PATEL (Migration)

[2021] AATA 2643

PATEL (Migration) [2021] AATA 2643 (30 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms KHUSHBOO ROHITKUMAR PATEL

CASE NUMBER:  1921830

HOME AFFAIRS REFERENCE(S):          BCC2019/1535251

MEMBER:Jennifer Cripps Watts

DATE:30 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa

Statement made on 30 May 2021 at 2:08pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not maintain enrolment in a registered course at AQF Level 7 – breached condition 8202 –poor record as a student in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116,359
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa (the visa) under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The Minister cancelled the visa on the basis that the applicant had not complied with a condition of the visa. The visa was subject to condition 8202 which required, relevantly, that the applicant be enrolled in a full-time course of study: cl.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 the Tribunal is satisfied that it is made out, whether the visa should be cancelled.

3. The applicant was granted the visa on 29 January 2018.  On 21 June 2019, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her visa on the basis that she had not been enrolled in a full-time course of study since 15 May 2018 and had not therefore complied with condition 8202(2)(a) of her student visa.

4. On 10 June 2020, the Tribunal sent the applicant an invitation to attend a scheduled hearing, by phone, on 20 July 2020.  The Tribunal chose to conduct the hearing by phone, as it was scheduled during the hCOVID-19 pandemic amid nationwide lockdowns and general uncertainty as to people’s freedom of movement at that time.  The issue under review is the same substantive issue on which the visa was cancelled and the Tribunal was satisfied, in the circumstances, that having a phone hearing would not prejudice the applicant's right to a fair hearing.

5. The applicant appeared before the Tribunal by phone on 20 July 2020 to give evidence and present arguments.  In the written hearing invitation, the Tribunal offered the applicant the opportunity to request an interpreter, one was not requested prior to, or at, the hearing.  The Tribunal is satisfied that all who participated in the scheduled hearing could be heard and understood, bar the occasional need for clarification, which is not unusual in hearings, particularly in the Migration Division, where parties frequently do not share the same first language.

6. On 15 December 2020, the Tribunal communicated with the applicant, by email, inviting her to provide any additional information she wished to be considered in her case.  No response was received. 

7. Before making its decision, on 3 May 2021 the Tribunal informed the applicant of adverse information, observing its obligations under s.359A of the Act.   The applicant provided comments on 17 May 2021, which have been considered and are discussed later.

8. 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

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.

10. The Tribunal has had regard to relevant information and matters material to the mandatory and discretionary issues under review, on both the Tribunal and Department files, the applicant’s oral evidence given at the scheduled hearing, and any other relevant matters.

11. The applicant does not dispute her non-enrolment at the relevant time, and on the basis of which her visa was cancelled for non-compliance with condition 8202(2)(a).  It is claimed by the applicant that her non-enrolment was beyond her control because, essentially, she was ‘not mentally ready at the time’.   The background and reasons behind this are set out in her typewritten statement, received by the Tribunal on 2 July 2020; they were discussed with the applicant at the scheduled hearing.

    Background

12. With reference to the applicant’s typewritten statement, oral evidence she gave at the hearing and other relevant information, the applicant’s evidence includes:

    a.She came to Australia on 15 July 2015, holding a student visa for the purpose of studying a Masters of Professional Accounting at Curtin University (Curtin), planning to discuss wedding plans with a partner she left behind in India, once she completed her studies.  The relationship did not last because they communicated less and less once the applicant was in Australia. 

    b.That she had trouble settling in to the ‘new education system’ at Curtin University and did not pass all of her subjects in the first semester.  She and her (former) partner were arguing and the applicant’s parents were not very understanding about her ‘situation’.   These problems remained unresolved into semester 2 and the applicant’s partner in India broke up with her after a four year relationship; she was ‘really upset’ and ‘going into depression’ and ‘crying a lot’.

    c.A friend of hers took her to see a counsellor and she explained the reason for the visit to the counsellor, relating to the struggles she was having (as described above).  The applicant attended weekly counselling and finished the second semester at Curtin.  Despite working hard, the applicant she ‘failed … again’.  An appeal was lodged with the university, but was unsuccessful and the applicant was not permitted to re-enrol in the Masters of Professional Accounting at Curtin University in 2016.  Her enrolment was cancelled for unsatisfactory course progress.  After discussion about her future options with the counsellor, the applicant decided to enrol in a bachelor level course because it would be ‘a bit easier’.

