Patel (Migration)

[2020] AATA 1114

Patel (Migration) [2020] AATA 1114 (17 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs. Rucha Jagatkumar Patel
Mr. Jagatkumar Jagdishchandra Patel

CASE NUMBER:  1922406

HOME AFFAIRS REFERENCE(S):          BCC2019/2603616

MEMBER:P. Adami

DATE:17 January 2020

PLACE OF DECISION:  Melbourne, Victoria

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 17 January 2020 at 11:28am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – limited academic progress – applicant changed education providers – family medical issues – near completion of Master’s degree – recognition of prior learning delayed – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 August 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 failed to maintain enrolment in a registered course in breach of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations). 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 primary applicant (the applicant) appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent, Mr. Amrit Jagota.

5. The Tribunal is mindful that the applicant is not required to establish that the facts or grounds for cancellation do not exist, but the Tribunal must be satisfied that the facts or grounds for cancellation do exist. In Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 the Full Court of the Federal Court of Australia at [25] stated, “The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.” Further at [32], the Full Court stated, “A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The decision-maker must ultimately be satisfied that the ground for cancellation is established.”

6. 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

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

8. The Tribunal has reviewed and considered:

   a.The Department’s Decision Record dated 6 August 2019;

   b.Offer and Acceptance Agreement from Holmes Institute dated 13 January 2020;

   c.Applicant’s Submission in support of her application dated 13 January 2020;

   d.Academic Transcript from University of Western Sydney dated 29 October 2015.

   Did the applicant comply with Condition 8202?

9. 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(2)(c)(ii).

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

11. In the submission filed on behalf of the applicant, the applicant states, “It is acknowledged that the ground for cancellation arose as a result of the applicant ceasing enrolment from 18 August 2018.” At the hearing, the applicant also agreed that she was not enrolled from 8 August 2018 to at least the date of her visa cancellation on 6 August 2019.

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

    Consideration of the discretion to cancel the visa

13. 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 Procedural Instruction ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and study in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

14. The applicant in her 13 January 2020 submission states that she travelled to Australia in 2013 along with her husband to study at the University of Western Sydney (UWS), in the Master of Professional Accounting (Advanced) program. The applicant states that she passed 2 subjects but failed the third subject.

15. The applicant continued with her enrolment at UWS “but could not cope with the study pressure. Ms. Patel [the applicant] felt that her classmates used to make fun of her that she will not be able to pass her course and eventually she used to feel low on morale.” The applicant states that her husband (a secondary applicant) was hospitalised with sleeping malaria which saw him recover at home over 2-3 months, and involved hospital visits every 2-3 weeks for check-ups. The applicant herself was diagnosed with low iron at this time.

16. The secondary applicant fractured his right wrist, which saw the primary applicant having to study at the same time as assisting the secondary applicant recover from his wrist injury. The applicant is described as “not coping with the studies at UWS”, and she transferred to Kings Own Institute (KOI) to undertake the Master of Professional Accounting, for which she obtained 2 credits for prior completed study. The applicant’s Academic Transcript from UWS which was filed with the Tribunal is a poor record of academic achievement.

17. Notwithstanding the poor record from UWS, the applicant submits that she has completed 15 of the 16 subjects necessary to finish the Master’s degree. According to the delegate in their 6 August 2019 decision, the applicant has failed the final subject of Auditing on four occasions. The failures increased the applicant’s anxiety as she failed to complete the subject, and the applicant met with the Dean of KOI and spoke to a Student Councillor in an effort to ensure successful completion of the Auditing subject. The applicant failed Auditing by a few marks, and KOI refused to give the applicant a further Confirmation of enrolment (COE), to complete the necessary subject.

18. The applicant sought the assistance of her former educational consultant, but she had left the particular business that the applicant had engaged earlier. The applicant spoke to the new owner who said that he could help the applicant, however, the applicant told the Tribunal that the new owner was difficult to get hold of, and was generally unhelpful despite having paid him for his professional assistance. Ultimately, the applicant obtained entry into Torrens University, who required the applicant to completed a further 2 or 3 subjects to obtain her degree, and did not offer to give credit for each of the successfully completed prior subjects. When the applicant attended the university she was informed that she needed to complete all the subjects in the course, and that she would not receive any credits for her prior learning.

19. The applicant contacted her prior consultants, who in turn contacted Torrens University in an effort to resolve the issue as to what subjects were needed to be completed in order to earn the degree. However, Torrens University would not deal with the first education consultant because she was not the then authorised consultant.

20. In September 2018, KOI emailed the applicant and offered her exit award eligibility for the Graduate Certificate in Business, if she wanted to accept this given her prior completed studies. This was not accepted by the applicant who was keen to obtain the Master’s degree. In October 2018, the applicant engaged another education consultant, who advised her that given the gap in her studies, she should enrol in an English course in the meantime that they were looking to resolve finding an accepting course provider. The applicant completed an English course at Group Colleges Australia (GCA) in August 2019.

