Patel (Migration)

[2020] AATA 1697

Patel (Migration) [2020] AATA 1697 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sopan Kamleshbhai Patel
Mrs Heemaben Shirisbhai Patel

CASE NUMBER:  1902732

HOME AFFAIRS REFERENCE(S):          BCC2018/5378219

MEMBER:Genevieve Cleary

DATE:20 February 2020

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 20 February 2020 at 2:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) –not enrolled in registered course – father’s illness and applicant’s return to care for him – marriage and cost of living as couple in Australia – stress and study results – non-payment of fees and cancellation of enrolment – enrolment in lower-level course and intention to progress to original level – father’s recovery and provision of funds – intention to return to home country when study completed – decision under review set aside for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 February 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant has not been enrolled in a registered course since 23 February 2018.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 24 June 2019 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

6. Prior to the hearing, the applicants provided to Tribunal:

   ·     The Decision Record of the delegate of the Department;

   ·     Written submissions;

   ·     A loan document for 20 Lacs dated 6 September 2017 addressed to the primary applicant’s father;

   ·     Receipts and other medical documents relating to the primary applicant’s father, and 

   ·     A medical report dated 13 May 2018.

7. The Tribunal has also had regard to the Department file.

8. 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

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

   Did the applicant comply with Condition 8202?

10. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

    ·be enrolled in a full time registered course: 8202(2)(a)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(c)(ii).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

12. While the applicant provided to the Tribunal a signed letter of offer and acceptance dated 15 March 2019 from Perth College of Business and Technology for a Diploma of Leadership and Management, he agreed that until that time he had not been enrolled in a registered course since 23 February 2018. 

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course at the relevant time. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

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

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

1. The applicant came to Australia to study a Masters of Electrical Engineering. He had already achieved a Bachelor of Electrical Engineering in his home country, India.  He wanted a masters degree because it was the next step in his qualifications.  He chose Australia because he felt Australia’s universities are the best in the world, and Edith Cowan University would be the best way to finish his qualifications.  He also felt that if he stayed in India he would not achieve a qualification that had world-wide recognition, enabling him to be able to apply for jobs around the world, not just in India. 

2. The applicant told the Tribunal that if he gets the chance he would also like to work in Australia to solidify the knowledge he will gain from the university degree.  Providing he at that time obtains the correct visa, this course of conduct is a part of a recognised Australian visa regime.

3. Wanting to study and gain a qualification in a course, including gaining work experience using skills gained in a university qualification in Australia is a reasonable desire for someone from another country. The Tribunal has set out elsewhere in these reasons the course of the applicant’s study. The Tribunal is satisfied that the applicant genuinely wishes to complete his masters degree, despite the fact that he is currently enrolled in a Diploma of Leadership and Management, and that that masters builds on the degree he already has.

4. The Tribunal is satisfied that the applicant had a compelling reason for wanting to travel to and study in Australia, and that reason extends to his remaining in Australia to complete his university masters degree. The Tribunal therefore accepts that the applicant has a compelling reason for remaining in Australia to complete his studies, should the Visa not be cancelled and the Tribunal gives this factor some weight in not cancelling.

Circumstances in which the 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

1. The applicant arrived in Australia in December 2014, on his own.  He commenced a required English course, completing it but the not sufficiently for university entry.  He had to defer the masters degree, and he re-did the English course, satisfying the requirements, enabling him to commence the masters. However, at that time, in about February 2016, he found out that his father was ill with problems with his heart and blood pressure.  In April 2016 he returned home to help care for him. The applicant has a brother but he was also away studying, medicine.  At the same time while he was in India, he got married. He remained in India for 22 days.

2. The Tribunal notes that the applicant seemed to find it difficult to describe what he had to do to look after his father.  Eventually he said that he took him to medical appointments, sat with him, talked to him and  gave him sympathy.  He also spoke to his mother and told her not to worry.  He spoke to his father’s doctors and they told him to avoid his father getting stressed if he could.  They said he should not work and the applicant reminded his father about this. 

3. His father is an accountant in a government run energy company, however because of his illness he had taken leave while the applicant was in India.

4. When he could the applicant came back to Australia because his goal was to return to study.  He was supposed to start the deferred masters course in June/July 2016.  He arrived back in early May 2016, however he told the Tribunal he could not concentrate. He had left his wife and sick father in India and this worried him.  He commenced the masters course, passing subjects, but some of them barely. He also failed some.  In September of 2016 his mother told him that his father’s situation was critical.  He was reported to be under stress and had been hospitalised for 3 or 4 days.  Although his father then recovered a bit, the applicant agreed to return to India during the university break.  The applicant was also under pressure from his family to have a formal wedding ceremony and he agreed to do that upon his return as well. He returned to India in early January 2017, staying until 22 February 2017, when he returned to Australia.