    d.The applicant decided to stay in the Perth area.  She said she had read somewhere that Western Australia’s economy was the fastest growing of any state in Australia and considered her future career opportunities there were good.  In addition, as the holder of a student visa, she would be able to work 40 hours a fortnight, and full time during vacation, to gain relevant experience. 

    e.In February 2017, having enrolled in a Bachelor of Business at the Australian School of Management in Perth (ASM), and said she felt she was getting her ‘self confidence back’ and coming ‘out of depression’.  However, around exam time the students at ASM were told that ASM was shutting down, but they could still complete their exams.  ASM offered the applicant two choices for ongoing enrolment, at either Central Queensland University (CQU) or Edith Cowan University (ECU).  On enquiry, the applicant was told by CQU that they would not enrol her because of her ‘termination’ from Curtin.

    f.On the recommendation of a friend, the applicant applied to Murdoch University (Murdoch) and was accepted into a Bachelor of Business (Accounting) in 2017 with a $10,000 first year scholarship. 

    g.In March 2018, the applicant was homesick and travelled to India to see her parents.  She met a man, Rushi Patel who lived in Canberra, on the flight back to Australia.  They started a relationship and then decided to get married.  They  talked to their parents, but unfortunately the parents were against this.  The applicant her new partner moved to Canberra in November 2018.  The applicant says her new partner (who is now her husband) is patient and supportive and has helped her regain her confidence. 

    h.The parents finally agreed to the marriage and, on 6 December 2019, the applicant married Rushi Patel (marriage certificate and registration provided to the Tribunal).

    i.The applicant said at the Tribunal hearing, in July 2020, that her husband was the holder of a Subclass 485 visa that would cease in February 2021.

    j.The applicant had an intention is to return to India and take over her father’s business after she has finished her studies and gained some experience in Australia.  However, the applicant has also said that she and her husband are pursuing, or intending to pursue, visa options that will provide a pathway to permanent residency in Australia.

    Notice of Intention to Consider Cancellation (NOICC)

13. In an email dated 6 July 2019, in response to the Department’s NOICC, claims by the applicant include:

    a.She has been an international student since July 2015 and has never breached ‘any law regarding my visa’

    b.She was not aware that her enrolment was cancelled on 15 May 2018 because she thought her agent had enrolled her

    c.The applicant had never received any communication (before the NOICC) notifying her that the enrolment had been cancelled

    d.That her enrolment was cancelled by the education provider due to miscommunication and the applicant says that her migration agent will be enrolling her in a course ‘next semester’ (meaning the Spring semester in 2019)

    e.A request for more time to check and confirm her enrolment status

14. On 6 July 2019, the applicant sent another email to the Department in response to the NOICC confirming that the enrolment had been cancelled, but that her agent was ‘making sure to enrol me in a same course in next term which is starting soon’.

    The applicant’s student visa, that is the subject of this review, was cancelled on 2 August 2019.

    Adverse information put to the applicant under s.359A of the Act

15. On 3 May 2021, the Tribunal sent the applicant what is commonly referred to as a s.359A letter, in which two adverse matters were raised for her comment or response:

    a.The first adverse matter, which the Tribunal felt on reflection had not been adequately explained as being adverse at the hearing in July 2020, related to the Confirmations of Enrolment (COE) the applicant provided at the scheduled hearing, and the requirement that she maintain enrolment at the appropriate level of study, as specified in condition 8202(2)(b); and

    i.Condition 8202(2)(b) requires, essentially, that in addition to being enrolled in a full time course of study (8202(2)(a)), the enrolment must be maintained ‘in a registered course that, once completed, will provide 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 was granted.  The visa was granted in relation to enrolment in bachelor level course, AQF level 7.  The COEs the applicant had provided at the Tribunal hearing were for diploma/advanced diploma level courses, at the Crown Institute of Business and Technology, AQF levels 5 and 6 respectively,:

    ii.The COE’s provided to the Tribunal indicated the applicant was enrolled in Diploma and Advanced Diploma of Leadership and Management, commencing 6 July 2020 and ending 4 September 202 (AQF 5/6);

    iii.So while it is acknowledged by the Tribunal that the applicant provided evidence, at the time of this decision, of enrolment in a full time course of study, it is not at the required AQF level 7 or higher.  Rather, it is below the AQF level 7, meaning that the applicant, having provided evidence of enrolment in a full-time course of study, did not provide evidence of enrolment in a full-time course of study, relevantly in this case, at AQF 7. 

