Singh (Migration)

[2020] AATA 1626

Singh (Migration) [2020] AATA 1626 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amanjot Singh

CASE NUMBER:  1932548

DIBP REFERENCE(S):  BCC2019/3241150

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 March 2020 at 3:58 pm (VIC time)

DATE OF WRITTEN RECORD:                30 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 30 March 2020 at 11:11pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower level than visa requirement – study difficulty, stress, depression and aunt’s illness – enrolment in lower-level course in different subject area – remained enrolled and actively studying – no approach to original education provider or department – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 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 10 March 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 delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that once completed would 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.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the tribunal on 10 March 2020 to give evidence and reasons and present arguments.  The tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. 

5. For the following reasons the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. The issue in the present case is whether the applicant, the holder of a Student visa, has breached condition 8202(2)(b) of schedule A to the Migration Regulations 1994. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

6. Condition 8202(2)(b) states that:

   a.The 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.

7. In this case the applicant applied for and was granted his visa on 30 October 2018.  The visa was granted for the purpose of the applicant undertaking a Masters of Professional Accounting on 12 November 2018.  That course is an Australian Qualifications Framework level 9 course.

8. Information available to the department in the provider registration and international student management system indicated that on 5 March 2019 the applicant became enrolled in a certificate III in commercial cookery, a certificate IV in commercial cookery, and a Diploma in Hospitality and Management.  The certificate III in commercial cookery is an Australian Qualifications Framework level 3 course; the certificate IV in commercial cookery is an Australian Qualifications Framework level 4 course; and the Diploma of Hospitality Management is an Australian Qualifications Framework level 5 course. 

9. Prior to the applicant’s visa being cancelled the applicant gave candid evidence which the tribunal accepts, that he had passed the subjects that he was undertaking at that time in the certificate III in commercial cookery. 

10. On that basis the tribunal is satisfied that the applicant was not enrolled in the Australian Qualifications level 9 course at the time of cancellation of his visa.

11. As the applicant was not enrolled in a course at the AQF level 9 Master’s Degree or level 10 Doctorate Degree the circumstances of clause 8.02(3) do not apply to his case.

12. A notice of intention to consider cancellation dated 9 October 2019 was sent to the applicant. 

13. By written response on 14 and 22 October 2019 respectively the applicant provided detailed reasons for why his visa should not be cancelled. 

14. In the applicant’s response to the notice of intention to consider cancellation the applicant contended that the circumstances that led to his non-compliance with condition 8202(2)(b) were beyond his control, and he came to Australia with the intention to study a Masters of Professional Accounting.  A few months into the course he struggled with the content of the course and he was not passing the core modules.

15. Prior to coming to Australia to study his course he had been treated for clinical depression for which he provided a medical certificate to verify those claims.  He contended that his aunt was incredibly unwell with illness in his home country which added to the stress and difficulty of being in Australia.

16. He started his Masters in Professional Accounting on 12 November 2018 and realised shortly thereafter that he was having tremendous difficulty with completing the subjects in the course.  He changed his course level to a certificate III, certificate IV in commercial cookery and a Diploma of Hospitality to reduce the level of stress that he was feeling at the time, and to better utilise the finances of his parents, who were clearly funding his tuition at the time.

17. He has at all material times maintained the enrolment in a course of study and has not taken a break from his studies.  He has maintained course progress and attended in relation to the course in cookery in which he was enrolled.  He has not partaken in any criminal conduct or offended against persons of Australia throughout his time onshore.

18. He contended that the department ought not cancel his visa due to compassionate grounds, and that to enable him to have the chance to complete his education before returning home.  He also contended that any cancellation of his visa would not only have an impact on his own health, but on the health of his aunt who was gravely ill at the time.  He also described not wishing to return home in circumstances where he had not completed his studies and such that the work that he completed to date would be in vain.

19. At the hearing on 10 March 2020 the applicant gave candid and honest evidence that he acknowledged he had breached the visa condition and that he understood the downgrading of the course from a level 9 course to a level 3 course was in breach of his visa,

20. Based upon the evidence at hearing and the evidence set out in the response to the notice of intention to consider cancellation the tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as he did not maintain enrolment in a registered course the same level as, or higher level than, the registered course in relation to which the visa was granted.

