Vahora (Migration)

[2022] AATA 1431

Vahora (Migration) [2022] AATA 1431 (29 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sajidbhai Farukbhai Vahora

REPRESENTATIVE:  Mr Justin Wilson (MARN: 9369986)

CASE NUMBER:  2116528

HOME AFFAIRS REFERENCE(S):          BCC2019/6848263

MEMBER:David Barker

DATE:29 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 29 April 2022 at 4:49pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – previous Student visa cancellation – enrolment in higher level courses – employment in Australia – new application for a Student visa prior to cancellation – compassionate or compelling circumstances – support provided to extended family in Australia – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 116
Migration Regulations 1994, Schedule 2 cl 500.217; Schedule 4, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 December 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant’s Subclass 500 (Student) visa had been cancelled on 7 January 2020 as he had not maintained enrolment in a registered course that, once completed, would 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.

4. The applicant appeared before the Tribunal on 7 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Aishaben Gafarbhai Vahora, Gafarbhai Anvarbhai Vahora and Imran Mahebubbhai Vohra. The Tribunal was assisted by an interpreter of the Gujarati and English languages.

5. The applicant was assisted in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets PIC 4013 and consequently satisfies cl 500.217.

8. Clause 500.217 of Schedule 2 to the Regulations provides that:

   500.217

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

   (2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.

   (3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

   (4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.

   (5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.

9. Clause 4013 of the PIC (public interest criterion) set out in Schedule 4 to the Regulations states:

   4013

   (1) If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):

   (a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

   (b) the Minister is satisfied that, in the particular case:

   (i) compelling circumstances that affect the interests of Australia; or

   (ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa within 3 years after the cancellation or determination.

   (2) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

   (a) because the person was found by Immigration to have worked without authority; or

   (b) if the visa was of a subclass specified in Part 2 of this Schedule—because the person did not comply with a condition specified in that Part in relation to that subclass; or

   (c) if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule—because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or

   (ca) because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

   (d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m),(o), (oa) or (ob) applied to the person.

   Circumstances of the applicant

10. The applicant is a national of India who came to Australia in December 2017 on a Subclass 600 Visitor visa. On 9 April 2018, the applicant was granted a Student (Class TU) Subclass 500 visa, which ceased on 7 January 2020. He has since that date been on Bridging visas and at all relevant times whilst he has been in Australia a lawful non-citizen.

11. The decision record of the delegate of the Department of Home Affairs (hereafter referred to as the decision record) dated 27 October 2021, a copy of which was provided to the Tribunal by the applicant, confirms that the applicant made the application for the Student (Class TU) Subclass 500 visa on 24 December 2019.

    Documents provided in association with the visa and review applications

12. In association with his visa application the applicant provided the Department with documents, including evidence of:

    ·Applicant identity;

    ·His father-in-law’s capacity to financially support the applicant for his intended period of study in Australia;

    ·Overseas student health cover;

    ·Pearson Test of English Academic results;

    ·Letter – statement of genuine temporary entrant requirements;

    ·Form 1023 notification of incorrect answers, submitted 13 April 2020;

    ·Representative written submissions, submitted 13 April 2020;

    ·Orange International College Statement of Attainment pertaining to partial completion of a Diploma of Building and Construction, issued 8 January 2020;

    ·Spouse and child identity and spouse visa status and travel records;

    ·Employer letter from Majestic Caravans, dated 20 November 2019;

    ·Payslips;

    • Confirmation of Enrolment (CoE) in a Diploma of Building and Construction through Orange International College, commencing 19 April 2021 and finishing 10 April 2022;

13. Prior to the hearing, the applicant filed a significant amount of supporting documentation comprising:

    ·Family tree showing family system of applicant and his spouse and other evidence of applicant’s familial connections with relatives in Australia;

    ·Support letter from Gafarbhai Vahora and Aishaben Gafarbhai Vahora, cousin and cousin‑in‑law of applicant;

    ·Support letter from Imran Mahebubbhai Vahora, brother-in-law of applicant;

    ·Written statement;

    ·Orange International College Statement of Attainment pertaining to partial completion of a Certificate III in Carpentry, issued 29 September 2019;

    • Orange International College Statement pertaining to partial completion of a Diploma of Building and Construction, issued 8 January 2020;
    • Holmes Institute Interim Statement of Results for a Master of Professional Accounting, issued 14 August 2018;
    • Three character references from teachers who taught the applicant in India;
    • Photographs of applicant with relatives in Australia.

