Sahota (Migration)

[2020] AATA 1053

Sahota (Migration) [2020] AATA 1053 (22 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kanwarpal Singh Sahota

CASE NUMBER:  1933693

DIBP REFERENCE(S):  BCC2019/3285789

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         22 January 2020 at 12:50 pm (VIC time)

DATE OF WRITTEN RECORD:                19 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 19 February 2020 at 1:23pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202  – not being enrolled in a course at the same level or a higher level than the registered course –decision under review affirmed

LEGISLATION
Migration Act 1958, s116
Migration Regulations 1994 (Cth), Schedule 8

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 November 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 22 January 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is a citizen of India and is 30 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs on 26 November 2019, cancelling his subclass 500 student visa pursuant to section 116(1) of the Migration Act 1958. The applicant's visa was granted on 5 April 2017. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa. The visa had an original expiry date of 24 June 2020 before it was cancelled. It provided for more than three years, two months, during which the applicant would be permitted to reside in Australia for the purpose of full-time study.

4. The applicant's visa was cancelled because the delegate determined that a legal basis for cancellation had been established under section 116(1)(b) of the Act. The delegate found that the applicant had not complied with a condition of his visa, specifically the delegate found that the applicant had failed to comply with that condition of the visa which requires him to maintain enrolment in a registered course of study that, once completed, could 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 had been granted.

5. Upon making that finding the delegate proceeded to consider all other relevant circumstances before concluding that the applicant's visa ought to be cancelled.  The delegate's reasons are set out in a decision record.  A copy of that record was provided to the tribunal by the applicant when he lodged his review application on 27 November 2019.

6. The first issue requiring consideration by the tribunal now is whether the ground for cancellation under section 116(1)(b) of the Act is made out, namely whether the applicant did not comply with a condition of his visa. If the tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the applicant's visa ought to be cancelled.

7. The tribunal convened a hearing to consider the merits of the application on 22 January 2020.  The applicant appeared before the tribunal via video link to give evidence and present arguments.  The applicant was assisted by his registered migration agent, Mr Harjinder Chouhan, in the preparation required for this hearing.  Written submissions and supporting documentation was filed with the tribunal prior to the hearing; however Mr Chouhan did not attend the hearing personally. 

8. Section 116(1)(b) of the Act requires or provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The applicant's visa was subject to a number of conditions as prescribed by schedule 8 of the Migration Regulations 1994 when the visa was granted. Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa. It requires the visa holder to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework, known as AQF, that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

9. The AQF is an objective measure for categorising courses within the Australian education system.  It creates a hierarchy of levels associated with all courses that are registered under its framework.  The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents.  A course that is classified as AQF Level 1, being a Certificate I, has the lowest levels of course complexity, achievement depth, and study autonomy.  A course that sits at AQF Level 10, being a doctoral degree, has the highest levels.

10. The imposition of condition 8202(2)(b) draws attention to the fact that all student visas are issues for a specific kind of study purpose that is tailored to the particular visa holder.  The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. 

11. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from downgrading to a simpler course.  In that regard condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia's student visa program is not abused.

12. As the delegate's decision record notes, the applicant's visa was originally granted on the basis that the applicant was enrolled in and would successfully complete a Bachelor of Business.  This bachelor's course was to be undertaken at Group Colleges Australia.  The bachelor's course sits at Australian Qualifications Framework AQF Level 7.  As the delegate's decision record further notes, on 1 June 2017 the applicant's enrolment in the bachelor's course was cancelled by the course provider.  The applicant then re-enrolled in the bachelor's course on 14 November 2017 at the same course provider; however on 30 May 2018 the enrolment in the bachelor's course was again cancelled by the course provider.