21. The applicant sought enrolment at Central Queensland University, Kaplan, and Holmes Institute. Eventually, on 13 January 2020, the applicant obtained advice from Holmes Institute that they would admit the applicant and offer her credit for the satisfactory completed prior learning that she had undertaken.

22. The applicant stated to the Tribunal that she required only one final chance to complete her degree. The applicant explained that at the time she became nervous/anxious having failed the Auditing subject on the earlier occasions, that is, it became harder to pass given the earlier failures. When asked about how this would change, the applicant stated the new environment and new professor would assist, and that she would seek help from friends to ensure she passed. The applicant explained that she got stuck, and could not understand what was happening with herself, essentially explaining to the Tribunal that she got in a rut, which made her feel she should run away somewhere.

23. The Tribunal accepts the applicant’s evidence that her purpose for travel was to study in Australia, that she has a genuine desire to complete the Master’s degree, and that she and her husband will return home, with the applicant having obtained a useful and reputable qualification. Further, the Tribunal accepts that she has a compelling need to remain in Australia in order to complete her course having gotten so close to finishing the course. The Tribunal gives this factor some weight in favour of the applicant against cancelling her visa.

    The extent of compliance with visa conditions

24. There is no evidence before the Tribunal that the applicant has breached other conditions of her visa. The Tribunal expects that a visa holder will generally adhere to the conditions imposed on them, and the Tribunal is mindful of the significance of the breach of condition 8202. The Tribunal gives minimal weight in favour of the applicant that there are no additional breaches of visa conditions.

    The degree of hardship that might be caused (financial, psychological, emotional or other hardship)

25. The applicant in her submissions states that she obtained a loan from the Punjab National Bank India to pay for her education cost in Australia. This loan was secured against the family home. This was submitted in part, as one of the ways hardship would be visited upon her and her family. That is, to put it colloquially, the money will have been wasted to get so close to finishing her studies, but failing at the final hurdle.

26. The hardship was also put on the basis of being considered a failure returning home without the Master’s degree. The applicant told the tribunal that she intends to return home to Gujarat once she completes her studies, or she may seek some work experience in Australia and then return to her home country. The applicant did not state an intention to remain indefinitely in Australia, or also seek to apply so as to be able to remain indefinitely in Australia.

27. Given the near completion of the Master’s degree, and the applicant’s intention to return home, the Tribunal considers that some weight to this factor ought to be given against cancelling the applicant’s visa.

    Circumstances in which the grounds for cancellation arose- whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

28. As set out above, the applicant failed to pass the Auditing subject. Once she had failed the subject a number of times the applicant told the Tribunal that she felt down about her prospects of passing the necessary subject. The applicant then sought to find another institution that would take her, and that would give the applicant credits for her successfully completed prior learning. This proved difficult to find, but the applicant now has this opportunity at Holmes Institute.

29. Combined with her husband’s health concerns, the Tribunal accepts that the applicant was impacted by her husband’s health and her failed attempts at passing the Auditing subject. Whilst it may be fairly said that the applicant was obliged to ensure her visa status was in order, the Tribunal considers this is mitigated by the surrounding circumstances impacting the applicant. The Tribunal gives this factor some weight in favour of the applicant’s visa being cancelled, but less than might be the case, because although the applicant did not pursue professional assistance in regards to the mental health impact of the surrounding circumstances impacting on her, the Tribunal accepts that the applicant was impacted as she claimed.

    Past and present behaviour of the applicant towards the department

30. The applicant completed her response to the NOICC on 9 July 2019. The applicant was cooperative in her dealings with the Tribunal. No adverse information has been provided to the Tribunal. The Tribunal gives this some weight in the applicant’s favour not to cancel her visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140

31. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s140 of the Migration Act 1958. The Tribunal places no weight on this factor in the applicant’s favour.

    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

32. There is no information before the Tribunal that this application raises any questions of Australia’s international obligations, and the Tribunal gives this factor no weight in the applicant’s favour.

    Any other relevant matters

33. Mr. Jagota on behalf of the applicant submitted that the applicant should be given a final chance to pass her final subject, in order to complete her Master’s degree, and otherwise relied on the 13 January 2020 submission and the oral evidence given at the hearing.

34. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled, and the applicant ought to be given a final opportunity to complete her Master’s degree course and to then return to her home country.

35. Considering the applicant’s circumstances and the factors listed above as a whole, the Tribunal concludes that the breach of condition 8202 is outweighed by the circumstances that lead to the breach and the effect of such breach. As such, the Tribunal concludes that the applicant’s visa should not be cancelled.

    DECISION

36. 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.

    P. Adami
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)     The holder must be enrolled in 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.