Virk (Migration)

Virk (Migration) [2019] AATA 6647 (23 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Fariyad Singh Virk
CASE NUMBER:  1832641
HOME AFFAIRS REFERENCE(S):          BCC2018/3953746
MEMBER:Genevieve Cleary
DATE:23 December 2019
PLACE OF DECISION:  Perth
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 December 2019 at 6:41am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – did not maintain enrolment – deferment refused – insufficient IELTS results – change of course to improve English – intend to return to nursing – assaulted – mental health issues – returned to India for medical care – overall complied with conditions – no weight regarding inconsistencies – 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 1 November 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).
The delegate cancelled the visa on the basis that the applicant came to Australia to complete a packaged course which would provide a qualification at AQF Level 7, but was at the time of the decision enrolled in a course at AQF Level 4, and thereby below the registered course in relation to which his visa grant was based on. 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 appeared before the Tribunal on 17 June 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
Prior to the hearing the applicant sent to the Tribunal the Decision Record of the delegate.
At the hearing the applicant provided to the Tribunal:
·A copy of his passport;
·Medical letters from 2016 and 2017.
After the hearing the applicant provided to the Tribunal a copy of his Diploma of Health Sciences from Edith Cowan University and Diploma of Business from Perth Institute of Business and Technology and an email chain regarding his application for deferral in 2018.
In coming to its decision the Tribunal has also had regard to the Department file.
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)
·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: 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(c)(ii).
The applicant’s visa was granted on the basis that he was enrolled in a packaged course of a Diploma of Science (Health Studies) and a Bachelor of Science (Nursing), which would provide a qualification at AQF level 7. In the present case, the applicant’s visa was cancelled on the basis that the applicant had not maintained 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 delegate’s decision outlined that the Provider Registration and International Student Management System (PRISMS) indicated that the applicant was enrolled in a Certificate IV in Commercial Cookery at AQF Level 4 as at 5 October 2018. Further, the delegate indicated, information in PRISMS indicated that the Confirmation of Enrolment in the Bachelor of Science (Nursing) was cancelled on 14 August 2017.
On 5 October 2018 the Department sent to the applicant a Notification of Intention to Consider Cancellation (NOICC). In his response to the NOICC on 19 October 2018, it is noted by the delegate, the applicant told the Department that he applied for a deferral of his studies in semester one 2018, however that application was rejected. Therefore, the delegate notes, the applicant did not hold enrolment in a registered course in 2018 until he enrolled in a Certificate IV in Commercial Cookery on 10 September 2018, a registered course three AQF levels below the registered course in relation to which his visa was granted. The delegate also noted that at the time of the decision he was not enrolled in any higher level courses.
At the hearing of the application, the applicant told the Tribunal he deferred his course from July 2017 to February 2018. He went to India for treatment of some injuries, and he applied again for deferral of the first semester in 2018. He said that it was while he was in India seeking treatment for his injuries, in approximately February or March 2018 that he found out that his deferral was refused. He could not start the course because he was in India. He returned from India and asked if he could start the Bachelor of Nursing, however his IELTS score was insufficient, and he could not start. He decided to commence a course at a lower level and prepare to be tested again in relation to his English. His intention was therefore to return at a later date to the Bachelor of Nursing.
Therefore, having completed his Diploma of Science, he descended several levels to commence the Certificate IV course in Commercial Cookery. The applicant confirmed at the hearing before the Tribunal that he understood the requirements of the visa in relation to progression and agreed that he had therefore breached the visa conditions.
On the evidence before the Tribunal, the applicant has not complied with a condition of the Visa 8202 (two), and the ground for cancellation under s. 116 has been made out.
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 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.’

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 arrived from India in January 2014 with a year 12 qualification, 18 or 19 years old. He was granted a Student (Temporary) (class TU) Student (subclass 500) visa.
The applicant came to Australia for a better and more practical education. He felt that the Indian education relied heavily on books, and enabled people to copy other students’ work without sanction. His parents, supported by other members of his family, financially supported his move to Australia. If he continues to study, his father will pay for his education.