21. Having found that the applicant did not comply with the condition of the visa, the tribunal must consider whether the visa should be cancelled.  There are no specific 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 at hearing and matters in the department’s procedures advice manual (PAM 3).

22. As to the reasons and purpose for the applicant’s travel and stay in Australia, the applicant’s visa was granted to him on 30 October 2018 for the purpose of study towards a Masters Degree being an Australian Qualifications Framework level 9 course.  When that course ceased on 9 April 2019 the applicant had already obtained enrolment on 5 March 2019 in his certificate III in commercial cookery and certificate IV in commercial cookery and then a Diploma in Hospitality Management. 

23. The highest confirmation of enrolment which the applicant had before the cancellation of his visa was at Australian Qualifications Framework level 5.  The applicant does not hold any current enrolment in a course or study that is at the same level as, or higher than, the registered course in relation to which the visa was granted.

24. The tribunal accepts that the applicant is clearly a diligent student.  It accepts that he has maintained enrolment in a registered course at all relevant times, and on the basis of the evidence I have just set out the tribunal is satisfied that the applicant’s primary purpose for being in Australia was for the purposes of study.  However, of significant note is the fact that the purpose for which the specific visa in this case was granted ceased on 9 April 2019 when the applicant ceased to be enrolled in his course at the AQF level 9, at which point the applicant’s purpose for being in Australia was no longer in line with the purpose for which the visa was granted.

25. The tribunal affords this weight in favour of cancelling the visa.

26. As to the circumstances in which the grounds for cancellation arose, the applicant gave detailed evidence at hearing entirely consistent with the statement that he provided in advance of the hearing which spoke to the reasons why he changed his course and why he was not in compliance with his visa conditions. 

27. The tribunal will not repeat the matters set out in the response to the notice of intention to consider cancellation, however, it takes those matters into account in considering the circumstances in which the grounds for cancellation arose.

28. The applicant gave concise, articulate and honest evidence at the hearing as to the medical difficulties he suffered before coming to Australia to study his course.  Those difficulties were supported by a medical certificate.  He spoke of the challenges of being in Australia at a time when there was illness on the part of his aunt residing at home in India which caused him tremendous stress.  He spoke of the challenges that he faced with not being able to pass the subjects in which he was enrolled and the consultation he had with the University at the time to try and assist him through his struggles in passing the subjects.  Indeed the applicant informed the tribunal candidly that the University put him on notice that he was not passing the subjects he was undertaking in his course, and that he approached the student support centre in an effort to rectify that situation.  However, after consulting the student support services he was still not passing his course, and then decided to change to the course in commercial cookery.

29. The applicant candidly acknowledged that he did not contact the Immigration Department to change his visa to the appropriate level course that he was studying.  He candidly acknowledged that he did not seek a deferral of his Masters Degree, and in those circumstances, the tribunal finds that it is reasonable conduct on the part of an applicant to make contact with the Department of Immigration to change visa status when one changes from a level 9 course to a level 3 course.  The medical troubles of the applicant and the stress of his aunt’s illness did not prevent him from taking those steps. 

30. The tribunal also considers that it is the responsibility of the visa holder to be aware of the conditions that attach to their visa and ensure compliance with conditions.

31. In the circumstances descried by the applicant in his evidence, both written and oral, the tribunal cannot be satisfied that the reasons that led to the breach of the visa conditions in this particular case were matters that were reasonably beyond the control of the applicant.  The reason for that finding is that the tribunal considers, based upon the evidence before it, it was reasonably within the power of the applicant to contact the Immigration Department to change the visa status and/or to seek a deferral of the Masters Degree while seeking to undertake a different course or regulate one’s visa status. 

32. The tribunal gives these maters significant weight in favour of cancelling the visa. 

33. As to the extent of compliance with visa conditions, it is clear that the applicant is not in compliance with condition 8202(2)(b) for failing to maintain enrolment in a AQF level 9 course or higher.  There is no evidence before the tribunal of any other non-compliance with any other visa conditions.

34. Given the time that has elapsed between the non-enrolment in the AQF level 9 course, being from April 2019 onwards, the tribunal considers this period of time to be reasonably significant and affords these matters some weight in favour of cancelling the visa.

35. As to a degree of hardship that may be caused to the applicant if his visa is to remain cancelled, the tribunal takes into account that the applicant will certainly experience some hardship if he is not able to complete his current course of study, that is, the certificate III and IV in commercial cookery.  However, the tribunal notes that the visa in question in this case does not permit the applicant to maintain enrolment in those courses because those courses are an AQF level 3 and 4.

36. The tribunal also takes into account the hardship that may be caused to the applicant’s family members if his visa is to be cancelled in the sense that he has clearly received funds from his parents to pay for his studies to date, and that that will cause him and his family a moderate amount of financial hardship if he is not able to complete his studies.

37. The tribunal takes into account the fact that the applicant has remained in Australia on a Bridging visa without travel rights while awaiting the hearing of this case.  The reason the tribunal takes that matter into account is that the applicant gave candid evidence that his aunt, who was unwell at the time of the decision to cancel his visa, passed away one month ago approximately and he was not able to travel to his home country to attend her funeral.  The applicant described the tremendous regret that will befall him if it becomes apparent that his visa cancellation will not be set aside and he did not return home in the circumstances to attend his aunt’s funeral. 

38. The tribunal takes those matters into account and places a little weight upon them in favour of not cancelling the visa.

39. The tribunal also takes into account the fact that the applicant has clearly suffered from some mental health concerns prior to entering into Australia, however, this illness occurred well before the breach of the visa condition and therefore the Tribunal does not consider that any mental health concerns contributed to the visa breach.

40. Based upon the circumstances in which the grounds for cancellation arose being within the control of the applicant, the tribunal affords any hardship suffered by the applicant some minor weight only in favour of not cancelling the applicant’s visa.

41. As to the applicant’s past and present behaviour towards the department, the tribunal notes that the applicant responded promptly to the notice of intention to consider cancellation and there is no evidence before me to suggest that the applicant has been uncooperative with the department or departmental staff.  The tribunal gives this factor a little weight against cancelling the visa.

42. The circumstances of this case are not such that any person’s visa will be consequently cancelled under section 140 of the Act.  The tribunal therefore does not give this factor any weight for or against the decision to cancel or not cancel the applicant’s visa.

43. If the visa is cancelled the applicant will become an unlawful citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia.

44. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain types of visas while in Australia.  However, these are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were reasonably within the control of the applicant I do not consider these factors to be manifestly unfair and the tribunal gives this very little weight in favour of not cancelling the visa. 

45. There is no evidence before the tribunal to indicate the applicant has children in Australia nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations.  As there is no evidence before me in relation to these matters I’m not able to give any weight for or against cancelling or not cancelling the visa for this consideration.

46. As to whether there are any other relevant matters, the tribunal takes into account the applicant’s candid evidence in this proceeding in its totality in which the applicant has candidly admitted the breach of his visa in question.  He has candidly informed the tribunal that he wishes to complete his studies, that he is a genuine student, and that he would have tremendous regret at not being able to attend at his aunt’s memorial in circumstances where he was waiting in Australia for a determination in respect of this visa application.  The tribunal takes these matters into account and affords them some little weight in favour of not cancelling the visa.

47. Although the matters set out above clearly do not reveal any bad faith on the part of the applicant it is clear based on all the evidence before me as set out, that the reasons for the breach of the visa conditions were not matters that were outside of the control of the applicant.  It is also clear that the considerations I have arrived at on examining and weighing all the evidence before me lean towards the visa being cancelled and I so find.

48. Considering the circumstances as a whole the tribunal concludes that the visa should be cancelled.

49. The tribunal affirms the decision to cancel the applicant’s (Class TU) Student visa. 

    DECISION

50. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member