Patel (Migration)

[2019] AATA 4922

Patel (Migration) [2019] AATA 4922 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shrijil Jineshkumar Patel

CASE NUMBER:  1803122

HOME AFFAIRS REFERENCE(S):           BCC2017/3896533

MEMBER:Brendan Darcy

DATE:11 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 July 2019 at 3:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Bachelor of Engineering – not enrolled in registered course – enrolments cancelled – unsatisfactory course progress – non-payment of fees – mental health issues – young age – family illness – action taken to defer studies – compassionate or compelling reasons – circumstances beyond applicant’s control – motivated to advance studies – genuine student – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), r 1.40A, cls 573.223, 573.231, Conditions 8202, 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had breach r.573.321 and condition 8516 imposed on his student visa. 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. The applicant first appeared before the Tribunal on 4 June 2019 to give evidence and present arguments.

4. The applicant, a citizen of the Republic of India, appeared before the Tribunal at a resumed hearing on 14 June 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(b)(1). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 was attached to the applicant’s visa. This condition required the visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

9. The applicant was granted a student visa on 2 September 2013 with condition 8516 attached. The student visa was expected to expire on 18 August 2018.

10. At the time of the granting of the student visa, the delegate was satisfied that the applicant met the requirements of subclauses 573.231 or 573.223(IA).  These clauses require the applicant to be enrolled in a bachelor or master degree course or enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A.

11. The Tribunal discussed with the applicant that condition 8516 is typically imposed on student visas when student visa applications are assessed under a streamlined visa processing arrangements with participating education providers. As a beneficiary of these arrangements, student visas are granted based on the bases of the visa holders having met lower thresholds of proof regarding their education history, English language ability and financial capacity.  If the visa holders change coursework to lower diploma-level coursework while enrolled in degree level coursework or enrol into non-streamlined education providers, the visa holders may be at a breach of condition 8516. 

12. The applicant informed that the Tribunal that in his student visa application, his year 12 equivalent results were lower than the usual threshold.

13. According to the applicant during the first hearing, he initially enrolled at Swinburne University in the State of Victoria in an English language course, foundational studies, a Diploma of Engineering and Bachelor of Civil Engineering.

14. The applicant provide oral evidence that he changed enrolments at various times; first at Swinburne University as he failed to commence semesters in a timely manner; then he enrolled at Melbourne Polytechnic in a Bachelor of Civil Engineering which he did not complete; and then at same educational provider in a Diploma of Engineering in 2017.

15. It was also discussed that the decision record indicates the applicant was further contacted by a departmental official by issuing the Notice of Intention to Consider Cancellation (NOICC) on 1 December 2017; and to respond within five working days. On 18 December 2017 and 21 January 2018, the applicant responded to the NOICC in writing and did not dispute that he had breached condition 8202. The applicant submitted a copy of a Confirmation of Enrolment (CoE) in English language dated 27 August 2017 and a letter of offer dated 8 December 2017 for a Bachelor of Business. On 31 January 2018, the delegate notified the applying of its decision to proceed to cancel his visa with written reasons.

16. The applicant acknowledged and did not dispute his non-compliance with condition 8516.

17. Under the Act’s 359AA provisions, the Tribunal provided the applicant and his representative specific information to address that had been outlined in the Provider Registration and International Student Management Systems (PRISMS) record dated 3 June 2019 pertaining to the applicant.

18. The Tribunal said the information lists the applicant’s various courses he had been enrolled since his arrival in Australia; the dates of non-enrolment and the reason for the non-enrolment. The information indicated the Tribunal indicated that had not been enrolled in a Bachelor degree since 31 July 2017 and that the applicant has not completed any English language coursework, Diploma, Advance Diploma or Bachelor level coursework at all (contrary to the applicant’s earlier oral claim) and the enrolments were variously cancelled on the grounds for unsatisfactory course progress and non-payment of fees. It also indicated that the applicant had been in breach of conditions 8202(2).