13. Subsequently the applicant enrolled in a Certificate III in Light Vehicle Technology, a Certificate IV in Automotive Mechanical Diagnosis, and a Diploma of Automotive Technology at Adelaide College of Technical Education, a package of courses designed to qualify the applicant to become a mechanic.  The Certificate III sits at AQF Level 3.  The certificate IV sits at AQF Level 4.  The diploma course sits at AQF Level 5.  The delegate found that the applicant had breached condition 8202(2)(b) of his visa because he had downgraded his enrolment from an AQF Level 7 course to an AQF Level 5 course. 

14. The Department of Home Affairs wrote to the applicant by letter dated 24 October 2019, notifying him of its intention to consider cancelling his student visa.  That notice set out particulars of the matters that have been summarised above, and put the applicant on notice that the Department was concerned that he may be in breach of condition 8202 of his visa.  The applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.  The applicant responded to the notice in writing on 7 November 2019.  In that response, which was prepared with the assistance of his registered migration agent, Mr Chouhan, he included a statutory declaration which sought to explain why he had breached condition 8202.  However, it was implicit in that statutory declaration that he did not deny that he had breached condition 8202 as alleged by the delegate.

15. At the hearing before the tribunal on 22 January 2020 the applicant admitted that his enrolment in the Bachelor of Business course was cancelled on 30 May 2018 and that thereafter he only maintained enrolment in courses no higher than the diploma level.  The applicant admitted that this amounted to a breach of condition 8202(2)(b) of his visa.  Based on the evidence before the tribunal, it is clear that the applicant was in breach of his visa as alleged by the delegate.  The tribunal therefore finds that the applicant did not comply with condition 8202(2)(b) of his visa.

16. Having found that the applicant failed to comply with a condition of his visa, the tribunal must proceed to consider whether his visa should be cancelled.  There are no matters specific in the Act or Regulations that must be considered in the exercise of this discretion.  However, the tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the applicant in the course of the hearing, and any relevant matters identified in the Department's Procedures Advice Manual, known as PAM3, and entitled General Visa Cancellation Powers. 

17. The matters that ought to be considered are specifically listed PAM3 as follows:  (a), the purpose of the applicant's travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia; (b), the circumstances in which the ground for cancellation arose, including consideration of whether there are any extenuating circumstances beyond the applicant's control that led to the grounds for cancellation.  As a general rule, a visa should not be cancelled where such circumstances were beyond the control of the visa holder; (c), the extent of the applicant's compliance with visa conditions, including an assessment as to the extent to which the applicant has otherwise complied with visa conditions both now and on previous occasions; (d), the degree of hardship that may be caused to the applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional, or any other hardship as a result of a cancellation decision; (e), the applicant's past and present behaviour towards the Department, for example whether they have been truthful and cooperative in their dealings with the Department; (f), whether there are persons in Australia whose visas would or may be cancelled by the operation of s.140 of the Act; (g), whether there are mandatory legal consequences arising from a decision to cancel the visa; (h), whether Australia has obligations under any relevant international agreements that would be breached as a result.

18. I turn to consider first of all the purpose of the applicant's stay in Australia.  The visa which the delegate cancelled was the applicant's second Australian student visa.  According to the applicant in oral evidence given at the tribunal hearing, which the tribunal accepts, he first arrived in Australia on 20 April 2014, shortly after having been granted his first student visa.  That visa was valid for approximately two-and-a-half years.  It had been granted on the basis that the applicant was enrolled in, and would successfully complete, a Master of Business Administration at Western Sydney University.  On the evidence of the applicant it appears that he was eligible to enter into that MBA course in Australia on the basis that he had successfully completed a bachelor's degree at Punjab University back in India. 

19. In evidence the applicant stated that he had completed a Bachelor of Arts with a particular interest in political history.  That appears to be what qualified him to enter the master's course in an Australian university.  However, as the applicant proceeded to explain, he did not complete it for a variety of reasons.  It appeared that he had difficulties in relation to progression satisfactorily with that course.  As it turned out, however, he abandoned that master's course and in its place enrolled in a Diploma of Business and Advanced Diploma of Business.  It appears from the evidence of the applicant, and also from material that he has filed prior to the tribunal hearing, that he did successfully complete both the Diploma of Business and the Advanced Diploma of Business for the remainder of the currency of the first student visa.

