Singh (Migration)

[2019] AATA 2896

Singh (Migration) [2019] AATA 2896 (29 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravinder Jeet Singh

CASE NUMBER:  1905705

HOME AFFAIRS REFERENCE(S):           BCC2018/5561615

MEMBER:Damian Creedon

DATE:29 June 2019

PLACE OF DECISION:  Perth

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 29 June 2019 at 2:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – regression in level of study – consideration of discretion – satisfactory academic progress – reason for non-compliance – affected by personal difficulties – beyond the applicant’s control – acted reasonably – 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 28 February 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).

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the delegate’s decision record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 28 June 2019 to give evidence and present arguments. 

5. 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

1. Under s.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.

2. Relevantly, to this case, these include the ground set out in s.116(1)(b), that the Minister may cancel a visa if the Minister is satisfied that its holder has not complied with a condition of the visa. 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.

Did the applicant comply with Condition 8202?

1. On 8 May 2018 the applicant was granted a Student (Class TU Subclass 500) visa with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202 requires a primary student visa holder to maintain enrolment in a registered course, making it clear that this is a continuing requirement and that a student cannot change to a non-registered course.  Clause 8202(2)(b) requires the holder to maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualification Framework (AQF)[1] that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

   [1] The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree. See: >

   Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant was granted a Student (Class TU Subclass 500) visa on the basis of his enrolment in a Bachelor of Business which is an AQF Level 7 qualification. PRISMS shows this enrolment was cancelled on 31 August 2018 and that the applicant subsequently re-enrolled in a Diploma course AQF Level 5.  

2. At the hearing the applicant was given the opportunity to comment upon this information.  The applicant conceded in sworn evidence that the information in the decision record was correct and that he had cancelled his Bachelor or Business (at AQF Level 7) on 31 August 2018 and had re-enrolled in Diploma of Hospitality Management (at AQF Level 5).

3. Having regard to this information, the Tribunal finds that on 31 August 2018 the applicant ceased to be enrolled in a registered course that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which his visa was granted. The Tribunal finds that the applicant breached condition 8202(2)(b) of his visa.

4. 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

1. Having found that the applicant has not complied with a condition of his visa, the Tribunal must consider whether the visa should be cancelled. 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’.

Background

1. The applicant is a 23-year-old Indian national who first arrived in Australia on or around 14 December 2014 as the holder of a Student (subclass 573) visa.

2. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since his arrival in Australia he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
Certificate III in Commercial Cookery	14/03/2016	10/03/2017
Certificate IV in Commercial Cookery	13/03/2017	01/09/2017

1. PRISMS also records that the applicant commenced a Diploma of Hospitality Management on 11 September 2017 which he was due to complete in mid-2018 but the finalisation of which has been deferred on account of certain personal circumstances which will be outlined and discussed below.

Circumstances in which the ground of cancellation arose.

1. Central to the circumstances in which the ground of cancellation arose is an understanding of the applicant’s personal history, including before he arrived onshore to commence his studies.

2. The Tribunal discussed with the applicant his motives for choosing to study in Australia.  The applicant’s evidence to the Tribunal is that his decision to study in Australia was made under his father’s guidance.  He stated to the Tribunal that in June 2014 he made his first approach to an education agent in India, with his father’s support, to discuss the prospect of studying in Australia.  He stated that his father had completed his high school education in India which, at the time he completed it, was regarded as a sufficient qualification for career advancement.  He stated to the effect that now, however, there was a general recognition in India that higher education was necessary for a successful career and that his father’s “dream” was for his son, the applicant, to undertake higher education in Australia.  It was with these motives in mind that the applicant eventually applied to undertake a study pathway in Australia leading, ultimately, to a Bachelor of Business.  Unfortunately, however, the applicant’s father died just as the applicant’s study plans were crystallising, in July 2014.  The unexpected nature of his father’s death was, not unsurprisingly, a significant shock to the applicant.  Nevertheless, the applicant stated in his evidence, he was determined to pursue his father’s dream to undertake further study in Australia and he arrived onshore to commence his studies in December 2014.