    Cancellation of the previous Student visa

14. On 7 January 2020, the applicant’s previous Student visa was cancelled pursuant to s 116(1)(b) of the Act, because the Department determined that the grounds for cancelling the visa outweighed the reasons not to cancel the visa, with those grounds being that the applicant did not comply with a specified visa condition, namely condition 8202. This condition required the applicant to maintain enrolment in a full-time 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.

15. On 16 March 2020, the delegate wrote to the applicant inviting him to comment on the cancellation of the visa and advising that he may be affected by a risk factor affected by PIC 4013, and that criterion must be satisfied in order to grant him a visa (natural justice letter). The natural justice letter gave the applicant 28 days to lodge a written response.

16. The applicant lodged a written submission from his representative and a Form 1023 notification of incorrect answers form with the Department on 13 April 2020.

17. The Form 1023 notification of incorrect answers indicated that the applicant’s part‑time employment history was not mentioned in the visa application and that his employment with Majestic Caravans covered periods from July 2019–December 2019. The information on the form noted that a recommendation letter from the employer had been attached to the IMMI account and contended that the applicant had not provided employment information with the application as he was under stress.

18. The representative submissions, in summary, submitted that:

    ·The applicant, after receiving the Notice of Intention to Cancel his Student visa, applied for a Student visa in accordance with the AQF level of study he was pursuing, as he demonstrated a lack of knowledge and professional help in understanding the AQF levels, as this would provide an opportunity for the applicant to complete his Diploma of Building and Construction which was less than 10 months in remaining duration;

    ·The applicant initially applied for the higher education sector level Master’s course at Holmes Institute as he had previously completed a Bachelor of Commerce in India. When he applied to Holmes Institute, he didn’t know about the AQF levels in Australia. He did not have any idea about skill-specific Certificates and Diplomas, but after getting the idea of the certifications that cover qualifications from the tertiary education (higher education and vocational education and training) sector, he changed courses. He did this without seeking any professional help and because he thought the alternate courses would improve his employment prospects in India. He remained unaware of the AQF levels which need to be maintained for his visa condition until he received the Notice of Intention to Cancel his Student visa.

19. The written statement provided to the Tribunal, in summary, provided:

    ·The applicant came to Australia on a Visitor visa, accompanied by his wife and child, mother-in-law and father-in-law. He wished to extend his Visitor visa, but on advice decided to apply for a Student visa. The applicant’s child returned to India with his in‑laws and his wife remained in Australia.

    ·He was granted the Student visa and then, one day, after observing home construction activity, discussed this with the agent who had assisted him. He subsequently changed his courses to construction-related vocational courses (Certificate III in Carpentry, Diploma of Building and Construction), without understanding, or receiving advice from the agent, that in doing so he would breach a condition attached to his Student visa which required him to maintain enrolment in courses which would provide a qualification from the Australian Qualifications Framework that was at least the same level as the Master of Professional Accounting he had initially enrolled in. The agent also arranged for him to pay fees towards a CoE for a Bachelor of Business (Leadership and Management) which he intended to undertake after completing the Diploma of Building and Construction in August 2020.

    ·The applicant’s wife returned to India in November 2018 and the applicant undertook study in the construction courses and also worked for Majestic Caravans.

    ·After receiving the Notice of Intention to Cancel his Student visa, the applicant spoke to his agent and applied for the current Student visa, which is in the correct category for the Diploma of Building and Construction course which he still wished to complete.

    ·After his visa was cancelled and he was placed on a Bridging visa which did not provide him with study or work rights, he became depressed and worried and the decision was made that he should move in with his cousin and her family. He experienced further stressors as a consequence of the death of his sister-in-law in India. This also affected his cousin, with whom he was living and who was pregnant.

    ·The applicant supported his cousin and her husband in relation to looking after their children and other domestic duties, including during the difficult periods where there were significant COVID-19 related restrictions in Victoria. He also assisted his brother‑in‑law Imran and his family.

20. At hearing, the applicant gave evidence that he had applied for the current Student visa before the previous Student visa cancellation decision was made. He queried why, as this was the case, his current application was also refused. He indicated that he had nothing further to add in relation to the cancellation of his previous Student visa.

    Is the applicant affected by a risk factor?

21. The applicant contends that the wording of PIC 4013(1) and (2)(b) refers to the timing of a visa application “after the cancellation of the visa”. The applicant contends that the Tribunal should have regard to the fact that this application was not made “after” the cancellation of the visa and as such PIC 4013 is not captured in this scenario. The Tribunal has considered this submission.