19. Furthermore the information in the PRISMS record indicates that as the applicant was no longer enrolled in a bachelor’s degree or a master’s degree courses since at least 31 July 2017 – until the date of cancellation - which was required under subclauses 573.223(1A) or 573.231. Then the applicant was non-compliant with condition 8516.

20. On 9 June 2019, the applicant’s representative submitted a statement about the applicant’s enrolment and academic history. There is no indication in that statement that the applicant disputes his non-compliance with condition 8516.

21. At the resumed hearing, the applicant did not dispute his non-compliance with condition 8516. (He did however provide evidence that he completed an ELICOS or English language coursework from Swinburne University).

22. The applicant was provided with post hearing opportunity to submit further documents and to do so by 10 July 2019. In the applicant’s statement dated 9 July 2019 and other documents the applicant did not dispute his non-compliance with condition 8516.

23. The applicant was provided with a short adjournment to consider whether to respond to this adverse information immediately or seek an adjournment. The applicant said that he wanted to response; however the Tribunal said that it was going to adjourn the hearing for another day as it would prefer the applicant provide a written response about his enrolment history and any other evidence to support the applicant’s arguments not to have the visa cancelled.

    Depending on your responses, this information would be the reasons or part of the reason to affirm the delegate’s decision to cancel your student visa as it indicates that the grounds for the cancellation were made out, and that it may indicate that lack of academic progress that the applicant did not travel to Australia for the purposes for which this visa was granted which is full time study.

24. According to the applicant’s PRISMS record and by his own admission, all the available evidence confirmed that the applicant was not meeting condition 8516 attached to his student visa as he was not maintained an enrolment in a registered course relevant to a subclass 573 visa that had been the offer of enrolment in an instrument made under r.1.40A since November 2015 and right up to the decision to cancel the student visa.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

26. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

27. The applicant’s enrolment history is relatively complex. He enrolled in a package of course work at Swinburne University which included a Bachelor of Engineering. There is only evidence that he completed an ELICOS or English language course in 2014. It appears this relatively short course had been delayed due to the granting of a suspension of studies arising from compelling and compassionate reasons. The applicant claimed it was due to homesickness and the lack of support of family and friends while in Australia. (It is noted the applicant was unable to provide any correspondence to document his application for a suspension of leave). 

28. The applicant claimed he commenced his Foundational Studies. PRISMS indicate his enrolment in May 2015 had been cancelled due to unsatisfactory academic progress. As the applicant had failed his foundational studies, this triggered the applicant’s enrolments in a Diploma and Bachelor of Engineering to be cancelled in November 2015. It is noted the applicant partially attributes to his unsatisfactory academic progress due to his depression which had been identified by a counsellor at his university.    

29. The applicant explained that he was very keen to complete a Bachelor of Engineering in Australia so he can return to India with this Australian qualification and that he would work for his uncle’s engineering business back in his home state of Gujarat in India. 

30. Nonetheless, the Tribunal can discern from the applicant’s PRISMS record that he has not attempted to enrol in unrelated courses and that he has been consistent in trying to complete his course work relevant to a degree in engineering. Based on the limited evidence before it, the Tribunal has overcome its concern about his lack of academic progress to find that the applicant travelled to Australia for the purpose of full-time studies and that he remains motivated to advance his engineering studies should this visa not be cancelled.

31. The applicant has not only breached condition 8516, he also breached condition 8202(2) which requires him to continuously maintain enrolment. As discussed in the hearings, the breach of both of these conditions is serious matters to consider in favour of having the visa remain cancelled.

32. The applicant belongs to a loving and supportive family but he fears he has wasted five years in not advancing his qualification and feared the embarrassment and stigma associated with not completing a degree. As discussed in the resumed hearing, if this visa remains cancelled and the applicant returns to India, the applicant has some advantages over other graduates as he will be able to access employment as part of his uncle’s business. The applicant also said that he feared the cancellation of his visa will affect any arranged marriage in to the future, which is a trivial factor the Tribunal places almost no weight in his favour. While the Tribunal accepts the applicant will face some challenges in returning to India if this visa continues to be cancelled, it assesses that the combined emotional, financial and psychological hardship will be significant, severe, onerous or even notable. In this regard, the Tribunal places only a small amount of weight on this factor in favour of the visa not being cancelled.