20. From the documentary evidence provided for the tribunal, he completed the Diploma of Business on 17 January 2016, and he completed the Advanced Diploma of Business on 26 March 2017.  It was at this point in time that the applicant then applied for is second student visa.  He was granted this visa and it is this second student visa, the cancellation of which is now the subject of review by the tribunal.  It seems reasonably clear to the tribunal that the applicant was granted this second student visa for the essential purpose of him proposing to complete a bachelor's degree, specifically the bachelor's in business.  Completing a higher level qualification was the primary aim of both of his visas.  He obviously had failed to achieve that particular aim in relation to the first visa.  In fact it was a master's level course that was the primary aim of that visa.

21. The second student visa appears to have been granted by the Australian Government in order to give the applicant a second opportunity to achieve that goal, specifically that is to obtain a higher level qualification, being a bachelor's course, from an Australian educational institution before he returned to India.  However, once again, he has regrettably failed to make any meaningful progress in relation to that particular course.  The applicant has provided a copy of his academic transcript in relation to that Bachelor of Business which was undertaken at Universal Business School in Sydney.  It indicates that he undertook seven courses in the bachelor's course over 2017 and early 2018. 

22. There appear to be specifically four units in which he enrolled and studies and received marks for, but also several other courses which he was exempted from studying.  Presumably that appears to have been due to his completion of the Diploma and Advanced Diploma of Business, but in relation to the four units that he actually studied he failed everything.  He obtained a score of 41 per cent in Quantitative Methods.  He obtained a score of 38 per cent in International Business Management.  He obtained a score of 9 per cent in E-Business Management, and he obtained a score of 3 per cent in Stakeholder Values and Ethics.

23. By any objective assessment the progress in relation to that bachelor's degree start is entirely unsatisfactory, and it appears at this point he has made a decision shortly thereafter to abandon his continuation in the studies of the bachelor's course.  He has said in evidence, which the tribunal accepts, that he went to seek advice from a migration agent, and it's at that point, on 30 May 2018, that ultimately his enrolment in the bachelor's course was cancelled and he has then gone on to pursue VET - Vocational Educational Training - sector courses Certificate III and IV, and a Diploma in Mechanical Studies. 

24. It is within this context that the applicant's noncompliance with condition 8202 must be assessed.  The tribunal considers that the breach of condition 8202 represents a fundamental violation of the purpose for which the second visa was granted.  In the tribunal's view the second visa would never have been granted if he had proposed to undertake these VET level courses.  The purpose of the visa was for him to complete a bachelor's level course or higher.  This weighs heavily in favour of cancelling his visa.  The tribunal has considered the possibility that the purpose of the applicant's visa could potentially be restored by the applicant undertaking to enrol in and successfully completing another bachelor's course. 

25. However, the applicant's evidence given at the tribunal hearing in this regard is reasonably clear.  He wants to pursue the course to qualify as becoming a mechanic.  There has not been any clear suggestion by the applicant that, if his visa was not cancelled, he would immediately enrol in a bachelor's course and do what he was supposed to do.  The tribunal also notes that it does not need to obtain in any event a bachelor's course to qualify to become a mechanic.  The tribunal is of the view that there is now no compelling reason for the applicant to remain in Australia that is consistent with the original purpose for which his visa was granted.

26. The tribunal has given consideration to the ground for cancellation that has given rise to the breach.  In his original response to the Department he provided a statutory declaration where he set out what he believed were his reasons for not complying with condition 8202.  Essentially there was only one reason on that statutory declaration, and that being he did not know that he had to maintain enrolment in a bachelor's level course or higher.  That was the extent of his explanation.  He did not say anything else.

27. At the hearing before the tribunal he reiterated that particular reason and also sought to add more explanations for the reasons for the breach.  He referred to the fact that his mother has been suffering kidney problems and that has caused him significant distress and emotional turmoil. 

