Sharma (Migration)

Sharma (Migration) [2020] AATA 4764 (5 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amit Sharma
CASE NUMBER:  1931169
HOME AFFAIRS REFERENCE(S):          BCC2019/3241188
MEMBER:Stephen Conwell
DATE:5 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 500 (Student) visa.

Statement made on 05 August 2020 at 2:23pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –breached condition 8202– applicant has not maintained enrolment in a registered course– misleading advice from a migration agent– applicant has taken substantive steps to secure study rights – emotional and financial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 November 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).
The delegate cancelled the visa on the basis that that the applicant failed to maintain enrolment in a registered course that once completed would provide a qualification from the Australian Qualifications Framework (AQF), at the same level as or at a higher level than the registered course in relation to which the visa was granted. As a consequence the applicant had breached condition 8202 of his 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.
The applicant was represented in the review hearing by his authorised migration agent (agent).
A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The Tribunal exercised its discretion to hold the hearing by telephone. The applicant participated in the telephone hearing on 14 July 2020 to give evidence and present arguments. The Tribunal also received evidence from Ms Claire Rigby, a witness for the applicant. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The hearing was held during the coronavirus (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 its objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by phone.
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
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.
Did the applicant comply with Condition 8202?
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 full-time registered course: 8202(2)(a)
·subject to subclause (3), must maintain enrolment 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: 8202(2)(b); and
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course at the same level as, or at a higher level than, the registered course for which the visa was granted.
As the applicant is not enrolled in a course at the AQF Level 9 (Master’s Degree) or Level 10 (Doctoral Degree), subclause 8202(3) does not apply to him.
The applicant was granted a Subclass 500 (Student) visa on 7 May 2018 for enrolment in a Bachelor of Business (Management) at Cambridge International College for the period from 28 May 2018 to 16 May 2021. The bachelor course is the highest Confirmation of Enrolment (‘COE’) for which the visa was granted, and once completed, would provide a Level 7 (Bachelor Degree) qualification from the Australian Qualifications Framework (AQF).
As noted in the decision record, the applicant is not a Defence, Foreign Affairs or secondary exchange student and therefore condition 8202(2)(b) attached to his visa. Condition 8202(2)(b) states that visa holder must maintain enrolment 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.
By Notice of Intention to Consider Cancellation (NOICC) dated 9 October 2019, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that his enrolment in the bachelor course was cancelled by the education provider on 26 October 2018 due to “student notifies cessation of studies” and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.
The applicant provided a written response to the NOICC via email on 15 October 2019, which is summarised below:
·      the applicant claims that he “misunderstood the [sic] condition 8202”. He was not aware that he had to maintain enrolment of his bachelor course. He concedes this was a careless mistake for which he sincerely apologises;
·      after arriving in Australia, he struggled in his first semester of his business studies. During a hospital consultation he struck up a conversation with a male nurse and began to see nursing as an alternative career option for himself.
·      he contacted several education providers seeking to enrol in a Bachelor of Nursing, such as La Trobe University and Australian Catholic University (ACU), however administrative delays and lack of available placements meant that he was not able to enrol in at bachelor level. Instead he enrolled in a Diploma of Nursing at Southern Cross Education Institute (SCEI);
·      as a consequence he was not enrolled in a bachelor course (AQF Level 7) at the time that the NOICC was issued;
·      he claims that he took “an irrational decision due to [his] negligence and misunderstanding” of the visa condition”;
·      obtaining Australian nursing qualifications will enable him to work as a registered nurse in India;
·      he extols the academic as well as cultural benefits of studying in Australia rather than in his home country of India;
·      he and his family “will face a huge setback” and financial loss if his Student visa is cancelled;
·      he claims that he took reasonable steps to enrol into a Bachelor’s degree course at several educational institutes but was unable to secure a place;
·      he seeks a second chance to finish his studies in Australia as it will improve his career prospects upon returning to India.
In support of his statement, the visa holder provided to the Department:
·several medical certificates regarding his irritable bowel condition;
·a copy of statement of academic results from his enrolment in a Bachelor of Business as of 23 October 2018;
·a list of components completed of theoretical/practical requirement in Diploma of Nursing
·a “screenshot” from his mobile phone of response to his enquiry by Southern Cross Education Institute
·another “screenshot” of his application submitted for enrolment in a Bachelor of Nursing.
