Talvir Singh (Migration)
[2020] AATA 3473
•17 July 2020
Talvir Singh (Migration) [2020] AATA 3473 (17 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Talvir Singh
CASE NUMBER: 1931178
HOME AFFAIRS REFERENCE(S): BCC2019/3220542
MEMBER:Stephen Conwell
DATE:17 July 2020
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 17 July 2020 at 3:32pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – compelling reasons for breach of condition – misleading advice from migration agent – responsibility of visa holder – credible witness – previous migration agent deregistered – genuine student – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 24 October 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).
The delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of 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.
The applicant was represented in the review hearing by his current authorised migration agent, Ms Gurpreet Dhawan (agent).
A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The Tribunal exercised its discretion to hold the hearing by telephone. The applicant participated in the telephone hearing on 16 July 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by phone.
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
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 full-time registered course: 8202(2)(a)
·subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b); and
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·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 the applicant was not enrolled in a full-time registered course at the same level as, or at a higher level than, the registered course for which the visa was granted.
As the applicant was not enrolled in a course at the AQF Level 10 (Doctoral Degree) and seeking to change to Level 9 (Master’s Degree), subclause 8202(3) does not apply to him.
The applicant was granted a Subclass 500 (Student) visa on 31 October 2018 for enrolment in a Master of Management for Engineers at Central Queensland University from 5 November 2018 to 3 July 2020. The Masters course is the highest Confirmation of Enrolment (‘COE’) for which the visa was granted, and once completed, would provide a Level 9 (Master’s Degree) qualification from the Australian Qualifications Framework (AQF).
As noted in the decision record, the applicant is not a Defence, Foreign Affairs or secondary exchange student and therefore condition 8202(2)(b) attached to his visa. Condition 8202(2)(b) states that visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
By Notice of Intention to Consider Cancellation (NOICC) dated 19 September 2019, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that his enrolment in the Masters course was cancelled by the education provider on 8 April 2019 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.
The applicant’s agent at the time of the NOICC, Mr Tejinder Kalra provided a written response to the NOICC on the applicant’s behalf via email on 25 September 2019. The response is summarised in the decision record.
The applicant explains in the response to the NOICC that he dropped out of Master’s studies because he wishes to pursue automotive studies leading to a Bachelor of Business. He consulted Mr Tejinder Kalra, who informed him that changing from a Master’s to a Bachelor course does not require him to apply for a new Student visa. He proffered a copy of an email chain between the Department and a migration agent in which a Department officer appeared to confirm that such a change of enrolment did not require a new Student visa. It was on the basis of the migration agent’s advice supported by the email correspondence, that the applicant proceeded to change his enrolment.
The applicant explains that he hopes to establish a career in the automotive sector in India after obtaining Australian qualifications. This choice was initially not supported by his parents, who like many middle-class Indian parents, “want their children to be doctors, engineers, IT professionals …”. However after being convinced of the applicant’s commitment and passion, his parents now support him and have agreed to provide financial backing for him to invest in an automotive franchisee business upon his return to India.
The applicant concedes that he breached visa condition 8202 but that his breach was unintentional and in reliance of the advice he received from his previous migration agent. His oral advice at hearing also admitted the breach of condition 8202.
Having regard to the information in PRISMS as outlined in the decision record and the applicant’s own admissions, the Tribunal finds that once his enrolment in the Master's course was cancelled on 8 April 2019, the applicant was in breach of 8202(2)(b) as he failed to maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted. The Tribunal finds that he breached condition 8202(2)(b) of his visa.
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
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained 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 was granted a Student visa to travel to Australia. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia, in order to study. According to his PRISMS record, the applicant fell in breach of 8202(2)(b) from 8 April 2019 when his enrolment in the Master's course was cancelled as he failed to maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted. However the Tribunal notes that 10 days later, on 18 April 2019, he enrolled in a Bachelor of Business studies (AQF Level 7). This is an indication the applicant was promptly seeking to continue his studies, albeit he was acting on misleading advice from a migration agent regarding the applicability of his visa conditions to his change of enrolment.
Based upon the matters set out above, the Tribunal is satisfied that the applicant has established that his primary purpose for being in Australia is for the purpose of study. There is evidence that the applicant has made several attempts to secure study rights whilst on his current Bridging visa E. His first request was granted and he was afforded three months study rights, however his subsequent requests have been denied. The Tribunal finds that the applicant was actively seeking to pursue his studies and gives this factor some weight towards exercising its discretion to set aside cancellation of the visa.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2)(b). The applicant has offered a consistent explanation to both the Department and the Tribunal for the breach which is supported by a contemporaneous document, in the form of the email correspondence proffered by his agent purporting to confirm the legality of the proposed change of enrolment.