    b.The second adverse matter related to the applicant’s evidence of her husband’s visa status.  A check of Tribunal records in early May 2021 showed that the applicant’s husband, Rushi Patel, has a review application awaiting allocation to a (different) member for the refusal of a Subclass 500 student visa.  His student visa was refused on 13 March 2020 and the review application made on 20 March 2020.  This had not come to the notice of the Tribunal earlier.  The information appeared to be inconsistent with the applicant’s oral evidence at the Tribunal hearing in July 2020 that her husband held a Subclass 485 visa that would cease in February 2021 and that they had a plan for him to obtain regional sponsorship, which is a potential pathway to permanent residency. 

    i.Their future plans to settle in Australia had been raised by the applicant relating to the discretionary matters the Tribunal must consider when deciding whether the cancellation should be set aside.

16. The applicant responded to the matters raised in the s.359A letter sent to her on 3 May 2021.  Her written response included:

    ·That she could not concentrate on her studies and ‘hence I could not get any COE for the Bachelor program which is AQF Level 7 or higher’

    ·The COVID pandemic resulted in the 2019-2020 quotas for the ACT regional nomination being delayed, for the purpose of subclass 491 visa applications

    ·As a result of the delays relating to processing of nominations, her husband ‘in order to stay legally he had to apply for a student visa which was refused’

    ·The applicant’s husband is eligible to apply for the regional nomination and subclass 491 visa, but cannot do so onshore, and he would not be able to ‘go overseas and come back’

    ·The applicant and her husband’s hands are tied because the applicant’s student visa was cancelled and her husband’s application for a student visa was refused

    ·The setting aside of the applicant’s student visa cancellation (that is the subject of this review) would enable them to ‘prove our commitment to study or apply for ACT nomination’

    ·The applicant offering to provide a COE for a bachelor degree

17. The Tribunal has considered the information provided in the applicant’s response. 

    Did the applicant comply with Condition 8202?

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

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

    ·maintain enrolment in a registered course that, once completed, will provide an AQF qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; 8202(2)(b)

19. At the Tribunal hearing, the applicant provided a written statement that she confirmed was essentially the same as the NOICC response she had provided to the Department in June and July 2019, but said that she had updated the statement and added more information.  The information contained in the Department and Tribunal statements provided by the applicant has been considered and was discussed with her in detail at the scheduled hearing.

20. At the Tribunal hearing, the applicant went through her study history and gave oral evidence about the circumstances relating to the course and education provider changes she had made from the time of the grant of the visa in 2018, and explained why her enrolments had all been cancelled up until 2019.  The Tribunal is satisfied that the information provided by the applicant was generally consistent with that contained in the PRISMS record on the Department file, and accepts the applicant’s summary of her enrolments and study history.

21. At the Tribunal hearing, it was explained to the applicant that firstly the Tribunal needs to consider whether there is a ground for the cancellation and, even if there is, that discretionary matters must be considered when deciding whether the decision to cancel her student visa should be affirmed or set aside.  The applicant indicated she understood and stated that she did not dispute the ground for cancellation, for non-compliance with mandatory condition 8202(2)(a), because she knew she was not enrolled in a full time course of study at the time her visa was cancelled.

22. The visa was granted in relation to the applicant’s enrolment in a full-time bachelor level registered course.  In July 2019, the applicant informed the Department that her bachelor degree enrolment had been cancelled and no further evidence of maintaining enrolment in an AQF level 7 course has been provided since then.  At the scheduled hearing two COE’s were provided for Diploma and Advanced Diploma courses, which are levels 5 and 6.  In the applicant’s response to the Tribunal’s letter, received on 17 May 2021, the applicant includes that she has ‘tried to address’ the Tribunal’s concerns and states ‘I am more than happy to provide the COE of a Bachelor Program which shall meet the requirement of my Visa Grant conditions’.

23. The Tribunal has considered the applicant’s offer to provide another COE.  On the basis of the applicant’s poor academic performance over a period of many years, even on her own admission, she has had, on at least one occasion, been excluded from re-enrolment on the basis of her poor performance, and on another occasion was not able to obtain enrolment in a bachelor degree in Canberra.  The applicant could have been and should have been aware of the conditions of her visa, specifically that she needed to comply with the matters in condition 8202, which included maintaining enrolment in a registered full-time AQF level 7 course or higher.  The applicant has provided no evidence of compliance with the requirement, either at the time the visa was cancelled, or the time of this decision.  Her offer to provide the enrolment, the circumstances, is considered to be disingenuous.  The applicant has had ample opportunity to regularise her enrolment, over many years, and has not done so. 

24. The applicant’s visa was granted in 2018 in relation to a bachelor level course, which would have provided a qualification from the AQF that is level 7.  Since then, the applicant has enrolled in a Diploma/Advanced Diploma course, which would have provided a qualification from the AQF at level 5 and/or 6.

25. For the reasons given, the applicant has not maintained enrolment in a full time registered course that, once completed, will provide an AQF qualification that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.  Therefore, there has been non-compliance with

26. The applicant has not complied with conditions 8202(2)(a) and 8202(2)(b).  Accordingly, ground for cancellation is made out.

    Consideration of the discretion to cancel the visa

27. The Tribunal must consider whether the decision to cancel the visa should be set aside. 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 stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia

28. The applicant was granted consecutive subclass 500 student visas, in 2015 to study a masters degree, and in 2018 relating to her enrolment in a bachelor degree course at AQF level 7.  The applicant has not finished any course she has been enrolled in.  Nor has the applicant maintained enrolment in a course at the required AQF level 7.  These matters have already been discussed in detail earlier.  The extent of the applicant’s non-compliance goes to the essence of the visa grant, that is, to reside in Australia for the purpose of receiving a qualification. 

1. In an email the applicant sent to the Department on 6 July 2019, she that her agent is enrolling her in the ‘same course’ (referring to a bachelor degree) ‘next term which is starting soon’.  No evidence has been provided by the applicant that this occurred.

2. The applicant provided the Tribunal with COE’s for lower level VET diploma/advanced diploma courses in mid-2020, but has provided no additional evidence to indicate she has continued with that or any other study.

3. The applicant includes in her May 2021 written submission to the Tribunal that it is her intention, if the cancellation is set aside, to ‘prove (her) commitment to study’. 

4. From 2015, for a period of six consecutive years up to the time of this decision, while residing in Australia on a student or related bridging visa, the applicant has provided little reliable evidence that indicates she has done much study at all and, in addition, she has not obtained any tertiary qualification.  Most, if not all, the courses the applicant has enrolled in have been cancelled. 

   The extent of compliance with visa conditions

5. The applicant’s visa included, among others, mandatory condition 8202; cl.500.611 of Schedule 2 to the Regulations.  Relating to the visa granted on 29 January 2018, she has failed to maintain enrolment in a full-time registered course of study that will provide a qualification at AQF level 7 or higher.  The Tribunal considers the non-compliance relating to condition 8202 by the applicant, particularly as it relates to the fundamental purpose of visa grant, to be significant.

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

6. The applicant and her husband are Indian nationals.  Neither holds a substantive visa at the time of this decision, they both hold bridging visas relating to the review applications with the Tribunal (in separate matters).  Reference has been made by the applicant to her husband’s application for a temporary skilled visa, in mid-2019, including her as a dependent secondary applicant.  The applicant’s student visa was cancelled on 2 August 2019.  The applicant’s husband had his student visa application refused on 13 March 2020 and applied to the Tribunal for review of the decision, which has not yet been decided.  It is acknowledged that the applicant has submitted that her husband applied for the student visa so they could remain onshore until regional nomination processing starts again in the ACT.  No additional information has been provided to the Tribunal relating to the skilled visa regional nomination or application.

7. The applicant and her husband both entered Australia holding temporary student visas.  While they may hope to pursue permanent residency if the opportunity arises or they are granted a suitable visa, student visas do not provide a pathway to permanent residency in Australia, and it is reasonable to think that the applicant and her husband would have been aware of this, as it is the responsibility of a person who has been granted a visa to understand the purpose and conditions of the visa they have been granted, and aware that they may need to depart Australia when the temporary visa or visas cease.