22. Where a decision is made to refuse a visa on or after 12 December 2014, a person is affected by a risk factor if a visa previously held by the person was cancelled under s 116(1)(b) of the Act. PIC 4013(2)(b) provides that a person is affected by a risk factor if a visa previously held by the person was cancelled under s 116 where, in relation to a Subclass 500 (Student) visa, the person did not comply with a specified condition, which includes condition 8202. The Tribunal is satisfied that this reflects the applicant’s circumstances. The reference in PIC 4013(2)(b) to “after the cancellation of the visa” is in the context where the Minister[1] is satisfied that, in the particular case, circumstances exist that justify exercising the discretion for the granting of the visa within 3 years after the cancellation[2] or determination. Taken at face value, the submission that the applicant’s circumstances are not captured by this “scenario”[3] appears a concession that there are no potential circumstances which may warrant the waiver of the requirements of PIC 4013. This was not the thrust of the applicant’s arguments at hearing, or in the documents he has provided in support of his review, and the Tribunal has not placed weight on this aspect of the applicant’s submissions.

    [1] Or a decision maker, in this case the Tribunal.

    [2] Emphasis added

    [3] PIC 4013(2)(b)

23. PIC 4013(1) provides that if an applicant is affected by a risk factor mentioned in subclause (2),[4] as is the case in the applicant’s circumstances, the public interest criterion will be satisfied if the application is made more than 3 years after the cancellation of the previous cancelled visa. Given that the current application was lodged before the previous visa was cancelled, the Tribunal concurs that PIC 4013(1) does not “capture” the applicant’s circumstances.

    [4] Emphasis added

24. The Tribunal finds that the Subclass 500 (Student) visa granted to the applicant on 9 April 2018 was cancelled on 7 January 2020 under the provisions of s 116(1)(b) of the Act, because the Department determined that the grounds for cancelling the visa outweighed the reasons not to cancel the visa, with those grounds being that the applicant breached a specified visa condition attached to that visa. The visa was cancelled while the applicant’s application for a Subclass 500 (Student) visa was before the delegate, and the application was not made more than 3 years after the cancellation of the previous Subclass 500 (Student) visa. In such circumstances, the applicant is affected by the risk factors set out in PIC 4013.

    Waiver of the requirements of PIC 4013

25. In ascertaining whether the requirements of PIC 413 may be waived, there needs to be either compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justifying granting the visa within this 3‑year period.

26. There are no definitions of compelling or compassionate circumstances in the Act or Regulations, and there is limited judicial consideration of this provision in the context of PIC 4013. Whether a circumstance or reason is compelling and/or compassionate is a question of fact and degree for the Tribunal to consider.

27. Departmental policy provides some guidance on what may amount to compelling or compassionate circumstances, while making it clear that whether there are compelling or compassionate circumstances depends on the circumstances of the individual case.[5] Whilst not binding, the Tribunal may have regard to the Department’s interpretation and examples of what may constitute compelling or compassionate circumstances. However, the Tribunal is mindful that it should avoid elevating any such interpretation to a statutory requirement and should always bring its consideration back to the words of the provision in PIC 4013(1)(b) and consider the individual circumstances of the case.

    [5] Policy - Migration Act - Visa cancellation instructions - Exclusion periods - Assessing and deciding visa applications - Grounds for exercising discretion (reissued 01/07/2020).

28. Departmental policy indicates that compelling circumstances may arise where the exclusion period has arisen from either a Departmental error or as an unintended consequence of the exclusion provisions, for example, if the person previously made every effort to leave Australia whilst a lawful non-citizen but did not leave before the visa ceased due to factors beyond their control, such as ill health or delays associated with travel documents. The Tribunal has reviewed the available evidence and is not satisfied that there was a Departmental error in making an order cancelling the Student visa or that the exclusion period arose as an unintended consequence of its decision.

    Compelling circumstances affecting the interests of Australia

29. In assessing if the applicant has compelling circumstances affecting the interests of Australia, under policy there may be compelling circumstances affecting the interests of Australia if:

    ● Australia’s trade or business opportunities would be adversely affected if the person was not granted the visa;

    ● Australia’s relationship with a foreign government would be damaged if the person was not granted the visa; or

    ● Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.

1. With regard to whether there are compelling circumstances affecting the interests of Australia which would justify granting the visa, the applicant gave evidence at hearing that:

   ·He respects the Australian government and understands Australian laws. He knows the government will look after him. He is proud of the multicultural nature of Australia and would like to continue to improve his prospects here;

   ·He is in the current situation because he was misguided by advice from a previous agent and is hopeful that he will be granted the current visa;

   ·He is a diligent student and attended all classes that he was required to. He was also working for a reputable business. His previous visa was cancelled because of unavoidable circumstances flowing from the misguided advice given to him by the previous agent;

   ·He had to cease both his study and employment in December 2019;

   ·His relationship with his wife and family have been negatively affected because he has now remained away from his home country for so long.