The applicant wanted to complete studies in business in Australia. However, when he commenced his studies here, he realised that there was too much competition in business in the world, and he decided to change to nursing; he felt that there would always be a need for nurses. He completed the Diploma of Business, however did not complete the Bachelor of Business. It was this change in course direction that meant that his first visa expired, and he needed to apply for a second visa in order for him to continue studying. It is this second visa, granted on 18 April 2017, which is the subject of this application.
The Tribunal accepts that young students may struggle being away from home, and attempting tertiary studies in a foreign language. The Tribunal also accepts that young students do not always know what they really want to study when they leave school, and may have a change in direction. Changes to courses and course providers, and some failures in units, are reasonable in those circumstances. The Tribunal does not place any weight against the applicant for the realisation that he did not wish to pursue business studies once he had completed a qualification in that area. Neither does the Tribunal place any weight against the applicant for not being able to initially fulfil the English requirements for the Bachelor of Nursing course.
Wanting to study and gain a qualification in a course in Australia is a reasonable desire for someone from another country. The Tribunal is satisfied that the applicant has a compelling reason for wanting to travel to and study in Australia, and for remaining in Australia to study, ultimately, nursing.
As is addressed above in these reasons, the applicant enrolled in a Certificate IV in Commercial Cookery. As is noted by the delegate in the Decision Record, the applicant told the Department in the NOICC that he intended to enrol in further and higher level studies in the hospitality industry. However, the applicant told the Tribunal that he had always intended to return to nursing, and had enrolled in lower level hospitality courses to improve his English and maintain ongoing enrolment, albeit at a lower level than was required. While the Tribunal notes the inconsistency between what the applicant told the Department and what he told the Tribunal, the Tribunal does not place much weight on that inconsistency. While the change to the direction to hospitality does suggest an attempt to maintain ongoing residence in Australia, rather than a genuine desire to study nursing and therefore a compelling need to remain in Australia, the Tribunal is satisfied that, overall, and given the Tribunal’s findings on the reasons for the applicant changing course to hospitality, the inconsistency does not outweigh the other findings the Tribunal has made about the applicant having a compelling reason to study and remain in Australia to do so.

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

On 6 May 2016 the applicant was seriously assaulted when he was driving a taxi. He was hit on the head with an iron bar, over his left eye. Medical documents provided to the Tribunal by the applicant show that he had a deep laceration above his left eye which was sutured. A CT scan was normal, however, he continued to complain about pain around his eye and the swelling continued with blurred vision several days after the attack. He reported to the Edith Cowan University Student Health Services that he was scared and unable to concentrate. He was referred to a psychologist.
Subsequent medical checks showed that he continued to have blurred vision and a paralysis over his left eyebrow. On 16 May 2016 he was referred back to Midland hospital for further checks. He continued to visit the student health service with left sided headaches and stress, possibly, according to the health service, due to post traumatic stress disorder. It was at that point that it was suggested that it was necessary for him to defer his upcoming university exams.
He was referred to a plastic surgery unit at another hospital in relation to his paralysis and an eye clinic regarding his double vision. He continued to take medication for pain management. By 28 July 2016 the medication was still not controlling his pain. In the opinion of the student health service, the continuing headaches, double vision and stress were restricting his life and it would take some time for him to be able to return to pre-injury employment given he was a taxi driver. The doctor reported that he had taken a month off driving taxis however had attempted to return to taxi driving. The applicant told the doctor that although he was driving he needed to take regular rests from that driving as he was overcome by headaches and dizziness. The doctor also reported that although he had decided to attempt to complete his university course and exams, he was only just managing.
The applicant told the Tribunal that he had not wanted to defer his exams, as he wanted to get on with his studies. As is outlined elsewhere in these reasons, he failed at least one of those exams, but passed on a further examination.
