submitted that his visa should not be cancelled.
Evidence Given by Applicant at Hearing
At the hearing before the Tribunal on 16 October 2019, the Applicant admitted that he was in breach of Condition 8202(2)(b) of his visa for the period 29 August 2017 to 27 July 2018.
Conclusion
Based on the evidence before the Tribunal, it is reasonably clear that the Applicant was in breach of his visa as alleged by the delegate. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(b) of his visa.
CONSIDERATION OF DISCRETION TO CANCEL VISA
Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.
Relevant Factors
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The matters that ought to be considered are specifically listed in PAM3 as follows:
(a)the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;
(b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);
(c)the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;
(d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;
(e)the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);
(f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;
(g)whether there are mandatory legal consequences arising from a decision to cancel the visa;
(h)whether Australia has obligations under any relevant international agreements that would be breached as a result; and
(i)any other relevant matter.
Circumstances
The Applicant first sought to explain the circumstances giving rise to his non-compliance with the Condition 8202(2)(b) in his NOICC. In summary, he attempted to explain the circumstances of the breach as follows:
(a)The Applicant enrolled in a Master of Health Science at Western Sydney University as originally contemplated by the visa grant. He completed his first semester of studies in that course.
(b)After his first semester of studies, he requested a leave of absence from Western Sydney University so that he could return to his home country of India for a short stay. He advised a student welfare officer at the university that he wished to return to India because he was suffering from stress and depression.
(c)Western Sydney University advised the Applicant that it would not approve his application for leave until it had evidence from him that he had left Australia. He consulted his education agent who counselled him not to leave the country until he received formal approval from the university as to his deferral. The evidence of his education agent conflicted with what he had been advised by the university. Upon the advice of his education agent, he remained in Australia. Western Sydney University subsequently cancelled his enrolment on 10 May 2017 because he chose to remain in Australia and did not pay his fees.
(d)The Applicant took immediate steps to enrol in another Master’s course so that he was not in breach of his visa. To this end, he took steps to enrol in the MBA course at Wentworth Institute on 10 June 2017. He said he received text messages from Wentworth Institute a few weeks into enrolment advising him of the need to attend classes. He then continued to attend classes and finished the semester.
(e)After summer vacation in early 2018, he returned to Wentworth Institute to pay his next semester of fees. It was at this point that he was surprised to learn that his enrolment had been cancelled on 29 August 2017. He said that he had received no notification of the cancellation from Wentworth Institute at that time. He had only discovered the cancellation in early 2018.
(f)The Applicant then enrolled in the Diploma course at Wentworth on 29 March 2018 to ameliorate the breach once he had discovered he was no longer enrolled in the MBA course.
At the hearing before the Tribunal, the Applicant gave evidence that was largely consistent with what he had expressed to the delegate in his NOICC. However, he sought to elaborate further his claim of suffering stress and depression and his need to return to India as arising from the ill-health of his grandfather. He stated that his grandfather had been admitted to hospital from 21 to 24 February 2017, and subsequently readmitted from 22 to 27 March 2017. He said that this caused him depression, as he wanted to return to India but his family urged him to remain in Australia to continue studying. The Applicant told the Tribunal that he went to see a general medical practitioner while in Australia for help in relation to his depression. According to the Applicant, the medical practitioner advised him that he should not be studying due to his ‘severe depression’. Ultimately, in the course of the hearing, the Applicant sought to attribute his failure to study effectively during the breach period to his ongoing depression and anxiety.
The Tribunal invited the Applicant to produce evidence demonstrating that he had been diagnosed with severe depression or anxiety. The Tribunal was referred to annexure ‘B’ of Mr Vahora’s written submissions dated 7 October 2019. That annexure is a letter dated 27 March 2017 from Dr Shamsul Alam of Bay Healthcare. The letter certifies that the Applicant was unfit to continue studying from 27 March 2017 to 10 April 2017. The letter also refers to the fact that the Applicant had a history of anxiety and depression and that he first visited Dr Alam for treatment in February 2014.
The Tribunal made it clear to the Applicant that the focus of its inquiry related to the visa breach period from 29 August 2017 to 27 July 2018. The Tribunal drew the Applicant’s attention to the fact that Dr Alam’s letter of 27 March 2017 did not relate to this period. The Tribunal inquired of the Applicant as to whether he had any other medical evidence which was capable of demonstrating that he had ongoing depression after 10 April 2017, to which the Applicant replied that he did not.
Following the hearing, the Applicant filed the statutory declarations of Aamirsohel Dadhaliyawala and Mohin Kuskiwal who were able to verify their knowledge of the Applicant’s circumstances and described his stress and depression arising from the ill-health and eventual death of his grandfather on 1 July 2017. While the Tribunal accepts the general substance of their evidence, at least insofar as that may have been their impression of the Applicant at the time, these witnesses are not in any way qualified to offer an opinion as to whether the Applicant was suffering a clinically diagnosable mental health condition.
Regrettably, sickness of family members are unkind life stressors that everyone must deal with at some point. Non-citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.
In such circumstances, registered course providers and the Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation.[38] The National Code of Practice for Providers of Education and Training to Overseas Students 2018 (‘the National Code’) permits course providers, upon application by a student visa holder, to defer or suspend a current enrolment if there are ‘compassionate or compelling circumstances’ for doing so.[39] The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort.
[38] See in particular
[39] See National Code of Practice for Providers of Education and Training to Overseas Students 2018, Standard 9.1. The National Code was made by the Minister for Education and Training under s 33(1) of the Education Services for Overseas Students Act 2000 (Cth) on 4 September 2017.