There is no evidence before the Tribunal as to his non-compliance with other visa conditions.
Whilst the Tribunal find that the applicant did breach the condition, given the circumstances of the breach, the Tribunal gives this factor some weight towards exercising its discretion to set aside cancellation of the visa.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence as to the hardship he will suffer if his visa is cancelled. He Is the youngest child of six siblings; as the only son he feels considerable pressure to not disappoint his parents by failing in his overseas studies. For that reason he has told only his father about his current travails with his visa. His parents are in their 70s and it would be emotionally difficult and financially punitive for them were he unable to complete his studies in Australia.
Should the applicant not be able to complete his studies in Australia, he would also have difficulty trying to re-enter the university stream in India due to the several years he has spent in Australia.
Based on the matters set out above, the Tribunal accepts that the cancellation has caused significant emotional and financial hardship for the applicant, which will undoubtedly be compounded by the continuation of the cancellation of the visa and the Tribunal gives this factor some weight towards the visa not being cancelled.
circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The Tribunal has considered the circumstances in which the ground for cancellation arose. The Tribunal accepts that the applicant received misleading advice from his migration agent at the time, and in acting upon that advice, he fell in breach of his visa conditions. The Tribunal considers that visa applicants are ultimately responsible for complying with their visa conditions and therefore they should take an active and conscientious interest in the conditions of their visa. However the Tribunal has regard to the written submission of the applicant's current agent, Ms Dhawan, which claims that the applicant's previous migration agent had in fact been deregistered as a migration agent at the time at which he purported to advise, and act on behalf of, the applicant.
The Tribunal has had the benefit of hearing from the applicant and Ms Dhawan. The Tribunal found the applicant to be a credible witness and genuinely remorseful. The Tribunal can discern no attempt by the applicant to avoid study, mislead his educational provider or the Department. The Tribunal also places weight on the detailed submission of Ms Dhawan.
Having considered the written submission and having the benefit of the applicant’s oral evidence the Tribunal is satisfied that the applicant is a genuine student who has unfortunately relied upon misleading and incorrect advice from a migration agent. The Tribunal finds that the circumstances in which the ground for cancellation arose were not beyond the applicant’s control, however the Tribunal accepts that it was not unreasonable for him to rely upon the advice of a migration agent, especially when such advice appeared to be supported by email correspondence ostensibly from the Department itself. Although the email exchange did not relate to the applicant it does seem apposite to the applicant’s circumstances and germane to the reason for his seeking migration advice.
The Tribunal accepts that the applicant did not intentionally commit an error or breach of his visa conditions and that he was not aware the breach until he was served with the NOICC. Based on the evidence set out above, The Tribunal is satisfied that there are compelling reasons for the breach of the visa condition in this case, that were not reasonably within the control of the applicant.
The Tribunal give this factor significant weight towards exercising its discretion to set aside cancellation of the visa.
past and present behaviour of the visa holder towards the Department
The applicant appears to have communicated promptly and truthfully with the Department. The Tribunal give this factor some weight towards exercising its discretion to set aside cancellation of the visa.
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
The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. The applicant may also be barred from returning to Australia for up to three years. He has presented no specific evidence in relation to this factor. However given the circumstances as set out above, the Tribunal give this some weight in favour of exercising its discretion to set aside cancellation of the visa.
whether there would be consequential cancellations under s.140
The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.
Whether any international obligations would be breached as a result of the cancellation
This consideration does not appear to be relevant and the applicant has not made any claims in relation to it.
Any other relevant matters
Ms Dhawan’s submission contains a general commentary on the harm caused to overseas students by persons purporting to be migration agents but who are not registered or who have been deregistered, yet continue to tout for business and advise overseas students. Such were the circumstances which befell the applicant and according to Ms Dhawan, he is by no means the only recipient of misleading and negligent advice by such persons.
Ms Dhawan names several such persons who appear to operate as unauthorised migration agents outside of the purview and supervision of the Office of the Migration Agents Registration Authority (OMARA). The Tribunal encouraged Ms Dhawan to direct her concerns to the appropriate officer or division of the Department.
The Tribunal finds that there are no other relevant matters.
Summary
The Tribunal is mindful of the seriousness of breaching visa conditions, however having considered the evidence individually and cumulatively, the Tribunal finds on balance there are persuasive reasons why it should exercise its discretion to set aside cancellation of the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Stephen Conwell
MemberATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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Jurisdiction
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