5. Then he recommenced his studies, having to commence new subjects while still having subjects that he had failed to be completed at a later time. He felt that the second semester was going well for the first 2 months but then it did not go well.  The applicant’s wife had joined him, and while before she arrived he lived with other students relatively frugally, when she arrived they moved to their own premises, thus adding to the cost of being in Australia. His wife took some time to find a job and he found the expense of looking after her stressful, and he continued to worry about his father.  He could not focus on his studies and he failed more units. In the third semester of the masters course he passed 2 units and failed 2. 

6. In December 2017 he returned to India for his cousin’s marriage and to visit his father.  At that time his father was 70% recovered.  He returned to Australia in late December 2017.  He wanted to study seriously then, however there had been a budget set for him by his family for 3 years, and it was dwindling.  His father needed some time to pay fees for him and his brother, who was studying in the Philippines. He knew that he had spent his budgeted money.  The applicant had been working on a part time basis however the income was still not sufficient to support his fees and other study requirements, and his wife.  His father had gone back to work, even though he was still ill, as the family felt they had no option with 2 sons studying overseas. Once his wife found a job they found their financial situation improved, however still not sufficiently to cover university fees.

7. The bank loan evidenced by the letter to the applicant’s father dated 3 June 2017 had already been spent on the applicant’s past enrolments.  There was also an element of worry for the applicant that if his father found out he was failing, his father would be under more stress.

8. The applicant was supposed to start his 4^th semester in 2018 but could not pay his fees, and missed the census date. He could not enrol.  The applicant remained stressed but determined to complete his masters course in Australia. In order to successfully complete his course when he returned to it he tried to maintain his English, studying at home and eventually increasing his previous test scores when he completed a further test.  Because of the lack of funds, he could not enrol in the masters course in the second semester of 2018 either and he decided to wait until February 2019, however, in the meantime his Confirmation of Enrolment was cancelled.

9. The applicant told the Tribunal that he remained in Australia, despite the fact that he was not studying, in order to raise his own funds from alternative sources to enable him to reenrol.  He continued to work and attempted to save funds.

10. The applicant’s enrolment was cancelled on 23 February 2018, and his Student visa was cancelled on 5 February 2019.  The applicant said that he panicked when he received the Notice of Intention to Consider Cancellation, as he had hoped that at some point he could just re-enrol and continue his studies. He also felt that the time within which he was to respond was very short, and this also caused him stress.

11. The applicant provided to the Tribunal before the hearing a medical report dated 13 May 2018 relating to his father. The applicant agreed at the hearing before the Tribunal that the report is difficult to understand, but he said he asked his brother, who is studying to be a doctor, and it was his brother who told him that the report said that his father had recovered. The Tribunal accepts that explanation of the contents of the document.

12. Therefore, the Tribunal accepts that his father appears to have recovered from his medical problems in about May 2018.  The applicant said that this has in turn made the applicant feel stronger and ready again for study. In addition, his uncle and father have agreed that they will together fund the applicant’s study. Consequently he enrolled in a Diploma of Leadership and Management at Perth College of Business and Technology, which his Bridging visa allows him to do. At the time of the hearing in June 2019 he had finished 2 units already.  Should he be granted a further Student visa, the applicant said that he will apply again to a university to complete the Masters in Engineering. 

13. The applicant said that he himself had not sought medical or other assistance for his stress.  When his wife came to Australia she looked after him.

14. The applicant enrolled in the Diploma of Leadership and Management in March 2019.  He says that this is a pathway back to the masters course for him, in that it maintains his interest in study, and his English skills to do so.  He also felt that such a qualification would assist him when he returns to India as it is quite possible that eventually he will open his own engineering business. This course will be completed in April 2020.  It is to the applicant’s credit that he sought to continue studies even though his visa had been cancelled. It is also understandable that the applicant would have wished to enrol in a college course that is relatively inexpensive, as opposed to a university course, on the basis that his visa may have remained cancelled, despite the Tribunal review, and he may have been forced to abandon the course and leave the country.  Therefore, the Tribunal accepts that in this case the applicant’s enrolment in a level of course lower than the level for which he originally came to Australia is reasonable, and shows that he is genuine in his desire to complete his studies in Australia.  This is the reason, in part, why the Tribunal has found that the applicant has a compelling reason to remain in Australia.