The applicant provided a written response to the Tribunal in which he repeats much of the history of events as set out in his reply to the NOICC. It also addresses the criteria of a Genuine Student in a similar manner to his reply to the NOICC. Also submitted to the Tribunal were the documents previously provided to the Department.
The applicant’s oral evidence at hearing is summarised below:
·prior to arriving in Australia he had completed a three-year Diploma of Civil engineering at a college in his home country of India;
·he first arrived in Australia in October 2013, on a sub class 573 visa, commencing his studies with an ELICOS English course leading to a Bachelor of Civil Engineering at Victoria University;
·he confirmed that the purpose for him coming to Australia was to study;
·he is one of three siblings - his two sisters are married and both they and their parents live in India. He has an uncle and cousins in Melbourne who are all Australian citizens. Currently he lives with his adult cousin and friends in rental accommodation. He is currently single though he has formed a relationship with a girl in India over the past 12 months;
·his living and study cost in Australia are financed by his family and by his part-time work. He has worked part-time in several capacities whilst onshore in accordance with his visa conditions;
·shortly after completing his ELICOS in December 2013, he decided he did not wish to proceed with his bachelor studies and at his request his Confirmation of Enrolment (COE) was cancelled, as at that point he claims he was intending to return to India;
·however the applicant did not return to India, instead he enrolled in the Vocational Educational and Training sector (VET) sector, completing a Certificate III in Painting and Decorating course in 2015;
·he then enrolled in a Diploma of Building & Construction at Della Institute College between 2015-2017 which he completed;
·on 7 May 2018 he was granted a subclass 500 Student Visa for the purpose of studying an Advanced Diploma of Business leading to a Bachelor of Business (Management) at Cambridge International College for the period 28 May 2018 – 16 May 2021;
·on 24 October 2018 he enrolled in a Diploma of Nursing at the Southern Cross Education Institute (SCEI) and two days later, on 26 October 2018 his enrolment in the bachelor course was cancelled by Cambridge International, his education provider;
·he confirmed that he had not attempted to contact the Department or Cambridge International either before or after his change of enrolment, regarding the visa implications of his change of enrolment to the VET sector. He acted upon advice from friends and upon discovering his passion for a career in nursing;
·he claims that he acted upon misleading advice from a migration agent that under his visa conditions he could enrol in VET studies and then return to his bachelor studies at a later date;
·he sought to gain enrolment in a Bachelor of Nursing at several education providers, including Latrobe University, Australian Catholic University (ACU) and SCEI. He was unsuccessful due to the unavailability of places so he therefore accepted enrolment in the Diploma of Nursing at SCEI;
·since SCEI only offers nursing studies to diploma level, he hopes to then transfer to a Bachelor of Nursing at a different education provider;
·prior to arriving in Australia, upon completion of his Diploma in Civil Engineering, he worked for seven months as a civil engineer, which he did not find enjoyable;
·when asked by the Tribunal if there were compelling reasons for him to remain in Australia, the applicant’s reply was that as the only son in the family it would be a great disappointment to the family if he was unable to obtain Australian qualifications;
·he stated that he hasn’t dared to think of his options should his visa remained cancelled, as he is hopeful of being granted a second chance to complete his studies onshore;
·he is enjoying his nursing studies and feels that it is a more suitable career for him than engineering.
The applicant explains that he hopes to establish a career in the nursing sector in India after obtaining Australian qualifications.
The applicant concedes that he breached visa condition 8202 but that his breach was unintentional and in reliance of the advice he received from his previous migration agent. His oral advice at hearing also admitted the breach of condition 8202.
Having regard to the information in PRISMS as outlined in the decision record and the applicant’s own admissions, the Tribunal finds that once his enrolment in the bachelor course was cancelled, the applicant was in breach of 8202(2)(b) as he failed to maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted. The Tribunal finds that he breached condition 8202(2)(b) of his visa.
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 to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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.
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 the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘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 to or remain in Australia
The applicant was granted a Student visa to travel to Australia. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. According to his PRISMS record, the applicant fell in breach of 8202(2)(b) from 26 October 2018 when his enrolment in the bachelor course was cancelled as he failed to maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted. However the Tribunal notes that two days earlier, on 24 October 2018, he enrolled in a Diploma of Nursing studies (AQF Level 5). This is an indication the applicant was promptly seeking to continue his studies, albeit he was acting on misleading advice from a migration agent regarding the applicability of his visa conditions to his change of enrolment.
