Patel (Migration)

[2019] AATA 5674

Patel (Migration) [2019] AATA 5674 (20 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jigar Bharatkumar Patel

CASE NUMBER:  1907474

HOME AFFAIRS REFERENCE(S):          BCC2019/89279

MEMBER:Damian Creedon

DATE:20 August 2019

PLACE OF DECISION:  Perth

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

Statement made on 20 August 2019 at 10:27am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – Master of Public Health – not enrolled in registered course for 12 months – enrolment cancelled – non-commencement of studies – inadvertently failed to confirm course registration – communication failure with course provider – attempted to re-enrol – credible witness – decision under review set aside

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, Clause 500.211, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of India. He seeks review of a decision dated 26 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The Applicant’s visa was granted on 9 March 2017. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.

3. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to continue to be enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 2 July 2019 and 16 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Did the applicant breach Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision.  Relevantly, condition 8202(2)(a) requires a primary student visa holder to maintain enrolment in a full-time registered course, making it clear that this is a continuing requirement.  In the delegate’s decision record, the delegate identified the period from 7 March 2018 to the 26 March 2019[1] as being the relevant period in which the applicant was not enrolled in a registered course.  This amounted to a total time of approximately 12 months when the applicant was in continuous breach of the visa.

   [1] Being the date of cancellation.

8. The delegate’s finding in this respect was 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’).[2]  It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia.

   [2] 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].

9. In this regard, the PRISMS database performs two important functions. First, it permits registered course providers to issue Confirmation of Enrolment certificates (‘COEs’) to students upon their enrolment in an approved course of study. The COE may then be used by the student when applying to the Department of Home Affairs (formerly, the Department of Immigration and Border Protection) (‘the Department’) for a student visa.  Clause 500.211 of the Regulations stipulates that a student visa can only be granted if the applicant is currently enrolled in an approved course of study.  A current COE is treated by the Department as evidence of such enrolment.

10. Secondly, the PRISMS database 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.  In particular, and of relevance to the present case, PRISMS may be used by course providers to report that they have cancelled a particular student’s COE in a course for which the student had previously been enrolled, and the reasons for making such .

11. The PRISMS report obtained by the delegate indicated that on 7 March 2018 the applicant’s educational provider at the time, Curtin University, notified the Department of Education and Training that it had cancelled his COE due to the applicant’s non-commencement of studies. In his oral evidence to the Tribunal, the applicant conceded that his enrolment in a registered course of study had ceased and that he did not enrol in any further course of study by the time the delegate had come to decide to cancel his visa on 26 March 2019.

12. Accordingly, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the applicant was in breach of condition 8202(2) of his visa.

    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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    Background

14. The applicant is a 24-year-old Indian national who first arrived in Australia on 15 March 2017 2017 as the holder of a Student (subclass 500) visa.

15. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since his arrival in Australia he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
English Language Bridging (ELB) Course	15/03/2017	14/07/2017
English Language Bridging (ELB) Course	11/09/2017	17/11/2017

1. PRISMS also records that the applicant was scheduled to undertake the following study pathway, which was cancelled on 7 March 2018 for non-commencement of studies:

Course Name	Scheduled Commencement	Scheduled Completion
Graduate Diploma in Public Health	16/02/2018	15/12/2018
Master of Public Health	18/02/2019	15/12/2020

1. The applicant stated in evidence to the Tribunal that, before coming to Australia, he completed a Bachelor of Science in his home country, majoring in Chemistry.

   Circumstances in which the ground of cancellation arose.

2. In his evidence to the Tribunal given on 2 July 2019, the applicant stated that after his arrival onshore he successfully completed two English language bridging courses between 15 March 2017 and 17 November 2017.  He stated that at the conclusion of the 2017 academic year he travelled to India for a scheduled holiday before returning to Perth on 4 February 2018.   The applicant stated to the effect that upon his return to Australia from India he had difficulty ‘enrolling’, or ‘registering’ for his course.  When pressed by the Tribunal, the applicant stated that the ‘difficulty’ was the result of his failure to provide information correctly and that that was why his intake to the course was ‘delayed’. 