8. The Tribunal has considered whether the applicant will suffer any hardship if her cancellation is not set aside.  The applicant gave evidence that they (referring to herself and her husband) own a Toyota car, but no other substantial assets.  It is not unexpected that a person who has lived in Australia for six or so years, and who would prefer to remain living here, may not want to depart and that they may suffer some level of financial, psychological, emotional hardship as a result of that internal conflict.

9. The cancellation of the applicant’s student visa, which means she will most likely be required to depart Australia, and the circumstances in which her husband can apply for a subclass 491 visa but only offshore, will not necessarily result in their separation.   That will be a matter for the applicant and her husband.

   Circumstances in which the ground for cancellation arose

10. The applicant’s circumstances relating to the reasons given for her lack of progress or success with her study has been considered and discussed in detail above.  The applicant has also referred to being unaware that her enrolment had been cancelled in May 2018 and sought to blame her migration agent for not informing her earlier, that is, before the applicant was made aware of the cancellation by the Department.  It is inconceivable that the applicant did not know that she was not studying in circumstances where the education provider cancelled her enrolment because she did not commence study and it is not accepted that it was the fault of her migration agent that the applicant did not realise she was no longer enrolled. 

11. The applicant stated in her letter to the Tribunal dated 3 May 2021 that she tried to obtain enrolment in a bachelor degree after she moved to Canberra, but was not able to because she could not concentrate on her studies.  While it is accepted by the Tribunal that the applicant tried to enrol in a registered course of full time study after moving to Canberra, the applicant said at the Tribunal hearing that she had difficulty because she had had previous enrolments cancelled.  Ultimately, it is the Tribunal’s view that it was her own poor academic record that was the primary reason the applicant was unsuccessful in securing an appropriate enrolment that would enable her to comply with her visa conditions, up to the time her visa was cancelled on 2 August 2019.

12. The Tribunal has considered the reasons the applicant has given for her non-enrolment and the applicant’s claim that she was unaware that she was not enrolled, because her migration agent didn’t tell her.  The Tribunal is not persuaded that applicant’s version of events and circumstances in which the ground for cancellation occurred were beyond her control.

    Past and present behaviour of the visa holder towards the department

13. There is no evidence before the Tribunal that the applicant has been unco-operative or uncommunicative in her dealings with the Department.

    Whether there would be consequential cancellations under s 140

14. On the evidence, the Tribunal accepts that the applicant is married to Rushi Jagdishkumar Patel, born 1994.  He is not included as a dependant relating to the student visa that is the subject of this review.  There is no information before the Tribunal, and the applicant has made no claim, that there is anyone in Australia who visa/s would, or may, be consequentially cancelled under s.140 of the Act.

    Whether there are mandatory legal consequences, such as whether cancellation would result

15. The applicant currently holds a bridging visa relating to the visa cancellation under review. Cancellation of her student visa will result in the applicant becoming unlawful, liable for detention under s.189 and removal under s.198 of the Act. Cancellation could also result in a s.48 bar on the applicant being able to apply for another visa onshore, with some very limited exceptions, or making an application for Ministerial Intervention. In the event of cancellation, Public Interest Criterion 4013 may limit the grant of any temporary visa within a specified time period.

    Australia’s international obligations, including non-refoulement

16. There has been no information provided, or claim made, nor is there any other relevant information before the Tribunal, that Australia’s international or non-refoulement obligations would be enlivened, nor that there would be any breach of such obligations, in the applicant’s circumstances.

    Other relevant matters

17. The Tribunal acknowledges, at the time of this decision, that the world is in the midst of a pandemic and that there are significant disruptions to international travel.  However, there is no information currently before the Tribunal to indicate that Indian citizens cannot return to their country of origin.

18. It is acknowledged that the applicant has a family member, her husband, residing in Australia with her who, she has informed the Tribunal in her letter dated 17 May 2021, can apply for ACT nomination for a subclass 491 visa, but only if he is offshore.  However, he is not included in the applicant’s student visa application and not subject to consequential cancellation under s.140 of the Act.

    Conclusion

19. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Jennifer Cripps Watts
    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.