28. The tribunal accepts, based on the evidence given by the applicant at the hearing, that he is clearly suffering emotionally as a result of his visa situation, but ultimately the tribunal does not accept his evidence that the reason for his breach was due to his mother suffering illness.  He did not raise that particular point when he was first invited to do so in a statutory declaration.  The fact that he took the time to set out his reasons for his breach in a statutory declaration suggests that he gave significant consideration to the reasons why he was in breach of condition 8202 when the delegate invited him to explain, so if indeed his mother's illness had been the cause of this breach he would have set it out in that statutory declaration.  He did not do so.

29. The applicant also referred to a situation in his first three years of stay in Australia where he had been working part-time as a chef in an Indian restaurant in Cronulla.  It appears that certain representations were made by the restaurant owner that they would sponsor him for a working visa, it seems, but ultimately that did not come through and so he was extremely disappointed at that.  While that may be the case, and the tribunal accepts that may have been the case, it is certainly not a reason or explanation for why he breached condition 8202 of his subsequent visa that was granted to him.

30. In all of the circumstances the tribunal does not consider that the breach of condition 8202 was out of his control.  In particular, his ignorance of his obligation under condition 8202 does not constitute a satisfactory reason for being in breach.  The tribunal also reiterates the fact that the second visa was clearly granted for the express purpose of him completing a bachelor's level degree or higher, and he has, by his own conscious decision making processes, decided to abandon that second chance that he was given to complete a bachelor's level degree.

31. The tribunal has given consideration to the applicant's compliance with other visa conditions that attach to his visa.  In that regard there appear to be no other breaches or information that might suggest he has breached other conditions of his visa.  The tribunal accepts the evidence of the applicant that he has otherwise been a compliant non-citizen in Australia, he has obeyed all of the laws of Australia apart from the breach of his condition.  That particular factor weighs in his favour and against cancellation.  The tribunal also has taken into account the hardship - financial, emotional, and psychological - that will arise if his visa were to be cancelled. 

1. The tribunal accepts that he is genuinely very nervous and upset about the situation that has arisen with respect to his visa, and that he will suffer significant emotional turmoil as a result of having his visa cancelled.  He was visibly upset in the course of giving evidence to the tribunal, and the tribunal accepts that he will generally be very disappointed and upset, as will his family, if he is forced to return to India as a result of his cancelled visa.  So that factor has been taken into account and some weight has been given to it in the applicant's favour.  In fact, that probably is the most significant consideration that weighs in his favour, because he does come across as genuinely upset and wanting to remain in Australia so that he can complete this particular course, or this package of courses.

2. The tribunal has given consideration to the applicant's past and present behaviour towards the Department.  He has at all material times been cooperative with the Department in attempting to resolve this particular issue with his visa.  There do not appear to be any other consequential cancellations under section 140 of the Act.  The tribunal notes that if his visa is cancelled he will become an unlawful non-citizen and liable to detention under section 189, and removal under section 190 of the Act if he does not voluntarily depart Australia.  A bar under section 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. 

3. He will also be subject to a three year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met.  However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds.  They reflect the very serious nature of a breach of any visa condition.  The tribunal notes the applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia.  He is a citizen of India and holds a current passport for that country, so he can return there.  While detention and forcible removal from the country are significant coercive powers, they will only eventuate if the applicant does not cooperate with authorities in giving effect to his departure from Australia.

4. The tribunal notes that Australia's international obligations are not engaged by the circumstances of this case.  In all of the circumstances of this particular case, the fact that the purpose of the visa is fundamentally defeated as a result of the applicant's actions to withdraw from progression of a bachelor's course, and also having regard to the circumstances of this breach within the control of the applicant, those factors in particular have led the tribunal to conclude that the applicant's visa should be cancelled. 

5. Accordingly, at 12.50 pm on 22 January 2020, in case number 1933693, the tribunal affirms the decision to cancel the applicant's Student (Temporary) Class TU subclass 500 visa.

   DECISION

6. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member