Singh (Migration)

[2019] AATA 1683

Singh (Migration) [2019] AATA 1683 (23 May 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Arshdeep Singh

CASE NUMBER:  1826802

HOME AFFAIRS REFERENCE(S):          BCC2018/1916309

MEMBER:  Mark O'Loughlin

DATE:  23 May 2019

PLACE OF DECISION:  Adelaide

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 23 May 2019 at 10:28am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – course at lower level than which visa was granted – consideration of discretion – did not receive notice of intention to cancel from the Department – took steps to mitigate non-compliance immediately – continue to study while on bridging visa – letter of offer for a course at Bachelor degree level – 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 29 August 2018 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).

1. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 that was imposed on his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

1. The applicant appeared before the Tribunal on 16 May 2019 to give evidence and present arguments.

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

Did the applicant comply with Condition 8202?

Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2).

1. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

1. In his evidence the applicant said that he was studying a Diploma of Health Science which was to lead to a Bachelor of Nursing at the University of South Australia. The Tribunal accepts this evidence.

1. He said that he had some difficulties with the course as it was the first time he had lived away from home and he found it difficult to concentrate on his studies. The Tribunal accepts this evidence.  The applicant also said that he had difficulty relating to the Health Science course which did not seem to bear any relationship to the calling of nursing. He said he is familiar with nursing as a career because his mother and Auntie are nurses. The Tribunal does not have any other evidence than the applicant’s oral evidence before it in respect of this and is not satisfied that the course was not related to the calling of Nursing.

1. The applicant gave evidence that he decided to change to a course that was closer to nursing and after about 6 months of the Diploma of Health Science he changed to a Diploma in Nursing at an institution called Equals. That was in about October 2017. The Tribunal accepts this evidence.

1. He conceded that at that time he assessed himself as likely to fail the Diploma of Health Science course and risk having his enrolment cancelled.

1. When the applicant withdrew from the Diploma in Health Science, he also withdrew from Bachelor of Nursing at the University of South Australia. He says, and the Tribunal accepts, that he did not understand this and had been told by an agent that he would not compromise his visa by making this change.

1. The Diploma of Nursing in which he enrolled was not, for the purposes of the Australian Qualifications Framework, at the same level or higher than the Bachelor of Nursing which was the registered course in relation to which the applicant was granted the visa.

1. On the evidence before the Tribunal, the applicant was not enrolled 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. Accordingly, the applicant has not complied with condition 8202(2) and in particular 8202(2)(b).

Consideration of discretion / conclusions

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with a condition of the 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’

1. The applicant gave evidence that his migration agent led him to believe that he would not compromise his visa status by leaving the Diploma in Health Science and enrolling in the Diploma in Nursing and that he remained on course for a Bachelor level degree. The Tribunal accepts this evidence.

1. The applicant was asked why he did not respond to the notice of intention to cancel the visa and make some sort of effort to approach the department and explain his situation.

1. The applicant said that he did not receive the notice of intention to cancel his visa and that the email address that the department had used was wrong.

1. There is some support for that in the departmental file. The applicant had been contacted by the department to ascertain his email address on two separate occasions and on each occasion a note was made of the same, incorrect, address.

1. It is not clear whether the error was made by the applicant in giving his address or by the representative of the department in transcribing it but the Tribunal finds that an innocent error was made and that the applicant was not in fact aware of the intention to consider cancellation of his visa, even if relevant procedures were complied with by the Department.

1. In making this finding the Tribunal has regard to the fact that when the cancellation was brought to the applicant’s attention he acted immediately by contacting the department. The Tribunal notes that his actions were not those of a person who is trying to avoid contact with the department.

1. The applicant gave evidence, which the Tribunal accepts, that he was not aware that his visa had been cancelled until he was advised by his college.

1. He further said, and the Tribunal accepts, that he arranged for study rights on his bridging visa as quickly as he could and continued to study the Diploma in Nursing.

1. He gave evidence that he has a letter of offer from Torrens University for a place in the Bachelor of Applied Public Health and that he proposes to enrol in that course as soon as a decision is made not to cancel his visa. He said, and the Tribunal accepts, that he is not able to accept the offer of enrolment until his visa is restored. This enrolment conditions on the third page of the letter of offer confirm this.

1. The applicant’s evidence was that at the time of the hearing he had 2 weeks of his placement left to complete and that once he had his diploma and a further English qualification he would be entitled to registration as a nurse. The Tribunal accepts this evidence.

1. He said that he wants to augment his qualification with the Bachelor in Applied Public Health which he says will help him in that area. The applicant has not provided the Tribunal with any other evidence in support of his statement that the Bachelor course will be of relevance and assistance to him in pursuing a career in Nursing in India.

1. He said that he would like to work for an NGO in India but that a Bachelor degree would make him a much more attractive candidate for such work. He further said that his father’s friends are working in the community for the benefit of the poor and he believes, from his discussions with them, that a Bachelor’s degree will help him find work in that area.

1. The Tribunal accepts that the applicant is likely to find it easier to find employment with a Bachelor’s degree.

1. There is no evidence to suggest that the applicant has a compelling need to travel to or remain in Australia other than to complete his studies.

1. The Tribunal finds that the period during which the applicant was not enrolled in a relevant degree is lengthy being over 19 months and continuing. The Tribunal accepts that the applicant was not aware of his breach until the cancellation of his visa and that he has not been able to enrol in a course that would remedy that breach.

1. The Tribunal accepts the applicant’s evidence that he is likely to be caused emotional and financial hardship if his visa is cancelled.

1. The Tribunal finds that the applicant changed courses, giving rise to the ground of cancellation, for two reasons. The first was that he did not realise that the transfer would result in a breach due to inaccurate advice he had been given. The second reason was that he expected to fail the course he was doing.

1. In relation to the applicant’s behaviour to the Department, the Tribunal notes that there is a possibility that he misled it as to his email address but accepts that this appears to have been an innocent error. Otherwise his dealings with the department appear to have been truthful and cooperative.

1. There is no evidence of any consequential visa cancellations under S140 that would result from cancellation of the applicant’s visa.

1. If the applicant’s visa is cancelled he will become unlawful and he may be liable to detention under S 189 and removal from Australia if he does not leave voluntarily but that is a usual consequence of visa cancellation.

1. The applicant will be subject to restrictions in further visa applications to Australia but again that is a usual consequence of visa cancellation and does not weigh heavily against cancellation in this case.

1. There is no evidence of international obligations owed by Australia under any international agreements that would be breached by reason of the cancellation of the applicant’s visa.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should not

   be cancelled.

DECISION

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

Mark O'Loughlin 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.