33. The Tribunal has sought explanations for the reasons the applicant had been non-compliant. The applicant claimed that his father’s deteriorating health and subsequent surgery had pre-occupied him. He claimed that these feelings of worry were compounded by feelings of loneliness, homesickness, anxiety and depressive feelings. Frankly, the applicant’s oral and written claims in this regard were vague and inarticulate and the health problems of his father – diabetes and heart troubles - were treatable and not severe.

34. There is limited but sufficient evidence that the applicant had taken actions to seek deferments or suspensions of his studies and that they were granted due to compassionate and/or compelling reasons, as outlined in the  applicant’s PRISMS document. Curiously the applicant was unable to provide any other documentary evidence to detail the reasons. While there is no strong evidence that he undertook irregular or infrequent counselling in the past, the Tribunal accepts that he had engaged medical and mental health professionals leading up to his period of non-compliance.  The Tribunal accepts the applicant has experienced some psychological difficulties while enrolled at Swinburne and the subsequent education providers. It accepts those difficulties were exacerbated by his lack of academic progress and the high expectations placed on him by his family. While the Tribunal does not accept those difficulties were significant or severe, it is mindful he arrived as a seventeen year old, lacking maturity without his parental doting supervision for the first time in his life. In this regard, the applicant’s circumstances do mostly appear beyond his control. However it still remained open to him to apply for a more suitable student visa (such as for vocational education) or to depart Australia before becoming non-compliant.

35. Once the applicant’s enrolments at Swinburne University were cancelled, the Tribunal appreciates that that the applicant did conscientiously try to maintain studies in engineering. The Tribunal concedes that condition 8516 is not a simply understood visa condition imposed on him and due to his lack of maturity failed to understand the significance of it at the age of seventeen. While it was his responsibility to remain compliant to all the conditions imposed on him, the Tribunal nonetheless accesses the applicant’s circumstances leading to his non-compliance with condition 8516 amount to a notable factor in favour of having his visa not cancelled. 

36. There is no other evidence before the Tribunal that the applicant’s behaviour has been non-compliant or otherwise deceitful or vexatious towards the Department or the Tribunal in any other visa matter. The applicant has not or is not in any significant relationship or has any dependents.  He did not claim or advance any fear of persecution or any other harm relevant to any of Australia’s international obligations  if he were to be forcible removed from Australia.

37. The Tribunal accepts the applicant will have very limited migration options as he will be prevented from lodging many valid visa applications without a Ministerial Invention request. It is likely he will be asked to depart Australia while holding a short-lived bridging visa. If he becomes unlawful, he risks being held in indefinite detention and being forcibly removed to Australia. The applicant may also be subject to re-entering this country for up to three years. The Tribunal places some weight on the mandatory legal consequences.

38. The Tribunal has also assessed that the applicant has since matured since arriving in Australia and that he is better placed to complete his studies, both emotionally and academically.

    Conclusion

39. The fact remains the most significant and serious factor in cancelling the applicant’s subclass 573 student visa is his breach of condition 8516 at the time of his visa cancelled.

40. Nonetheless, the Tribunal makes an overall favourable finding there is sufficient evidence before it that the applicant is a genuine student who will uphold the conditions on any future student visa to be granted. This based the Tribunal’s particular emphasis on its findings about the applicant’s accepted mental health and his lack of maturity partially leading to his non-compliance with condition 8516 as well as his consistent attempts to advance his engineering studies and enrolments. 

41. Accordingly the Tribunal has provided the applicant with the benefit of its doubts and finds that the correct and preferable decision given the circumstances of this case is that the visa should not be cancelled.

42. The applicant should be aware that this decision was reached only marginally in his favour.

43. The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, neither Subclass 572 nor Subclass 573 visas are available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.

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

    DECISION

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

    Brendan Darcy
    Member