Singh (Migration)

[2020] AATA 2774

Singh (Migration) [2020] AATA 2774 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Davinderjit Singh

CASE NUMBER:  1929774

HOME AFFAIRS REFERENCE(S):          BCC2019/3200321

MEMBER:T. Quinn

DATE:28 May 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 28 May 2020 at 2:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – life stressors – medical health condition – age of the applicant – opportunity to engage in 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. This is an application for review of a decision dated 14 October 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant has been in Australia since 1 November 2018 on a student (and associated bridging) visa and was granted the current visa on 28 October 2018 with an original expiry date of 9 December 2020.[1]  This visa provided a period of 25 months during which the applicant would be permitted to reside in Australia for the purposes of full time study.  The applicant is from India and initially came to Australia with the intention to study a Gradate Diploma and Master of International Tourism and Hotel Management.[2]

   [1]           See delegate’s decision.

   [2]           See delegate’s decision.

3. On the 26 August 2019, the applicant was issued with a Notice of Intention to Consider Cancellation (‘    NOICC’).

4. On 14 October 2019, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(b) of condition 8202 of his visa in that he failed to maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that was at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. [3]  The applicant did not comply with this condition of his visa from 12 April 2019 to 14 October 2019.[4]  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [3] As required by condition 8202(2)(b) of the Migration Regulations 1994 (‘the Regulations’).

   [4]           See delegate’s decision.

5. On 21 October 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

6. The applicant’s matter was listed before the Tribunal for 10 February 2020, however, on 6 February 2020, the applicant filed a medical certificate stating he was unable to speak due to a throat problem and requested an adjournment.  The applicant’s matter was re-listed before the Tribunal18 March 2020, however, on 16 March 2020 filed a medical certificate stating he had an acute sore throat and upper respiratory infection. 

7. On 27 May 2020, the applicant appeared via telephone hearing before the Tribunal to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The applicant was represented in relation to the review by his registered migration agent.

9. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal, including material provided on the day of the hearing.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    STATUTORY FRAMEWORK

11. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

12. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

13. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);

    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).

14. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course at the required AQF level.

15. The applicant was enrolled in a Master of International Tourism and Hotel Management at AQF level 9.  This enrolment was cancelled on 12 April 2019 and the applicant was not enrolled in a full-time registered course of study at AQF level 9 or above from that date until his visa was cancelled on 14 October 2019. 

16. The applicant acknowledged and accepted at hearing that there are grounds for cancellation.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

18. 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 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

19. Prior to his arrival in Australia, the applicant completed a Bachelor of Hotel Management.  He gave evidence and made submissions that his initial arrival in Australia was to undertake a Graduate Diploma and Master of International Tourism and Hotel Management but that he had delays obtaining his visa and arrived two weeks after the Graduate Diploma commenced and never felt able to catch up.  He also gave evidence that he faced adjustment issues in Australia – he could not find suitable accommodation upon arrival and did not have a support network.  He stated he requested a decrease in study load to two subjects but that his course provider denied this request.  He gave evidence that he became very stressed and that this in turn created stress for his parents which also then made the applicant’s stress worse.  The applicant gave evidence that he completed three subjects of the Graduate Diploma of International Tourism and Hotel Management but that he was unable to obtain his results for these as the course provider would not release them.  He gave evidence that upon cancellation of his enrolments in the Graduate Diploma and Masters of International Tourism and Hotel Management, he enrolled in a Certificate III in Painting and Decorating with course dates from 29 April 2019 to 31 January 2021 and a Graduate Diploma of Management (Learning) from 8 February 2021 to 6 February 2022.[5]  On the day before his hearing, the applicant also filed an offer of admission dated 18 January 2019 to a Master of Information Technology.  If the applicant had actually enrolled in this course, he would not have been in breach of the conditions of his visa.  When the Tribunal enquired as to why he did not enrol in this course, the applicant stated that he could not enrol in the course without a release letter from his previous course provider and that the course provider would not provide such release.  The Tribunal is puzzled by this evidence.  The applicant was able to obtain enrolment in a Certificate III and Graduate Diploma course, it puzzles the Tribunal that the applicant could not obtain enrolment in a Masters course at that time.  The applicant also stated in submissions and evidence that he still intends to complete a Masters level course but wished to pursue a Graduate Diploma as initially intended first.

    [5]The applicant has supplied confirmations of enrolments for these courses, reflecting these dates, however the creation date for such documents are 29 April 2019 and 2 May 2019 respectively.

20. The applicant gave detailed evidence in relation to the stress he faced upon arrival in Australia at 23 years of age.  He first sought medical assistance in December 2018 and has provided two medical reports dated 4 February 2019 and 11 February 2019 stating he was suffering from situational depression (in the former report) and that he was suffering from anxiety and depression, unable to sleep or concentrate, weight loss and does not have social or psychological support in Melbourne (in the latter report).  The applicant gave oral evidence that he is medicated for his mental health and sees the doctor every two months when his prescription runs out but has not sought counselling.  The Tribunal empathises with the challenges faced by the applicant on personal, psychological and emotional levels.  However, sickness of applicants and their family members are unkind life stressors that everyone must deal with at some point.  Non-Australian citizens on student visas in Australia are no exception.  Many student visa holders are forced to contend with such difficulties during their stay in Australia.  They are all burdened in a similar way in that they must deal with some degree of emotional turmoil while away from their families in their home country.  At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas.  Many such students are young adults, just like the applicant.  While the Tribunal accepts that the applicant suffered significantly from his arrival until February 2019 and required ongoing medication, it is difficult for the Tribunal to accept that the applicant’s mental health condition in April 2019 was such that it put his suffering into a category that goes to such an extent that it may have been a cause of him effectively doing nothing to get his studies back on track, particularly given his was able to obtain enrolment in an AQF Level 8 course around this time.  It is difficult for the Tribunal to accept that the applicant’s mental health was such that he could enrol in this course but not in an AQF level 9 course, in compliance with his visa conditions.

