Singh (Migration)

Singh (Migration) [2019] AATA 2386 (24 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gurjent Singh
CASE NUMBER:  1822442
HOME AFFAIRS REFERENCE(S):           BCC2018/1315385
MEMBER:T. Quinn
DATE:24 June 2019
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 24 June 2019 at 3:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – failed five subjects – academic progress– circumstances in which the non-compliance occurred – non-payment of tuition fees – severe financial difficulties – cost of mother’s medical treatment – culturally bound by father’s instructions – poor advice from migration agents – 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

This is an application for review of a decision dated 30 July 2018 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 of the Migration Act 1958 (‘the Act’).
The applicant has been in Australia since January 2014 on student (and associated bridging) visas and was granted the current visa on 18 April 2017. The applicant is from India and came to Australia with the intention to study and obtain skills in Australia in order to improve his employment prospects in his home country, specifically in the field of Information Technology.[1]
[1]See applicant’s submissions filed with the Tribunal at page 66 of the Tribunal File and applicant’s evidence at hearing.
On 30 July 2018, 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 been enrolled in a registered course of study[2] since 4 October 2017. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
[2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
On 4 August 2018, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.
The applicant was assisted in relation to the review by their registered migration agent.
The applicant’s matter was listed for hearing on 17 June 2019, however, the applicant requested an adjournment as his migration agent was only recently appointed and unwell. This adjournment request was granted.
The applicant appeared before the Tribunal on 24 June 2019 to give evidence and present arguments.
The Tribunal hearing was arranged with an interpreter in the Punjabi and English languages but there was some confusion surrounding why there was an interpreter as the applicant had specifically called the Tribunal to notify it that he did not require an interpreter. The Tribunal asked the applicant which language he would prefer to proceed in and he said English. The Tribunal asked the applicant whether he would like the interpreter to remain in the room for the duration of the hearing in case he required his services and the applicant said he did not want the interpreter. The interpreter therefore left the hearing shortly after its commencement
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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
STATUTORY FRAMEWORK
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.
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?
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: 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).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.
The applicant was enrolled in, commenced and completed a Diploma of Information Technology at Victoria University in 2014.
The applicant was enrolled in and commenced a Bachelor of Information Technology at Victoria University in early 2015. He commenced 15 subjects and completed passed 10. It is clear from his academic transcript that he did engage with at least 4 of the subjects he failed but did not pass same. The applicant’s confirmation of enrolment (‘COE’) was cancelled on 4 October 2017 and he was not enrolled in a full time registered course of study from that date until his visa was cancelled on 30 July 2018.
The applicant has at all times acknowledged and accepted that there are grounds for cancellation.[3]
[3] See submissions from the applicant and applicant’s evidence at hearing.
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
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
The applicant gave evidence that he came to Australia immediately following completion of his High School studies in India in 20113. He explained that his sole intention in coming to and studying in Australia was to obtain a Bachelor Degree in Information Technology. The applicant successfully completed his Diploma of Information Technology and commenced his Bachelor of Information Technology. He undertook these studies with the same course provider, Victoria University.
The Tribunal enquired about why the applicant failed five subjects of his Bachelor’s Degree and he said that he was around friends who were going out a lot and he started to go out a lot but then got back on track and focussed on his studies. The Tribunal notes that three of the five failed subjects occurred in the first semester of 2015 and that the applicant’s most recent semester indicates three passed subjects and one fail.
The applicant’s evidence at hearing was that his mother had heart problems in late 2017 and that his father, who was financially supporting him, had to spend significant funds on his mother’s medical appointments and treatment. He has provided medical documents which corroborate the evidence that his mother had hypertension and arthritis in late 2017 and early 2018. The applicant explained that there is no Medicare system in India and no medical insurance and this was expense, his father was ‘broke’ and so they could not afford his tuition fees in Australia. Because of her health problems, the applicant and his family decided not to tell his mother about the visa cancellation.
The applicant gave evidence that he wishes to complete his Bachelor of Information Technology in Australia and then return to India to seek employment in that field there.
The applicant stated that if he cannot remain in Australia and complete his studies he will not get any credit for the study he has undertaken in Australia, will have to commence a degree from scratch in India and may have difficulty gaining admission due to the lengthy gap in his study history. He explained that his father is retiring in three years and as the oldest son he is obliged to support his family and give back. He was emotional when detailing the fact that he has been onshore for five years and would be ashamed to return without a Bachelor level qualification, particularly given the fact that his father has spent in excess of $50,000AUD for the study he has undertaken so far. He also stated that his employment prospects would be severely impacted without a Bachelor Degree and that his mother would not cope upon hearing that his visa was cancelled, that he has not been able to obtain a Bachelor Degree and that they have kept his circumstances a secret from her.
The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this alone constitutes a compelling need to remain in Australia. The Tribunal accepts the applicant does wish to study. The Tribunal also notes that the applicant’s mother’s health is likely to be in a fragile state, having recovered from her heart related problems in April 2018. The Tribunal considers this factor is finely balanced and that the evidence against cancelling the applicant’s visa is slightly greater than the evidence in favour of cancelling the applicant’s visa in the matters described in paragraphs 19-23.
Circumstances in which ground of cancellation arose
As detailed above, the applicant’s financial capacity to meet his tuition fees was severely impacted when his mother became ill in late 2017. Consequently, his father could not pay his tuition fees and his enrolment was cancelled. The Tribunal enquired about why the applicant did not return to India at this time, to ensure he was not in breach of his student visa conditions. The applicant stated that his father insisted he remain onshore and that he understood there may be negative consequences but that he (the applicant) must remain in Australia and that his father would take care of matters in India. The Tribunal was troubled by this evidence but also acknowledges that at this time, the applicant was only 22 years of age and culturally likely to be bound by what his father instructed.
The applicant provided a document titled ‘Respected Member’ to the Tribunal and his migration agent also filed submissions titled ‘Information for Australian Tribunal Review for Case number: 1822442). These documents, along with the applicant’s evidence at hearing explained that the applicant was given incorrect information from two migration agents in relation to the Notice of Intention to Cancel which he received in July 2018. The applicant was able to give detailed evidence in relation to his interactions with these agents and it was consistent with the time of documents which he had filed with the Tribunal. The Tribunal accepts that the applicant was given advice that he did not need to respond to the Notice of Intention to Cancel his visa and that the cancellation was inevitable and that he did not respond to the Notice because he believed and was following the advice given. It is unfortunate that such advice has been given.
The applicant said that he did approach Victoria University and explained what had occurred and that he also approached Victoria Institute of Technology to request an enrolment but that both institutions told him he could not obtain an enrolment with them. The Tribunal asked whether the applicant tried to enrol with a different course provider and he said he had not.
The Tribunal asked whether Victoria University would accept the applicant if he was successful before the Tribunal and his agent indicated that she would act on his behalf to first try to secure enrolment with Victoria University but if that was not successful she would seek enrolment at a number of alternative institutions, listing a number of same by name.
The Tribunal accepts that the applicant’s family faced serious financial difficulties in late 2017 and early 2018. The Tribunal enquired about how it is that the applicant’s father now has enough money to support him (the applicant) financially. The applicant stated that his mother’s health began to improve when she started yoga in April 2018 and that by June 2019 his father was in a financial position to support him in his studies here.
The Tribunal found the applicant’s evidence persuasive and considers he genuinely wishes to complete his studies and return to his home country to fulfil his obligations within his family.
The Tribunal empathises with the applicant’s personal and financial circumstances in 2017 and 2018, including the fact that his mother’s health and father’s financial situation were out of the applicant’s control. The Tribunal gives weight against cancelling the applicant’s visa in this regard. However, the applicant’s visa was not cancelled until July 2018 and the Tribunal considers that from June 2018, the applicant could have taken steps to ensure he was meeting the conditions of the current visa.
Extent of compliance with visa conditions
The Tribunal notes the applicant’s evidence that he has otherwise complied with all previous student visa conditions, the Tribunal does note, however that the Academic Transcript for his Bachelor Degree appears to indicate that he did not undertake any study in the first semester of 2017 and that failing five subjects may be considered not making adequate course progress. Further, the breach of the condition associated with the current visa is extensive, being nine months. The Tribunal considers this a significant breach and 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
The Tribunal refers to paragraph 23 above in this regard and the future study, employment (and therefore, financial) consequences as well as the personal consequences within his family the applicant will face if his visa is cancelled. The Tribunal appreciates the concern for his mother’s reaction held by the applicant.
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.
The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.
The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment. Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach. The Tribunal finds that the factors for and against cancelling the visa in this regard are finely balanced and considers those against cancelling slightly more weighty in the circumstances.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this 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
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
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;
b.the applicant will have limited options to apply for further visas in Australia;
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.
I give 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
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
The applicant presented as honest to the Tribunal and has completed a significant amount of his degree with Victoria University. His submissions were that if his visa is cancelled he will lose the benefit of the time and money spent in order to complete such a significant amount of his degree. He made submissions in relation to the fact that he has not changed his career or study pathway since his arrival; he has not elected for short, inexpensive course providers, but pursued study with a quality education provider which has come at great expense to his family. The Tribunal acknowledges these submissions in coming to its decision.
CONCLUSION
Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.
DECISION
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

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

[2019] AATA 2386

24 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice