Singh (Migration)

[2020] AATA 1966

Singh (Migration) [2020] AATA 1966 (6 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Jasvinder Singh

CASE NUMBER:  1930207

DIBP REFERENCE(S):  BCC2019/3200891

MEMBER:  Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 March 2020 at 12:01 pm (VIC time)

DATE OF WRITTEN RECORD:                1 May 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 01 May 2020 at 4:56pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled at lower AQF level than visa requirement – medical conditions and study difficulty – no approach to education provider – enrolment in lower-level courses in different subject areas – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 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 6 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.

3. This is an application for a review of a decision dated 18 October 2018, made by a Delegate for the Minister for Home Affairs to cancel the applicant’s subclass 500 student visa under section 116(1)(b) of the Migration Act 1958.

4. The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a registered course at the same level as, or 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.

5. The applicant appeared before the tribunal on 6 March 2020 to give evidence and to present arguments. The tribunal also received oral evidence from the applicant’s elder brother, Mr Sukhraj Singh. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages.

6. For the following reasons the tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(b) of Schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition, under section 116(1) of the Act the visa may be cancelled.

8. The first question for determination is whether or not the applicant complied with condition 8202(2)(b). The examination of the delegate’s Decision Record notes the information for the Department indicated that the applicant’s visa was granted on 6 November 2018 for the purpose of the applicant undertaking a Master of Professional Accounting at the Federation University which, once completed, would provide a Level 9 Master’s Degree qualification.

9. The information available to the Department in the Provider Registration and International Student Management System (PRISMS) states that on 9 April 2019, the applicant’s enrolment in the Masters course was cancelled by the education provider.

10. On 8 May 2019, the applicant obtained an enrolment in a Certificate III in Painting and Decorating through Orange International College. That enrolment is at Australian Qualifications Framework Level 3.

11. The Notice of Intention to Consider Cancellation was sent to the applicant on 5 September 2019. By way of written response on 19 September 2019, the applicant responded to the Notice of Intention to Consider Cancellation. Whilst the content of the applicant’s response did not expressly agree that he had breached the relevant conditions, the applicant provided detailed reasons for his non-compliance.

12. At hearing, the applicant candidly admitted that he was aware that it was a breach of his visa condition to enrol in a course that is a level 3 Australian Qualifications Framework level course, in circumstances where his visa required him to be enrolled in the Master of Professional Accounting Degree, which is an Australian Qualifications Framework Level 9 course. The applicant gave evidence as to some health issues he suffered at the time when arriving in Australia. His health difficulties caused him great difficulty in his Master’s Degree upon his arrival in Australia.

13. Based upon the evidence before the tribunal, the tribunal is satisfied that the applicant breached condition 8202(2)(b) by not maintaining enrolment in an Australian Qualifications Framework Level 9 course, by enrolling in a course at level Australian Qualifications Framework Level 3.

14. Having found that the applicant has not complied with the condition of the visa, the tribunal must now consider whether the visa should be cancelled, and the matter specified in the Act or Regulations that must be considered in the exercise of the discretion.

15. The tribunal has had regard to the circumstances of this case, including matters raised by the applicant, the matters in the Department’s Procedures Advice Manual PAM3.

16. As to the applicant’s purpose for travel and stay in Australia, the tribunal takes into account an extensive written statement prepared by the applicant, most articulately, in preparation for this hearing. In that document, the applicant contends that he is a genuine student who wishes to pursue his academic goals in Australia. The tribunal accepts that evidence.

17. The tribunal accepts that the applicant came to Australia on 6 November 2018 for the purposes of undertaking a Master’s of Professional Accounting at the Federation University. As previously stated, that course is an AQF Level 9 course.

18. After some months in Australia, indeed in late 2018, it is clear, based on medical evidence produced to the tribunal at hearing, the applicant suffered debilitating medical conditions in November 2018, for which he attended hospital. The tribunal has had regard to various documents from the Casey Hospital, administrated by Monash Health, which clear indicate that the applicant was suffering from various health issues at the time which required him to be hospitalised. He was given painkillers to deal with various ailments he was afflicted with at the time. He gave cogent evidence that he was suffering from kidney stones at the time. And the tribunal accepts the evidence of the applicant that he faced medical difficulties in late 2018, early 2019 which made concentrating on the subjects in his Master’s degree extraordinarily difficult, and that he was unable to pass his exams in early 2019.

19. The applicant gave evidence that after he failed the exams he undertook in early 2019, he enrolled in a Certificate III in Painting. The Certificate III in Painting was several levels below the AQF level for which the visa was granted. The purpose of the applicant’s visa ceased in May 2019 when he ceased to be enrolled in a relevant Master’s degree.

20. The tribunal takes into account that the applicant took steps to re-enrol in the course at an Australian Qualifications Framework Level 8 level, being a Graduate Certificate in Management. It is apparent that the Graduate Certificate in Management course was due to commence on 26 April 2021. The tribunal notes that this is after the cessation of the applicant’s current visa period. The tribunal further notes that the Graduate Certificate in Management course is at an Australian Qualifications Level 8 and is therefore still not in compliance with the purpose for which the visa was granted, and that is for the applicant to study at an Australian Qualifications Framework Level 9 course. The tribunal takes into account the applicant’s good conduct in seeking to rectify the breach in question.

21. The tribunal also acknowledges that the applicant’s health has clearly contributed to the difficulty he suffered in attempting to pass the subjects in his Master’s degree. However, the tribunal cannot be satisfied that the applicant’s ill health was the reason he enrolled in the Level 3 course. The fact that he enrolled in a Level 3 course establishes that his health was not so dire as to prevent the applicant from being enrolled at all.

