SANGATHALA (Migration)

[2020] AATA 3511

SANGATHALA (Migration) [2020] AATA 3511 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHIVA KUMAR SANGATHALA

CASE NUMBER:  1718485

HOME AFFAIRS REFERENCE(S):          BCC2017/1896271

MEMBER:David McCulloch

DATE:16 July 2020

PLACE OF DECISION:  Sydney

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 16 July 2020 at 9:48am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – ankle injury – period of non-enrolment – genuine desire to study – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a national of India, born on 27 July 1988. The visa that has been cancelled was granted on 2 July 2015 for a stay period until 15 March 2018. That visa was subject to condition 8202.

2. On 18 July 2017, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course on 21 April 2017. The applicant provided a response to the NOICC on 2 August 2017. On 14 August 2017, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

3. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

4. This matter was constituted to a Tribunal who conducted a hearing of the Tribunal on 28 August 2019. That Member ceased to be a Member of the Tribunal before finalising a decision. Subsequently, the matter was reconstituted to a different Member of the Tribunal who conducted a second hearing on 9 July 2020 at 9.30 am.

5. The Tribunal exercised its discretion to hold the second hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments, including in the second 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. 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. This is an application for review of a decision dated 13 August 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).

   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:

   a.be enrolled in a full-time registered course: 8202(2)(a)

   b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 21 April 2017.

11. In the first Tribunal hearing, the applicant agreed that he had ceased to be enrolled in a registered course on this date. The Provider Registration International Student Management System (PRISMS) indicates that on 20 July 2017, the applicant enrolled in a Master of Business Administration.

12. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

13. 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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

16. In his written statement, the applicant claims that there are extenuating circumstances beyond his control that explain his failure to be enrolled in a registered course. This is claimed as being due to an ankle injury which caused the applicant to decide that he needed to travel to India for treatment. Further, on two occasions the applicant claims that he contacted his education provider to firstly indicate that he was not able to attend classes because of the injury and secondly to request leave to travel. The applicant indicated that in response to his request to be allowed not to attend classes because of the injury, the education provider was unhelpful and insisted that the applicant attend otherwise he would be reported. In relation to the request for leave to travel, this request was refused.

17. The Tribunal has credibility concerns with this explanation as to claimed extenuating circumstances. Firstly, the applicant initially indicated in the first hearing that the foot injury occurred a week before he booked the flight to India which is inconsistent with other evidence that it occurred a month before he booked the trip to India. The applicant confirmed the latter in the first hearing. The applicant indicated that he sought no medical treatment for his injury in Australia. The applicant indicated that the cost of medical treatment was prohibitive in Australia and therefore he decided to return to India so he could be treated by his family doctor. As put to the applicant in the second hearing, the Tribunal finds this scenario implausible, including on the basis that the cost of medical treatment in Australia is more than likely offset by the cost of a return ticket to India. In addition, it would be implausible that an individual who was a diligent student and cognisant of visa obligations would leave for India without approved leave from their education provider, given the risk to enrolment and the student visa. The applicant initially indicated that he had no comment in relation to the Tribunal’s view as to the implausibility of the scenario maintained by the applicant.

18. On these grounds, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for his failure to be enrolled in a registered course from 21 April 2017 until 20 July 2017. This is adverse to the applicant in the exercise of the Tribunal’s discretion. The Tribunal does note however that this approximately three-month period of non‑enrolment is not overly extensive.

19. The applicant indicated that on his return to Australia, he decided not to progress with his Master of Information Systems. PRISMS indicates that the applicant, on 20 July 2017, enrolled in a Master of Business Administration due to commence on 28 August 2017.

20. The applicant has indicated that he did not have the ability to study on his visa and this is why he did not progress with the Master of Business Administration or has studied since. The Tribunal noted to the applicant in the second hearing that there is no ‘no study’ condition on a bridging visa meaning that, legally, the applicant is not prohibited from studying. It was clear from the applicant’s response in the second hearing that he had thought when he received notification of the cancellation of his student visa on 14 August 2017 that that meant the applicant was not permitted to study.

21. Although this is not the legal reality, the Tribunal accepts that it is not an unreasonable assumption that the applicant may have made. Additionally, the Tribunal does accept that some institutions will cancel and not accept enrolments if there is no valid student visa.

22. As put to the applicant in the hearing, a committed applicant could be expected to have investigated options including through a migration agent to seek to study on a bridging visa without a no study condition. In the second hearing, the applicant indicated that in the middle of 2017, he had a migration agent but this person was not effective and the applicant dispensed with the services in August 2017.

23. The applicant indicated to the Tribunal in the second hearing the limbo he has been in for a considerable period since the visa was cancelled, having no ability to travel to his home country and work. The applicant expressed frustration at the Tribunal process. The Tribunal accepts difficulties and inconvenience to the applicant as a result of the long period that the applicant has had to wait for a Tribunal decision with two hearings and different Tribunal Members.

24. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of his inability to apply for many categories of visa onshore and being barred from Australia for three years.

25. The applicant indicated that his intention if the visa is reinstated is to re-enrol in a Master of Business Administration at a named education provider commencing in August 2020. The applicant indicated that there will be hardship if the visa remains cancelled in terms of his inability to undertake this course and having to return to India after years in Australia with little or no achievement.

26. Albeit that the Tribunal has some concerns with the fact of the applicant not continuing with his Master of Information Systems and suddenly deciding that he wished to switch to a Master of Business Administration, on balance, the Tribunal accepts that the applicant has a genuine desire to progress with the Master of Business Administration.

27. The Tribunal considers that the foregoing has addressed relevant circumstances and discretionary factors in this matter.

28. The Tribunal weighs discretionary factors. As indicated, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for not being enrolled in a registered course. However, the period of non-enrolment being approximately three months is not an overly lengthy period. On balance, the Tribunal accepts that the applicant had, and has, a genuine desire to study a Master of Business Administration but did not previously progress with this option as he considered that he did not have the ability to study after receiving the notification of cancellation of his student visa.

29. The Tribunal accepts that the applicant has been held in limbo for a long period as a result of the length of the Tribunal process.

30. The Tribunal accepts that the applicant has a genuine desire to enrol in and study the Master of Business Administration due to commence in August 2020. As the student visa that has been cancelled has expired, the applicant will need to make a new application for a student visa which will be considered on its own merits.

31. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of not being able to remain in and study in Australia and having to return to India with little educational progress. The Tribunal accepts hardship to the applicant in terms of a bar in entry to Australia for a period and the inability to apply for many categories of visa onshore.

32. Balancing discretionary factors, the Tribunal determines that it should not, in the circumstances, exercise its discretion to cancel the visa.

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

    DECISION

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

    David McCulloch
    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.