15. The applicant’s current state of study can also be given weight in an assessment of whether the cancellation in his previous enrolment occurred  because of circumstances beyond his control; the fact that he has continued to study, and study a course for a particular reason, which is reasonable, suggests that had he had the chance, he would have been closer to completing the masters course, or even finished it, by now.

16. The Tribunal has considered all of the evidence provided as to what lead to the applicant’s enrolment, and then his Student visa, being cancelled. The Tribunal accepts that the circumstances as explained are genuine and the applicant has spoken truthfully about his parents’ financial and medical struggles, and his own. While he did struggle, first in English, and then in his subjects generally, at least once he was studying the masters, he was worried about his father, and the finances were dwindling.  His struggles in English in the beginning are not to be held against him to any great degree; the Tribunal accepts that it is difficult for a student, having studied in their own language, to then learn and study in another language, particularly to a standard required by a masters level university education. The Tribunal accepts that the circumstances were beyond the applicant’s control, although the applicant accepted that by not responding to the Notice of Intention to Consider Cancellation or alerting the Department to his difficulties, he has made matters more difficult for himself.

17. The Tribunal gives some weight in favour of the applicant and not cancelling the visa given the evidence he has given, and the fact that he has continued to study, when he could again afford to, despite his visa being cancelled.

The extent of compliance with visa conditions

1. There is nothing before the Tribunal to suggest that the applicant has not complied with other conditions on his visa. However the Tribunal expects Visa holders will comply with conditions on their visa and no weight can be given in favour of the applicant not cancelling the visa.

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

1. The applicant is concerned that if the visa is cancelled, and he must return to India, his return will place extra stress on his father and on the family finances. The Tribunal appreciates that a cancellation of a Student visa, especially after some study has been undertaken, would be disappointing and cause a degree of financial and emotional hardship for the applicant and those close to them. The Tribunal also accepts that in this case there may be added stress to the applicant’s family, given his father’s past medical condition. 

2. The Tribunal also appreciates that without the masters degree the applicant will not be as competitive as he would otherwise be in India.

3. The Tribunal gives minimal weight to these factors in the use of its discretion in not cancelling the visa as they are a natural consequence of a visa cancellation.

Past and present behaviour of the visa holder towards the Department

1. The  applicant did not respond to the Department when sent the Notice of Intention to Consider Cancellation. Neither did the applicant inform the department when he was having difficulties paying his fees and became aware that his enrolment had been cancelled, or was struggling because of his father’s medical condition. There is otherwise nothing to suggest that the applicant has not replied to the Department or the Tribunal when otherwise required in a timely and courteous manner, or that he has not behaved appropriately. 

2. Accordingly, the Tribunal cannot place weight on his past and present behaviour, one way or the other, in determining whether, in its discretion, the visa should be cancelled.

Whether there would be consequential cancellations under s.140

1. The applicant’s wife was granted a secondary Student visa on the basis of being a member of the family unit of the applicant, who is the primary visa holder. There is no information before the Tribunal that suggests that the applicant’s wife has applied for a visa independent of the primary visa holder, or that the applicant’s wife has ceased to be a member of the applicant’s family unit.  If the Tribunal decides to cancel the applicant’s Student visa, this will result in the automatic consequential cancellation by operation of the law under s 140 of the Act of the secondary visa of the applicant’s wife.  This will mean that the family unit will not be split as a result of the cancellation, and this can be given some weight in support of the visa being cancelled.

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

1. If the Student visa is cancelled the applicant will become an unlawful non-citizen.  He will also incur a penalty in that if he lodges a new visa application that requires the applicant to meet the Public Interest Criterion 4013, then that application may not be approved within the next 3 years. He would also be precluded from applying for certain visas onshore. He will have limited options for applying for further visas in Australia and he and his wife may be required to return to their country of origin. 

2. There is no evidence indefinite detention is a possible consequence of the cancellation. 

3. The Tribunal gives this limited weight in the visa holder’s favour, as these are the consequences intended for a breach of Australia’s immigration laws.

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

1. The applicant has not outlined any reasons why he is unable to return to India and complete his studies. The Tribunal therefore gives no weight to this consideration in favour of the applicant and not cancelling the visa.

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

1. This is not relevant and I give it no weight.

Any other relevant matters.

1. There are no other relevant matters to consider.

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

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicant.

   Genevieve Cleary
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)  The holder must be enrolled in a a full-time course of study or training if the holder is:

   (a)a Defence student; or

   (b)a Foreign Affairs student; or

   (c) a secondary exchange student.

   (2)A holder not covered by subclause (1):

   (a)must be enrolled in a full‑time registered course; and

   (b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)changes their enrolment to a course at the Australian Qualifications Framework level 9.