21. Upon questioning, the applicant gave evidence that he still intends to pursue a career in hotel management.  The Tribunal enquired as to why, then, he enrolled in a vocational level course in Painting and Decorating and the applicant stated he did not want to do nothing and he had always had an interest in art.  However, when the applicant was asked about his progress in this course, he said that when his visa was cancelled, he did not have any study rights and so did not engage with this course. 

22. The Tribunal further enquired as to why the applicant enrolled in a Graduate Diploma of Management (Learning) and seek enrolment in a Master of Information Technology which do not appear to be the obvious choices for a career in hotel management.  The applicant stated that with his Bachelor in Hotel Management and a Masters of Information Technology who could combine his skills to offer information technology support in a hotel job and that this would be successful given the number of international tourists visiting India and the fact that information technology in India is somewhat behind other countries.  Whilst plausible, this explanation still troubled by the Tribunal, particularly given the fact that a Master of Information Technology could have been selected by the applicant at the outset of his student visa application process and was not. 

23. The applicant was actually not enrolled in a registered course of study whatsoever for approximately two weeks between cancellation of his Graduate Diploma of International Tourism and Hotel Management and enrolment in the Certificate III in Painting and Decorating which is also a breach of his visa condition 8202.  The Department has not cancelled his visa on this basis, however.  It is reasonable to consider that the applicant could and ought to have ensured continuous enrolment.

24. The applicant stated that if his visa is cancelled, it will destroy his future and will affect his health which is not good at the moment.  He stated that his parents have invested a lot of their life income in his and his study in Australia and he does not want that to go to waste because of one mistake.  He stated his parents are stressed and so it will affect them and their health if his visa is cancelled.  He said he wishes to complete his study which was and remains the purpose of his residence in Australia and will make his future bright.

25. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia.  However, the applicant has only been onshore for eighteen months and has clearly not had a proper opportunity to engage with his intended study due to the limits on his study right during his cancellation period and the adjustment issues he faced upon arrival in 2018 – emotionally, practically and from a mental health perspective.

26. The purpose of the applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis.  The applicant repeatedly stated that he wished to undertake study in Australia and that was his primary purpose in remaining onshore.

27. The Tribunal considers the evidence against cancelling the applicant’s visa is greater than the evidence in favour of cancelling the applicant’s visa in the matters described in paragraphs 19-26.

    Circumstances in which ground of cancellation arose

28. The applicant’s submissions and evidence at hearing was that upon arrival in Australia in late 2018, he suffered practical, emotional and mental health issues – the latter of which have been ongoing and required medication.  The Tribunal empathises with the applicant and his family in relation to the stress they have faced.  Whilst the option to return to India to avoid breaching his visa conditions was always open to the applicant, the Tribunal also appreciates that doing this immediately upon arrival onshore would not have been something the applicant and his family would have considered.  The Tribunal considers that the circumstances faced by the applicant at a young age, when the study he was engaging with what not what he was expecting compared to the Bachelor Degree he completed in India, were to a great extent out of the applicant’s control and that he did take steps to try to change his study load in his initial Graduate Diploma and to enrol in a course, albeit it one AQF level lower than required.

29. The Tribunal gives some weight against cancelling the applicant’s visa in this regard.

    Extent of compliance with visa conditions

30. The Tribunal notes the applicant’s evidence that he has otherwise complied with student visa conditions and been a prudent student.  However, the breach of the condition associated with the current visa is not insignificant, being six months and in fact, the applicant was also breaching his enrolment condition for a short time in April 2019.  The Tribunal gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

31. When asked about this factor, the applicant gave the evidence set out in paragraph 24 above and such evidence was reiterated in oral submissions at hearing by the applicant’s representative. 

32. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

33. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

34. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition. 

35. On balance, the Tribunal gives some weight against cancelling the applicant’s visa in this regard.

    The visa holder’s past and present behaviour towards the Department

36. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department.  The applicant acknowledged and took responsibility for his mistake at hearing.  The Tribunal considers the applicant’s behaviour warrants some weight against cancelling the applicant’s visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

37. This is not relevant to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

38. If the current visa is cancelled, this will result in the following:

    a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act if they do not voluntarily depart Australia;

    b.the applicant will have limited options to apply for further visas in Australia pursuant to section 48 of the Act;

    c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

    The Tribunal gives little weight to this consideration in favour of the applicant because:

    ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·it reflects the seriousness with which the Department takes this type of cancellation ground;

    ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

    Australia’s international obligations

39. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

    Any other relevant matters

1. The Tribunal considers the factors for and against cancelling the applicant’s visa very finely balanced in this case.  Ultimately, the Tribunal deems it appropriate to give the applicant the chance he repeatedly sought at hearing – to engage with the study he initially arrived to undertake.  A big factor in the Tribunal’s decision has been the age of the applicant, only 23 at the time of his arrival, the adjustment issues he faced in this regard and the fact that the cancellation occurred so swiftly after his arrival that he has not had any real opportunity to engage in study onshore and demonstrate whether he is a genuine student.  The Tribunal notes that the applicant gave evidence he loves study and intends to study a Masters level course onshore to pursue a career in hotels or tourism.  Should the applicant conduct himself in such a way that the Department has cause for concern about his study and intentions onshore, the evidence he gave in connection with this case will clearly be relevant to any assessment his intentions and study behaviour in Australia.

   CONCLUSION

2. Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   T. Quinn
   Member