3. When pressed by the Tribunal as to what steps he took to correct the error once it became apparent, the applicant stated that when he ‘went to Curtin University to sort it out’ he was told by the international student advisers there to ‘reapply’.  He stated that he went through the process of seeking assistance a number of times, but was told the same thing – to ‘reapply’.  The applicant stated that as he had missed out on the ‘first intake’ of his course in February 2018 and that he took the advice he received from the university and reapplied in July for entry in the second semester of 2018.  The Tribunal asked the applicant whether he had documentary evidence of his correspondence with the university and he said that he did.  The Tribunal resolved to allow the applicant an adjournment of 14 days to allow him to provide copies of these documents to the Tribunal. 

4. On 9 July 2019 the applicant provided copies of the following documents to the Tribunal:

   a.Email from the applicant to Curtin University dated 29 March 2018 with the subject line ‘Case no 1907474 jigar patel [sic]’ (First Email);

   b.Email from the applicant to Curtin University dated 30 July 2018 with the subject line ‘Emailing GSAF-FORM-CURTIN-UNIVERSITY-2.pdf’ attaching a Curtin University pro forma document entitled ‘Genuine Student Assessment Form’ and containing the applicants personal details (Second Email);

   c.Email from Curtin University to the applicant dated 6 August 2018 with the subject line ‘Curtin University : Pending Application - 185749 - Patel - Acknowledgement Email’ (Third Email); and

   d.Email from Curtin University to the applicant dated 25 August 2018 with the subject line ‘GTE Outcome’ (Fourth Email).

5. The applicant’s hearing resumed on 16 August 2019 where the emails were discussed.  The Tribunal makes the following findings in respect of them: 

   a.The First Email is an acknowledgement from Curtin University of the applicant having made an enquiry with the university on or around 29 March 2018 in respect of his enrolment.  The Tribunal accepts it as evidence of such an enquiry having been made. 

   b.The Second Email is a submission by the applicant to Curtin University of his ‘GSAF Form’ in support of his application for entry to a Graduate Diploma in Public Health in Semester 2 of 2018; the Third Email is an acknowledgement from Curtin University of having received the application.  In analysing the ‘GSAF Form’ attached to the Second Email, it is apparent to the Tribunal that it has not been completed with the requisite attention to detail.  The applicant acknowledged this in his evidence to the Tribunal.  Notwithstanding this, the Tribunal accepts these emails as evidence that the applicant made an application to Curtin University for entry to a Graduate Diploma in Public Health in Semester 2 of 2018.

   c.The Fourth Email informs the applicant of the outcome of his application and is in the following terms:[3]

   Thank you for applying the Graduate Diploma in Public Health program at Curtin University. Curtin University takes apart in Australia's Simplified Student Visa Framework (SSVF) and is therefore required to put strategies in place to ensure Genuine Temporary Entrants (GTE) are recruited into the University. This assessment includes determining whether a potential student is a Genuine Student (GS), a GTE and have genuine access to funds whilst studying at Curtin University and living in Australia according to Department of Immigration and Border Protection (DIBP) Guidelines.

   Based on your application we are not satisfied that you meet the DIBP GTE requirements because of the following reasons :

   ·You could not provide valid reasons for undertaking the proposed course at Curtin University. You were not clear regarding the course contents and the chosen University.

   ·You could not communicate in English and preferred speaking in Gujarati language.

   As such we are unable to proceed with your application to study at Curtin University - Western Australian Campuses.

   [3] Hyperlinks removed.

6. The Tribunal accepts this email as evidence of the reasons for Curtin University’s rejection of the applicant’s application, not as evidence of the truth of the statements made therein. 

7. The applicant’s evidence to the Tribunal is that upon receipt of the Fourth Email he made no further attempts to enrol in a course of study either at Curtin University, or at all.  He stated that upon receipt of the Fourth Email he realised that he was in breach of his visa conditions, and was ‘confused about what to do’ and ‘in depression’.

8. In summary, it is apparent from his PRISMS record that the applicant was enrolled in a Graduate Diploma in Public Health to commence on 16 February 2018.  He claims that as a result of his travel to India between December 2017 and February 2018 he failed to take a necessary step to confirm his registration before the commencement of the course, resulting in its cancellation on 7 March 2018.  The Tribunal accepts this argument, as there is no evidence to suggest that the applicant would not otherwise have commenced his course as scheduled; indeed he appears to have had every incentive to do so.  It also appears from his evidence that the only recommendation he received from his course provider to rectify the situation was to ‘reapply’ which, from the documentary evidence he has provided, he attempted to do, ultimately unsuccessfully.  Whether there were further or other steps he could have taken, and whether matters could have been better managed, particularly in respect of his dealings with his course provider, is a matter of conjecture with the benefit of hindsight. 

9. Overall, the Tribunal is persuaded that the circumstances that the applicant found himself in were not brought about through intentional or reckless behaviour on his part, and that he acted reasonably in dealing with them as they manifested, at least until his receipt of the Fourth Email.   The Tribunal places less weight on this factor in the applicant’s favour than it otherwise would, as matters were only brought to a head by the cancellation of his visa rather than any proactive step on his part.  Nonetheless, it places some weight on them in his favour.

   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

10. The applicant’s evidence to the Tribunal is that he wishes to continue with his studies in Public Health in Australia.  When asked by the Tribunal whether he could continue his studies in this area in India, the applicant stated that he could, however there are ‘certain subjects’ that he would not be able to study in India.  When pressed on this by the Tribunal, the applicant’s evidence was, in essence, that an Australian qualification would be more valuable to him in his future endeavours.  When asked by the Tribunal what those endeavours are, the applicant’s stated that he wishes to work in the public health industry in India in either the public or private sector.  The applicant’s evidence to the Tribunal was that he had obtained a Bachelor of Science (Chemistry) in India before coming to Australia and that he wished to enhance his career opportunities and build on his degree by obtaining an international qualification.

11. The Tribunal does not regard this as a “compelling” need, though it does disclose a reasonable motive.  In all of the circumstances, however, the Tribunal does not weigh this factor in the applicant’s favour.

    The extent of compliance with visa conditions

12. The applicant was responsible for a breach pertaining to his visa.  His visa was granted in March 2017 and, despite completing some of his studies, his course and his student visa were cancelled.  Ultimately it is for the applicant to take personal responsibility for managing his course requirements and visa obligations.  In all of the circumstances, however, the Tribunal gives less weight in this instance to cancelling his visa on account of the applicant’s particular circumstances in his dealings with his course provider.

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

13. The Tribunal accepts that the applicant has invested financial resources in furthering his education in Australia, however he cited no particular hardships in his evidence to the Tribunal should his visa be cancelled, other than that he would fall behind his peer group in his study level and career aspirations. 

14. In the giving of his evidence the applicant presented as an honest, though passive young man, but with an increased awareness of the necessity to take personal responsibility for his compliance with his visa obligations while studying in Australia.  He presented his evidence factually, with an emphasis on explaining his study circumstances in Australia rather than dwelling upon the emotional, financial or psychological hardships he has likely experienced.

15. In all of the circumstances the Tribunal does not weigh this factor either in favour of or against the applicant.

    Past and present behaviour of the visa holder towards the department

16. The delegate noted the following in his decision record:

    [The applicant] has been cooperative in his dealings with the Department.  Therefore, I give this consideration some weight in his favour.

17. The Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on 26 February 2019.  The delegate’s decision record notes, and the applicant confirmed in sworn testimony to the Tribunal, that he did not respond to the NOICC.  The applicant’s reason for not responding was that he did not receive the NOICC as he did not update his postal address to the Department.

18. In the context of the whole of the evidence, including the manner of the applicant’s presentation before the Tribunal, the Tribunal places the same weigh on this factor as the delegate.

    Whether there would be consequential cancellations under s.140

19. There are no consequential cancellations under s.140; accordingly the Tribunal places no weight on this factor in the applicant’s favour.

    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

20. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

21. There is nothing to indicate the applicant would not be able to return to India.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    Whether any international obligations would be breached as a result of the cancellation

22. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Conclusion

23. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of his visa.  However, the Tribunal has found that, on balance, the circumstances in which the breach occurred were not the result of the applicant’s recklessness or indifference to his responsibilities, but as a result of a failure of communication between the applicant and his course provider.  The applicant has accepted responsibility for this failure and resolved ‘not repeat [his] mistakes again’.  It appears from the available evidence that the applicant acted reasonably in accepting the advice he received from his course provider and in attempting to obtain re-enrol in his course for Semester 2 of 2018.   The Tribunal places weight on this factor in his favour and, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

   Damian Creedon
   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.