It appears that the Applicant attempted to avail himself of these procedures while he was at Western Sydney University. However, his request for a deferral while he was studying at that university was ultimately refused because he failed to depart the country in accordance with its stipulated procedures. There is no evidence before the Tribunal showing that he attempted to avail himself of those procedures when he subsequently enrolled in the MBA at Wentworth Institute. Indeed, the Applicant does not claim that he made a similar application when enrolled in the MBA at Wentworth Institute. However, that decision on his part seems to be at odds with his claim of suffering severe depression and anxiety at this time, especially given that he was aware of the deferral application process.
In the end, the Applicant has not relied on any medical or other psychological evidence to advance the claim that he was suffering depression or anxiety, or any other kind of mental health condition, at the time he remained in continuous breach of his visa. There is no independent expert evidence before the Tribunal that could sustain such a claim. That being the case, the Tribunal has not been presented with any cogent evidence that substantiates the Applicant’s claim that he was incapable of studying at AQF Level 9 or higher for the 11-month breach period. The Tribunal is not satisfied that the Applicant was suffering a clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors. On the Applicant’s own evidence given at the hearing, he was able to engage in paid employment throughout this time. That being the case, it is the Tribunal’s view that the Applicant was also capable of continuing to study in Australia if he had chosen to prioritise his obligation to do so.
The Tribunal has also given consideration to the Applicant’s claim that he was unaware that his enrolment in the MBA course had been cancelled by Wentworth Institute on 29 August 2017, and that he did not become aware of the cancellation until February 2018. Both the Applicant and Mr Vahora attempted to draw the Tribunal’s attention to Wentworth Institute’s failure to properly notify the Applicant of its intention to cancel his enrolment in the MBA. There is clearly evidence of a dispute between the Applicant and Wentworth Institute in this regard that has been presented to the Tribunal. However, even accepting that the Applicant may not have been given proper notice, the Tribunal remained concerned as to what point in time the Applicant effectively disengaged from studying. When the Tribunal inquired of the Applicant in this respect, his answers were often non-responsive and somewhat evasive. While he maintained his position throughout the hearing that he only became aware of his enrolment being cancelled almost six months after the event, he was not able to provide any satisfactory evidence that demonstrated academic progress at Wentworth Institute in the six months leading up to that point. The Applicant claimed that he continued to study and continued to check online for his end of year results at the end of 2017. However, there were no results. That is because, in Tribunal’s view, the Applicant had not done anything by way of study progress to obtain such results. In this regard, the Tribunal rejects the Applicant’s account of his study progress at Wentworth Institute in relation to the first breach period.
In the end, it seems reasonably clear to the Tribunal that the Applicant had disengaged from studying at Wentworth Institute by the time the course provider came to cancel his enrolment on 29 August 2017. In these circumstances, it is difficult to accept that the Applicant had no idea his enrolment was likely to have been cancelled until February 2018, notwithstanding formal notice requirements may not have been complied with.
The Tribunal finds that the Applicant consciously decided to disengage from studying and that this led to Wentworth Institute cancelling his enrolment on 29 August 2017. The decision to cease studying was a voluntary decision made by the Applicant. He did not wish to study and so he chose not to. The Tribunal finds that the circumstances giving rise to the Applicant’s non-compliance with Condition 8202(2)(b) were neither extenuating nor beyond the Applicant’s control. This finding weighs significantly in favour of cancelling his visa.
Purpose of Applicant’s Stay in Australia
The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, was to study on a full-time basis. That purpose was effectively been defeated as a result of the Applicant’s decision to disengage from studying the MBA at Wentworth Institute, leading to the cancellation of his enrolment. The purpose was not restored when he enrolled in a Diploma-level course, which sits at a lower AQF level.
The Tribunal has considered the possibility that the purpose of the Applicant’s visa could potentially be restored by the Applicant undertaking to enrol in and successfully completing another Master’s course. He indicated that he would do so at the hearing before the Tribunal. The difficulty with this proposition is that the Applicant has already been afford that opportunity and has failed to provide a satisfactory reason for failing to effectively utilise that opportunity.
The Tribunal notes that student visas are, by their nature, inherently temporary. His cancelled visa would now have lapsed if it had not already been cancelled. The Tribunal does not see any utility in allowing him to stay in Australia as a student any longer. This is especially so given that he has already successfully completed a Master of Public Health at Western Sydney University which was issued on 8 April 2017. This weighs heavily in favour of cancelling his student visa.
Extent of Applicant’s Compliance with Visa Conditions
The Tribunal has given consideration to the Applicant’s compliance with other visa conditions. But for the non-compliance with Condition 8202(2)(b) that is now before the Tribunal, it appears that the Applicant has otherwise been compliant with the conditions of visas that have been issued to him. The Tribunal has given this some weight in his favour. However, given the significant period of time during which the Applicant was in continuous breach of his most recent visa, this factor does not weigh heavily in the Tribunal’s deliberations.
Hardship
The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete another Master’s degree. The Tribunal acknowledges that both the Applicant and his family will suffer some degree of psychological hardship and disappointment if his visa is cancelled and he is forced to return to India. However, he would not be returning to India with no qualifications obtained from an Australian education provider at all. The Applicant already has a a Master of Public Health obtained from Western Sydney University on 8 April 2017 which will put him in good stead in attempting to obtain employment upon his return to India.
Applicant’s Behaviour towards Department
The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.
Other Visa Holders
There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.
Legal Consequences
The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.
The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.
International Obligations
The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.
Other Relevant Matters
There do not appear to be any other relevant matters material to the outcome of the present review application.
Conclusion
In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.
DECISION
The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.
Dr Jason Harkess
Member
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