3. The applicant stated to the effect that his initial period onshore was difficult for him: he stated that he experienced a “cultural shock” in adjusting to Australian social and study norms and in his attempts to successfully breach the language barrier.  The applicant stated to the effect that these issues negatively affected his already “sensitive” emotional state as he was still grieving his father’s death.

4. The applicant stated, however, that he eventually settled into his study pathway towards a Bachelor’s degree, completing his coursework, earning Certificate’s III and IV in Commercial Cookery and commencing and successfully progressing in his studies for a Diploma of Hospitality Management before being granted the Student (TU500) visa, the subject of this application, on 8 May 2018. 

5. The applicant stated, however, that his progress in his Diploma of Hospitality Management was interrupted by another family issue.  In describing his general family situation to the Tribunal the applicant stated to the effect that he was not close to his mother and that as a child he had lived with, and in large part been brought up by, his father and his paternal grandparents and that, consistent with his cultural norms, he was very close to his extended paternal family.  The applicant stated that in early 2018 his then 82-year-old grandfather’s health began to deteriorate culminating, in July 2018 with a diagnosis of a severe internal infection necessitating surgery.  The applicant provided documentary evidence from his grandfather’s nursing home in Jalandhar City in support of his claims in this regard.  For the privacy of those concerned it is unnecessary to set out the medical diagnosis in detail.  The applicant’s evidence is that this news from home had a “devastating” effect on him as he was very close to his grandfather who had played a key role in his upbringing.  His evidence is that his concern for his grandfather at this time diverted his attention from his studies and as a consequence he did not complete his Diploma of Hospitality Management on schedule, requiring him to extend the duration of his enrolment in the course. 

6. The applicant stated to the effect that the requirement to extend the Diploma had a “knock-on” effect on his intentions to commence his Advanced Diploma of Business[2] and his Bachelor of Business[3] resulting in the cancellation of both of those courses on 31 August 2018; the cancellation of the Bachelor’s degree being the issue which ultimately triggered the Department to send the applicant a Notice of Intention to Consider Cancellation (NOICC) on 4 February 2019. 

   [2] Which, had he successfully completed his Diploma of Business as scheduled, he was intending to commence on 9 April 2018 and complete on 15 March 2019.

   [3] Which, had he successfully completed his Advanced Diploma of Business as scheduled, he was intending to commence on 18 March 2019 and complete in December 2020.

7. The applicant responded to the NOICC on 8 February 2019.  The applicant’s response to the NOICC was brief, merely stating to the effect that he had corrected his enrolment status by “re-enrolling” in a Bachelor’s degree.  Understandably this response did not properly address the issues raised in the NOICC and the delegate decided to cancel the applicant’s visa on 28 February 2019.

8. In order to understand his brief response to the NOICC the Tribunal discussed with the applicant his personal circumstances at this time.  The applicant stated to the Tribunal that on 15 January 2019 his paternal uncle had been visiting Canada to participate in cultural traditions concerning his (that is, the uncle’s) son’s forthcoming wedding there.  The applicant stated that during this visit his uncle had unexpectedly died.  The applicant provided the Tribunal with a copy of a “Certificate of Death” issued by the Canadian Province of British Columbia in the name of “Amrik Singh Dubb”.  The date of death is 15 January 2019, the place of death is New Westminster, British Colombia and the deceased is described as a 61 year old resident of India.  The Tribunal has no reason to doubt the authenticity of this document or the matters it certifies.

9. The applicant’s evidence is that this tragic family event affected him severely, both emotionally and physically.  The applicant stated that his uncle was “the back-bone” of the family.  He stated to the Tribunal that he began to experience chest pains in the days after hearing the news of his uncle’s death and that he consulted his GP on 24 January 2019.  After undergoing ECG, Spirometry and other tests the applicant stated that his GP diagnosed him as having “severe tension”.  The applicant provided the Tribunal with documentary evidence confirming his consultation with his GP on 24 January 2019, and the tests undertaken.  Again, the Tribunal has no reason to doubt the authenticity of this document or the matters it evidences.  It is readily apparent that these family issues would have impacted the applicant, and, for present purposes, his attention to the NOICC, at this time.