2. The Tribunal reviewed the circumstances described by the applicant and the submissions he has provided to the Department and Tribunal. Whilst acknowledging the circumstances that the applicant has described, the Tribunal is not satisfied that he has established that there are compelling circumstances that affect the interests of Australia.

   Compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen

3. In assessing if there are compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, under policy there may be compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen if the applicant was not granted the visa because:

   ● A business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry out the business;

   ● Civil proceedings instigated by an Australian permanent resident would be jeopardised by the absence of the non-citizen witness; or

   ● An eligible New Zealand citizen would be unable to finalise legal and property matters associated with divorce proceedings without the physical presence of the non‑citizen in Australia.

4. In assessing if there are compassionate circumstances, under policy there may be compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the person was not granted the visa because:

   ● Family members in Australia would be left without financial or emotional support;

   ● Family members in Australia would be unable to properly arrange a relative’s funeral in Australia; or

   ● A parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and is therefore subject to an exclusion period).

5. If there is such evidence, PIC 4013(1) provides that PIC 4013 will nonetheless be satisfied if the Minister is satisfied that there are:

   ·Compelling circumstances that affect the interests of Australia; or

   ·Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   that justify the grant of the visa.

6. With regard to whether there are compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, the applicant indicated at hearing that he would like to primarily rely on the circumstances outlined in the statements and submissions provided in support of his review. At hearing, he summarised these as pertaining to the support he has given to his cousin and her family, especially during her pregnancy, and the extensive lockdowns in Victoria during 2020 and 2021. He further emphasised the strong bonds which have developed between him and the children of his cousin and brother-in-law, with particular reference to the bond with his cousin’s elder child. He expressed concern as to the adverse effect it would have on his cousin’s son if he (the applicant) had to depart Australia. He gave evidence as to how difficult his Australian relatives’ experiences were during the period of the pandemic when international borders were closed, as they could not have relatives visit from overseas to assist looking after the children whilst employed relatives were at work and his cousin was pregnant or caring for her newborn second child.

7. The applicant also gave evidence at hearing that his father suffers from a cardiac condition and that he has yet to inform him about the cancellation of his Student visa and the refusal of the current application, as he fears how his father’s health may be impacted if he finds out about these difficult circumstances.

8. Evidence provided at hearing and by way of written statements from the applicant’s cousin and brother-in-law are consistent with the claims made by the applicant with regard to the importance of the support he has provided and continues to provide them, and as to the strength of the bonds he has developed with the children of their respective families.

9. The Tribunal notes that none of the specific examples described in Departmental policy regarding potential circumstances affecting an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the person was not granted the visa are reflected in the circumstances described by the applicant and the witnesses. The Tribunal does, however, acknowledge the circumstances that have been put forward. The Tribunal accepts that the circumstances of the COVID-19 pandemic have created difficulty throughout Australia and the world and it does not doubt the benefit described to the applicant’s relatives, both children and adults, from his support and presence. However, the Tribunal notes that international borders have now reopened and the restrictions associated with the pandemic have now eased in Victoria. The Tribunal acknowledges that there is ongoing support provided by the applicant to his adult relatives, who are Australian citizens, but it is not persuaded that this support is of a degree of significance such that it constitutes compassionate or compelling circumstances.

10. The Tribunal further notes that should the Student visa be granted and the applicant, as required, returns to full-time study and presumably part-time employment, his capacity to assist with the range of domestic tasks described in the evidence would surely be constrained. The Tribunal is satisfied that he would be further so constrained if, as he indicated at hearing, he was successful in bringing his wife and child to Australia to join him.

11. With respect to the adverse effect on the children of his Australian relatives, with particular reference to the elder child of his cousin, the Tribunal acknowledges they may be impacted by his departure from Australia as the consequence of the refusal of his current application. However, the children are part of established families with both parents present in these family systems. The Tribunal is not satisfied that the evidence establishes that any adverse impact on the children would not be adequately ameliorated by support from their parents, such that the impact of the applicant’s departure from Australia would constitute a compassionate or compelling circumstance.

    Conclusion

12. In the circumstances, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or there are compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. As a consequence of this and the other findings it has made, the Tribunal is not satisfied the applicant meets PIC 4013.

13. Accordingly, as the Tribunal is not satisfied that the applicant meets PIC 4013, then it is not satisfied that the applicant meets cl 500.217 of Schedule 2 to the Regulations.

14. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    David Barker
    Member