Roberts (Migration)

[2020] AATA 4734

Roberts (Migration) [2020] AATA 4734 (7 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vincent Roberts

CASE NUMBER:  1802599

HOME AFFAIRS REFERENCE(S):          BCC2017/3534638

MEMBER:Donna Petrovich

DATE:7 August 2020

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 07 August 2020 at 11:46am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – ongoing illness –medical evidence provided – decision under review  set aside

LEGISLATION
Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course for a period of more than 7 months. 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 appeared before the Tribunal on 7 January 2020 to give evidence and present arguments.

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

5. 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

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.

   Background

7. The applicant is a 23 year old Indian man, who was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 24 May 2016. He enrolled in a Bachelor of Nursing at UWS in Sydney.  He told the Tribunal that he is married and that his wife is a doctor and is practicing in the Ukraine and that she has an 11 year old son. The applicant’s mother, father, and married sister are all in India.  The applicant’s family own a farm where they grow wheat, lentils, turmeric and mangoes, where the applicant hopes to return to assist his family, as his father and mother are in their 70s and will need help as they age.   

   Did the applicant comply with Condition 8202?

8. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

10. The applicant arrived in Australia from the Ukraine in 2013 to Study a Bachelor of Nursing and was enrolled to study at UWS Sydney.  The applicant was granted a Student (Temporary) (Visa 573) on 24 May 2016. The Department found that the applicant was un-enrolled between 4 April 2017 and the 8 November 2017 a period of 7 months.  The applicant responded to the Notice of Intention to Consider Cancellation and disputed that he was un-enrolled for this period. The applicant has provided the Tribunal with information which seeks to explain the circumstances that led to the cancellation.  The applicant told the Tribunal that due to an ongoing health problem the University sent him two emails the first notifying him that his enrolment was to be cancelled due to poor academic progress in two subjects, the second email notifying him that he was ‘at risk’.  He told the Tribunal that once he had spoken to the University about his health issues the situation was remedied and he was reinstated in his course and he was notified that his at ‘risk status’ had been remedied.

11. The applicant was directed to the University’s Disability Unit, where he was provided with options to assist with his study difficulties including classroom time in the morning to assist with fatigue and support for his issues around the double vision he was experiencing. The applicant provided a copy of a current Certificate of Enrolment (COE) for a Bachelor of Nursing which is dated 17 July 2017 to be completed 31 January 2021.  The applicant explained that there was a period of three months where there was an issue with the University because of his health issues and cancellation due to lack of academic progress; this cancellation was reconsidered at appeal by the University and he obtained enrolment reinstatement.  This seems to coincide with the timing of the Notice of Intention to Consider Cancellation which states that he was not enrolled between 4 April 2017 and 8 November 2017.  The applicant explains this as a period of three months where he was not enrolled and disputes that the period of non-enrolment was seven months, and that this was beyond his control due to his ongoing illness.

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

    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 stay in Australia, whether the visa holder has a compelling need to travel and stay in Australia.

14. The applicant told the Tribunal that he would be able to finish his studies by December 2020 and graduate in January 2021.  He has continued to study and at the time his visa was cancelled he was enrolled and continued studying two units and a workplace unit of his course.  It appears to the Tribunal that there has been a three-month period where the applicant was not enrolled due to unsatisfactory academic progress (because of illness) for which he was reinstated on appeal by the applicant.  The Tribunal in considering the applicant’s evidence of his desire to complete this course and because of the circumstances that led to his being un-enrolled temporarily, the Tribunal is prepared to accept that there is a compelling need based on the applicant’s circumstances and that he is due to finish this course in December 2020. On this basis the Tribunal places weight in favour of the applicant in this regard.

    The extent of compliance with visa conditions

15. The applicant appears to be in breach of his visa condition and was shown not maintain his enrolment for a recorded seven-month period due to illness, and the timing of receiving his academic results, which has impacted his ability to present a current COE. The period of actual non enrolment on the evidence provided appears to be more like a three-month period (at time of practical enrolment).  Whilst, the Tribunal considers this to be a breach, it is sympathetic to the applicant’s circumstances and his previous compliance. The Tribunal therefore places some small weight in favour of exercising discretion not to cancel.

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

16. The applicant told the Tribunal that this Nursing course “is very powerful” and would enable him to return home to India to his family with a future that would enable him to work anywhere. The applicant explained that his mother and father are in their 70s and have a farm, which has a house that he and his wife and child can move to which will enable him to look after his family and manage the family farm.  His wife can undertake a bridging course to practice medicine in India and he can later use his degree in Nursing. The Tribunal accepts that if the delegate’s decision is upheld that the applicant and his family will undergo some degree of hardship.  In these circumstances the Tribunal gives some small weight in favour of the applicant in this regard.  

    Circumstance in which the grounds for cancellation arose.

17. The applicant provided evidence at the hearing of an ongoing medical condition which had made it difficult for him to study. As a result of suffering from Extotrophia, the applicant suffered from fatigue and double vision, which resulted in poor academic results over two subjects.  The applicant told the Tribunal that he received two emails from UWC University, the first informed him that due to poor academic progress he was being excluded from  study; the second email notified him that he was a Student at Risk. The applicant sought advice from Student Services who advised him to appeal, which he did.  As a result, the decision to exclude him was rolled back. He explained that he was unable to provide a copy of the COE, as he sat exams in November and was unable to provide the COE until his results were available in December, which he received via email and then received a copy of the COE in January 2018.  It appears that the applicant’s circumstances arose initially because of his illness and his inability to provide a current COE to the Department because of timing of exam results.  In considering all of the evidence provided, the Tribunal gives some weight in favour of the applicant on the basis that these circumstances are largely beyond the applicant’s control.

    The applicant provided the Tribunal with copies of the following relevant correspondence in support of his claims

    ·     Letter dated 18 January 2017 – Dr James (Son) Chau Vo Opthamologist detailing the applicant’s eye condition – Exotrophia;

    ·     Account dated 15 December 2016 for level B Surgery – Dr Masum Ahmed;

    ·     Undated letter to UWS detailing health condition and reasons for poor Academic performance;

    ·     Copy of current COE dated 17 July 2017 – 31 January 2021 pre paid $11,240 in addition to already paid $72,855;

    Past and present behaviour of the visa holder towards the department

18. The applicant has been co-operative and courteous in his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given in favour of the applicant in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140

19. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would or, may be cancelled under s.140 of the Migration Act 1958 (“the Act”). According to Department records there are no persons in Australia whose visa may be cancelled under s.140 of the Act. Accordingly, the Tribunal place no weight on this consideration.

    Whether there are Mandatory Legal consequences, such as whether the cancellation would result in the visa holder being unlawful and liable for detention, or whether indefinite detention is a possible consequence of cancelation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Ministers intervention

20. The applicant understood that he would need to return to India if his visa was cancelled. I acknowledge that he would need to apply for a Bridging Visa E to remain lawfully in Australia so that he can finalise any outstanding matters and it was discussed with the applicant that he would be subjected to Section 48 of the Act which would limit his options for returning to Australia.

    If it is a permanent visa whether the visa holder has strong family ties

21. This is not a permanent visa and not relevant to this applicant. Therefore, neutral weigh is given.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

22. The circumstances of this case are such that they would not engage Australia’s International obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

23. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

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

    DECISION

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

    Donna Petrovich
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder  (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)     the holder is enrolled in a registered course; or

    (b)     in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.