10. The Tribunal observed the applicant in the delivery of his evidence.  The Tribunal’s assessment is that he did so candidly and with sincerity.  The Tribunal found the applicant’s consistency in the recounting of these events, and the documentary evidence he provided to corroborate them, persuasive.  The Tribunal considers that, after a challenging start to his study career in Australia, between March 2016 and mid-2018 the applicant was making good academic progress towards his goal of commencing his Bachelor’s level studies in March 2019.  The concurrence of his grandfather’s serious ill-health, beginning in early 2018, and the applicant’s distraction from his study pathway are not, in the Tribunal’s view, mere coincidence.  It was readily apparent from the applicant’s manner and presentation in giving his evidence that he feels a strong emotional connection with his family.  The Tribunal’s view is that the cancellation of his Bachelor’s degree was as a result of the “knock-on” effect of his slower than expected academic progress in mid-2018 which itself was influenced by his family situation at home.

11. Specifically, the Tribunal is persuaded that the key circumstance producing the cancellation was the applicant’s delay in completing his Diploma of Hospitality Management.   The Tribunal accepts that the cause for this delay was the applicant’s distraction from his studies, in turn caused by his grandfather’s ill health; the Tribunal also considers that, in the applicant’s case, the untimely death of his father so shortly before he commenced his studies in Australia, his closeness to his paternal grandparents, and his distance from the unfolding events in his home country likely multiplied the stressors he experienced at this time.

12. Whether these events may have been better managed is a matter of conjecture with the benefit of hindsight.  The Tribunal is persuaded that the circumstances that the applicant found himself in in mid-2018 were beyond his control and that he acted reasonably in dealing with them as they manifested.   The Tribunal places particular weight on this factor in his favour.

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

1. The applicant’s evidence to the Tribunal is that he wishes to continue his studies in Australia and to continue and complete his studies up to and including a bachelor’s degree.  He stated that he wishes to pursue a career in hospitality management in India and his choice is to continue his study in Australia.

2. The Tribunal does not regard this as a “compelling” need, though it does disclose a reasonable motive.  In all of the circumstances the Tribunal does not consider that this factor weighs either for or against the applicant.

The extent of compliance with visa conditions

1. The applicant was responsible for a breach pertaining to his visa.  His visa was granted in May 2018 and, despite completing some of his studies, his bachelor’s degree course and, consequently, his student visa were cancelled.  Ultimately it is for the applicant to take personal responsibility for managing his course requirements and visa obligations.  In all of the circumstances, however, the Tribunal gives less weight in this instance to cancelling his visa on account of the applicant’s particular circumstances.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. The Tribunal accepts that the applicant has invested financial resources in furthering his education in Australia.  Although he cited no particular hardships in his evidence to the Tribunal should his visa be cancelled, it was apparent from his evidence that the applicant feels a strong obligation to fulfil his late father’s wish regarding his education in Australia.  The Tribunal’s view is that not continuing his studies would exact a significant psychological and emotional toll on the applicant.

2. In all of the circumstances the Tribunal weighs this factor moderately in the applicant’s favour.

Past and present behaviour of the visa holder towards the department

1. The delegate noted the following in his decision record:

   There is no information before me to suggest he has been uncooperative with the Department or Departmental staff.

2. In the applicant’s particular circumstances the Tribunal is persuaded that his prompt, though brief, response to the NOICC was consistent with a willingness on his part to engage with the Department. 

3. The Tribunal weighs this factor slightly in the applicant’s favour.

Whether there would be consequential cancellations under s.140

1. There are no consequential cancellations under s.140; accordingly the Tribunal places no weight on this factor in the applicant’s favour.

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

1. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

2. There is nothing to indicate the applicant would not be able to return to India.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

Whether any international obligations would be breached as a result of the cancellation

1. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

Conclusion

1. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of his visa.  The Tribunal has found however that the circumstances in which the breach occurred were, ultimately, beyond his control and that he acted reasonably in dealing with them as they manifested.   The Tribunal places particular weight on these circumstances in the applicant’s favour.  When combined with the applicant’s recognition of his breach and his willingness to engage with the Department to resolve it, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

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

Damian Creedon

Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

…

1. (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.