Based upon the matters set out above, the Tribunal is satisfied that the applicant has established that his primary purpose for being in Australia is for the purpose of study. There is evidence that the applicant has made several attempts to secure study rights whilst on his current Bridging visa E. His first request was granted and he was afforded three months study rights, however his subsequent requests have been denied. The Tribunal finds that the applicant was actively seeking to pursue his studies and gives this factor some weight towards exercising its discretion to set aside cancellation of the visa.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2)(b). The applicant has offered a consistent explanation to both the Department and the Tribunal for the breach. He provided evidence of a work history onshore which appears to be in compliance with his visa conditions. There is no evidence before the Tribunal as to his non-compliance with other visa conditions.
Whilst the Tribunal find that the applicant did breach the condition, given the circumstances of the breach, the Tribunal gives this factor some weight towards exercising its discretion to set aside cancellation of the visa.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence as to the hardship he will suffer if his visa is cancelled. He Is one of three siblings; as the only son he feels considerable pressure to not disappoint his parents by failing in his overseas studies. Should the applicant not be able to complete his studies in Australia, he would also have difficulty trying to re-enter the university stream in India due to the several years he has spent pursuing studies in Australia.
Based on the matters set out above, the Tribunal accepts that the cancellation has caused emotional and financial hardship for the applicant, which will undoubtedly be compounded by the continuation of the cancellation of the visa and the Tribunal gives this factor some weight towards the visa not being cancelled.
circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The Tribunal has considered the circumstances in which the ground for cancellation arose. There was no evidence submitted in support of the applicant’s claim to have received misleading advice from his migration agent at the time, and in acting upon that advice, he fell in breach of his visa conditions. At any rate, the Tribunal considers that visa applicants are ultimately responsible for complying with their visa conditions and therefore they should take an active and conscientious interest in the conditions of their visa. However the Tribunal has had the benefit of hearing from the applicant and the witness. The Tribunal found the applicant to be a credible witness who seems genuinely remorseful for breaching his visa condition.
The Tribunal can discern no attempt by the applicant to avoid study, mislead his educational provider or the Department. The Tribunal also places weight on the oral evidence of the witness, Ms Rigby regarding the enthusiasm and aptitude that the applicant has displayed in his diploma of nursing studies.
The Tribunal has regard to the medical certificates provided in support of the applicant’s response to the NOICC. Whilst the Tribunal accepts that the applicant suffers from an intestinal condition which requires some ongoing medical attention, it is not satisfied that his medical condition was a primary or contributory factor which prevented him from maintaining enrolment in a registered course of study. Further there is no evidence that the applicant had sought approval from his education provider to adapt or defer his studies on medical grounds.
Having considered the written submission and having the benefit of the applicant’s oral evidence the Tribunal is satisfied that the applicant is a genuine student who has unfortunately fallen in breach of a visa condition through his misunderstanding of his visa conditions or through reliance upon misleading advice from a migration agent. The Tribunal finds that the circumstances in which the ground for cancellation arose were not beyond the applicant’s control, however the Tribunal accepts that the applicant did not intentionally commit an error or breach of his visa conditions and that he was not aware the breach until he was served with the NOICC.

The Tribunal give this factor significant weight towards exercising its discretion to set aside cancellation of the visa.
past and present behaviour of the visa holder towards the Department
The applicant appears to have communicated promptly and truthfully with the Department. The Tribunal give this factor some weight towards exercising its discretion to set aside cancellation of the visa.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. The applicant may also be barred from returning to Australia for up to three years. He has presented no specific evidence in relation to this factor. However given the applicant’s personal circumstances as set out above, the Tribunal give this some weight in favour of exercising its discretion to set aside cancellation of the visa.
whether there would be consequential cancellations under s.140
The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.
Whether any international obligations would be breached as a result of the cancellation
This consideration does not appear to be relevant and the applicant has not made any claims in relation to it.
Any other relevant matters
The Tribunal finds that there are no other relevant matters.
Summary
The Tribunal is mindful of the lengthy period of non-compliance and the seriousness of the breach, however having considered the evidence individually and cumulatively, the Tribunal finds on balance there are persuasive reasons why it should exercise its discretion to set aside cancellation of the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
The applicant should be aware that the Tribunal reached this decision only marginally in his favour.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Stephen Conwell
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.

[2020] AATA 4764

5 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction