Suthar (Migration)

[2022] AATA 2000

Suthar (Migration) [2022] AATA 2000 (18 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nileshkumar Manharbhai Suthar

CASE NUMBER:  2007998

HOME AFFAIRS REFERENCE(S):          BCC2018/2393569

MEMBER:Joseph Lindsay

DATE:18 June 2022

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 18 June 2022 at 10:43am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – genuine student – applicant ceased enrolment – gap in studies – conduct of previous representative – limited academic progress – financial hardship – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 48, 116, 119, 140
Migration Regulations 1994, r 2.43

CASES

MIMA v Hou [2002] FCA 574             

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 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 (Cth) (the Act).

2. On 7 May 2020, the Federal Circuit Court of Australia quashed a previous decision from the Tribunal dated 16 October 2019 and directed the Tribunal to reconsider and redetermine the applicant’s application.

3. The applicant appeared before the Tribunal on 8 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

4. 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

5. 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. Relevantly to this case, these include the ground set out in s 116((1)(fa)(i) 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.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s 116(1)(fa)(i) if the Minister is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s 116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions … yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32])].

8. For matters where the notice of proposed cancellation under s 119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s 116(1)(fa) exists: s 116(1A), reg 2.43(1C) and (1D) of the Migration Regulations 1994 (Cth) (the Regulations). The prescribed matters are set out in the attachment to this decision.

9. The applicant provided to the Tribunal a copy of the delegate’s decision record dated 31 August 2018. The Tribunal has considered the delegate’s decision record. In the hearing, the Tribunal spoke with the applicant about the decision record. The applicant confirmed that all of the information in the decision record was true and correct.

10. The applicant made admissions that:

    -he did not maintain the study plan outlined in his student visa application;

    -he did not hold a valid enrolment in a registered course of study for over nine months from 21 August 2017 until 19 June 2018;

    -he had only studied at the Higher Education Sector course level for which his student visa was granted for four months and 10 days;

    -he was not studying from 27 May 2017 until 19 June 2018 and remained onshore during this time for a period of over one year.

11. In discussion with the Tribunal, the applicant conceded that the grounds for cancellation of his student visa were made out.

12. Accordingly, the Tribunal accepts that:

    -the applicant did not maintain the study plan outlined in his student visa application;

    -the applicant not hold a valid enrolment in a registered course of study for over nine months from 21 August 2017 until 19 June 2018;

    -the applicant had only studied at the Higher Education Sector course level for which his student visa was granted for four months and 10 days;

    -the applicant was not studying from 27 May 2017 until 19 June 2018 and remained onshore during this time for a period of over one year.

13. Accordingly, the Tribunal finds that the applicant is not, or is likely not to be, a genuine student, and that there are grounds for cancellation of his student visa under s 116(1)(fa)(i) of the Act. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. 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 circumstances in which the ground for cancellation arose

15. Importantly, the Tribunal notes that the Federal Circuit Court referred to ‘three significant and cogent pieces of evidence’ that the applicant emailed to the Department on 30 August 2018, being a submission contained in the body of the email itself with the heading ‘interim submission’ and a document attached titled ‘Personal Statement and circumstances’ and a psychologist’s report. The Departmental file that has been made available to the Tribunal contains the email with the heading ‘interim submission’ and a document attached entitled ‘Personal Statement and circumstances’, but the file does not contain a copy of the applicant’s psychology report. In any event, the Tribunal accepts the psychology report certainly existed as the report has been referred to a number of times in the Departmental file, and the delegate has expressly referred to the report.

16. Crucially, when the Tribunal spoke to the applicant about the document entitled ‘Personal Statement and circumstances’, the applicant claimed he did not know what was written on that document. Rather, the applicant indicated to the Tribunal that the information in that document was not correct and that he only signed the document at the request of the agent. The Tribunal notes that the applicant was scathing of the conduct of his previous representative and indicated that his previous representative embellished his claims without his knowledge. The applicant indicated he had similar sentiments in respect to the email from the previous representative with the heading ‘interim submission’.

17. In any event, the Tribunal spoke to the applicant at length about his circumstances. The applicant claimed that he did commence his studies at Bond University to do his Master of Accounting (Professional). The applicant said that he faced a lot of difficulties at that time, including not being able to find a job and excessive travelling times between his accommodation and the university. The applicant said that while he started his course, his results were poor, and he did not complete any subjects. He then said he did not blame Bond University for his circumstances, but he indicated that he was desperate to continue his studies and so he decided to move to Sydney in July 2017 to live with his wife’s relatives. The applicant said he was looking to have support and for better opportunities of employment so he could continue his studies. The applicant said he then enrolled in a Master of Accounting course at Holmes Institute, but he was still having trouble finding suitable employment and so he could not afford to pay all of the course fees. The applicant said he paid half of the course fees to Holmes Institute, but they would not refund the fees to him when he cancelled his course. He claimed that these circumstances caused him to go into a depressive spiral. The applicant said he does not blame Holmes Institute for these circumstances. He said he sought and received counselling for his mental health, and he relied primarily on counselling rather than medication. He said he has now recovered from his depressive episode and he has not had any mental health treatment since sometime in 2018. He said his partner arrived in Australia in late March 2018 and they got married on 3 June 2018. He said his wife is currently studying and is well on the way to completing her course. The applicant said he was not fully aware at time that he was required to keep the Department informed of his circumstances, and he promised to do so in future. The applicant maintained that he wanted to complete his accounting studies as he has a desire to have a career in accounting.

18. In respect of the above, the Tribunal makes the following findings. The Tribunal accepts that the applicant faced a lot of difficulties at the time he commenced his studies at Bond University to do his Master of Accounting (Professional), and these circumstances included not being able to find a job and excessive travelling times between his accommodation and the university. The Tribunal accepts that the applicant achieved poor results in his subjects, and he did not complete any subjects. The Tribunal accepts that the applicant moved to Sydney in July 2017 to obtain an enrolment in the Master of Accounting course at Holmes Institute because he thought he would have a better chance of success if he had more support by living with extended relatives and more chance of finding suitable employment. The Tribunal accepts that around this time, the applicant’s mental health deteriorated, and he sought mental health support. The Tribunal accepts that the applicant cancelled his enrolment with Homes Institute. The Tribunal accepts that the applicant’s adverse circumstances were not caused by either Bond University or Holmes Institute. The Tribunal is satisfied that the applicant fully understands that he is responsible for maintaining his course enrolment and compliance with his visa conditions, and he is responsible for immediately advising the Department is he is having difficulty maintaining compliance with his visa conditions. The Tribunal finds that the applicant has demonstrated that he has been able to manage his mental health for the last few years and he has the support of his wife and extended family in locality. Accordingly, the Tribunal places high weight on this information in favour of the applicant.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

19. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. The Tribunal places neutral weight on this information.

    The extent of compliance with visa conditions

20. The Tribunal accepts that the applicant appears to have generally complied with his other visa conditions. The Tribunal places neutral weight on this information.

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

21. The Tribunal accepts that there may be some disappointment caused to the applicant and his family if the applicant’s visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

22. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal places neutral weight on this information.

    Whether there would be consequential cancellations under s 140 of the Act

23. The Tribunal accepts the applicant is married but his spouse is not a dependant on his student visa. The Tribunal places neutral weight on this information.

    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

24. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s 48 of the Act means that the applicant will have limited options to apply for further visas in Australia. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore, and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia. The Tribunal places neutral weight on this information.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

25. The Tribunal asked the applicant if he feared anything in returning to India. In response, he indicated that he does not fear returning to India. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information.

    Any other relevant matters

26. There were no further relevant matters.

    Conclusion

27. In balancing the circumstances above, the Tribunal concludes that the visa should not be cancelled. The applicant has one last chance to demonstrate that he is a genuine student. In making this decision, however, the Tribunal requests that the Department continue to monitor this applicant for any future transgressions in respect to his studies and compliance with any visa conditions or the requirements of any future visa applications.

    DECISION

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

    Joseph Lindsay
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.