22. Based on the above, the tribunal is satisfied that the applicant has demonstrated that his primary purpose for being in Australia is for the purpose of study. The tribunal is satisfied that the applicant has demonstrated that he is a diligent student until ill-health befell him. However, it is clear that the purpose for which the visa was granted ended upon the applicant’s enrolment in the Australian Qualifications Framework Level 3 Certificate. I give this consideration some minor weight in favour of cancelling the visa.

23. As to the circumstances this ground for cancellation arose, the applicant gave detailed evidence at hearing, as I have set out, that he was suffering from ill-health at the time in late 2018, and was hospitalised for a period of three nights in November 2018, and he was still suffering from ill-health in 2019 which caused him to fail exams in his Masters of Accounting. He was worried that he would have to catch up on missed classes and tuition as a result of his ill-health.

24. The Tribunal cannot be satisfied, based on all the evidence set out above, that the reason for the downgrading of the course, being from a Level 9 course to a Level 3 course, was occasioned by the ill-health described by the applicant in the circumstances, notwithstanding that the tribunal wholly accepts the applicant’s evidence, that he suffered from the conditions that he suffered from, at the relevant time. The reason the Tribunal is not satisfied that the applicant’s ill health caused him to breach the visa condition, is due to the fact that he enrolled in a Level 3 course and attended those classes, which establishes that his health was not so dire as to prevent the applicant from being enrolled, or studying, at all. Given that the applicant acknowledges being aware of his visa condition, the Tribunal considers that it would have been reasonable conduct on the part of the applicant to seek a deferral of his course.

25. However, the applicant gave evidence that he did not seek a formal deferral of his studies at the time on account of his ill-health. He gave evidence that he did what he thought he could and that that was to enrol in another course. Even though he candidly and honestly acknowledged that he was aware the downgrading of the course from Level 9 to Level 3 was a breach of his visa, he felt he had no other choice in the circumstances. He also candidly and honestly informed the tribunal that he was not aware that it was incumbent upon him to contact the Department in relation to changing his visa in circumstances where he wished to change his course grade.

26. Based on those matters, whilst the tribunal acknowledges the applicant has indeed suffered ill-health, the tribunal is not persuaded that the ill-health in question was the cause of the breach of the visa. And based on the matters I have just set out, the tribunal cannot be persuaded that the reason for the breach of the condition in question was occasioned by matters outside of the control of the applicant. I give this significant weight in favour of cancelling the visa.

27. As to the extent of compliance with visa conditions, it is clear that the applicant has not complied with condition 8202(2)(b). It is clear, based on the matters that I have set out, that the breach has been ongoing since May 2019 when the applicant enrolled in a Certificate III course in Painting and Decorating.

28. Notwithstanding that the tribunal finds no bad faith on the part of the applicant for the breach of his visa conditions, the tribunal finds that the circumstances that led to the breach were reasonably within the control of the applicant. I give this some weight in favour of cancelling the visa.

29. Regarding the degree of hardship that may be caused if the visa remains cancelled, the tribunal takes into account all matters set out by the applicant in his oral evidence and in his written evidence that future hardship will befall him if his visa remains cancelled. The applicant has given evidence that he is a genuine student, that he desires a chance to complete his studies, that it would be a waste of time and money if he is not able to complete his studies presently and it will cause him some difficulty to return home in circumstances where he has not completed his studies.

30. The tribunal accepts all the evidence of the applicant in relation to the hardship that he may suffer as a result of the visa cancellation. The applicant’s brother gave evidence that he is also studying in Australia but his visa is not dependent on the applicant’s visa.

31. The tribunal acknowledges that the cancellation of the visa has led to some personal detriment and hardship for the applicant. On account of the hardship I have described, I give this some minor weight in favour of not cancelling the visa.

32. The applicant responded promptly to a Notice of Intention to consider cancelling the visa and there is no evidence before me to suggest the applicant has otherwise conducted himself in a manner that is undesirable with the Department, and I give this good behaviour some minor weight in favour of not cancelling the visa.

33. There are no persons in Australia whose visa would be consequently cancelled under section 140 of the Act as a result of the applicant’s visa cancellation. The tribunal therefore gives this factor no weight for or against cancelling or not cancelling the visa.

34. As to whether there are any legal consequences that flow from the cancellation of the visa, the tribunal acknowledges, if the visa were to be cancelled, the applicant would be excluded from making certain types of visa applications and may be liable to detention if he does not depart the country in due course. However, given the circumstances set out above in relation to the breach, the tribunal concludes that this would not be manifestly unfair as these are the intended consequences of the legislation. The tribunal gives this some minor weight in favour of the visa being cancelled.

35. Whether any international obligations, including non-refoulement, in the best interests of children is a primary consideration would be breached as a result of the cancellation, the tribunal notes those factors are not applicable to this case and I therefore given them no weight in favour of cancelling or not cancelling the visa.

36. It is clear that the breach does not reveal any bad faith on the part of the applicant. It is clear that he has given honest, reliable and credible evidence to the tribunal throughout the course of the hearing today. However, it is also clear, based upon matters I have set out above, that the reason for the breach of the visa was not occasioned by matters that were outside of the reasonable control of the applicant.

37. It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa being cancelled, and I so find. In viewing the circumstances as a whole, the tribunal concludes that the visa should be cancelled.

38. The tribunal affirms the decision of the delegate to cancel the applicant’s student visa.

39. This oral decision is made at 12.01 pm on 6 March 2020.

    DECISION

40. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member