The applicant continued to attend the student health service at Edith Cowan University through to July 2017. By July 2017 the applicant reported that his pain in his forehead was approximately 50% better than it had been and his paralysis had declined. He also reported that his double vision was declining and that he had continued to see a psychologist and his stress was also improving. Despite this, it was the opinion of a pain specialist that he was unlikely to regain any sensation in his forehead.
During this time the applicant also meditated at his temple with music in an attempt to control the pain he was experiencing. In July 2017 the applicant told the doctor at the student health service that he felt able to move on with his life and that his pain and paralysis were stable. However, the doctor still considered that he needed to determine whether he wished to study full-time or whether he needed to reduce his workload to part time. The doctor was of the view at that time that he no longer required counselling with the psychologist.
In addition to the medical reports, on 29 May 2017 the Edith Cowan University Medical Health Services provided a medical certificate certifying that it would be in the applicant’s interests to defer his Bachelor of Nursing course and to return to India to spend time with his family and to commence the course in 2018.
The applicant attended 25 psychological sessions between 9 May 2016 and 12 September 2017. The psychologist determined that he had symptoms consistent with post-traumatic stress disorder and that his symptoms would have contributed to a range of emotional and behavioural anomalies, impacting on his personal, social and professional life. The applicant reported to the psychologist symptoms such as the pain and double vision described above but also a lack of motivation, low feelings, high levels of stress, depression and crying, a loss of confidence in driving and working and living in constant fear, particularly given that he was injured while in his workplace. He also reported nightmares. The symptoms surrounding his workplace were exacerbated because the applicant needed to work to support himself. He also reported suffering from panic attacks.
In relation to employment, the applicant’s psychologist recommended that he not return to full-time work within the next 12 months from his report in September 2017. The psychologist recommended that the applicant return to India to holiday with his family to assist in his recovery.
It was within this background that the applicant continued to study, however says he struggled. He could not complete some exams because of the pain. He failed an exam from which he had to leave, however was allowed to sit the exam again, and passed, although his marks were not as good as he would have liked.
He also failed one exam because he had trouble sleeping. He re-did this exam also and passed.
He graduated from the Diploma course in the middle of 2017. He thought that given he had had such difficulty battling his medical problems, he should defer the Bachelor course. He applied and the deferment was approved. While he deferred, he attempted to rectify his medical problems.
Given the medical documentation provided to the Tribunal, the Tribunal accepts the applicant’s evidence that the assault on him was serious and had long-lasting effects on his studies, his health and his work. The Tribunal is satisfied that neither the assault, nor the resulting effects on the applicant were within the applicant’s control. That finding is to be given significant weight in his favour.
However, the Tribunal also accepts that there appears, from the delegate’s decision, that there may have been other reasons for him failing to commence the Bachelor of Nursing course.
By the end of 2017 the applicant felt that he was still unable to resume full-time study. He applied for a further deferral. He also returned to India, and received further medical attention; his uncle had informed him that while his parents were reluctant for him to return, as they felt he would receive better medical care in Australia, he had found a good doctor in India. He supplied to the Tribunal medical documents showing the treatment from that doctor. He stayed in India for a month.
The applicant was asked by the Tribunal the reasons for the refusal of the deferral in relation to semester one 2018. At first the applicant said that it was because he had not reached the required level of English. However, he subsequently said that he thought that it was because he was unable to defer twice, the one course. The Tribunal asked the applicant to send to it a copy of any email correspondence he received regarding the deferral of the Bachelor of Nursing in 2018. While the applicant did forward to the Tribunal an email chain commencing 21 February 2018, the Tribunal was not provided with the initial question he asked. It is therefore not immediately clear from the email chain exactly why the applicant was refused the semester one 2018 deferral.
The response from the first provided email from the applicant thanks the applicant for his request for deferral and says, “Your application will be reassessed for Semester Two, 2018 in due course. Should you be deemed eligible for this new admission period, a new offer letter will be issued.” The next email from the applicant dated 8 March 2018 asks whether he has to start his studies in semester one 2018 to which the response from the university is that as he has not met the conditions of his offer he is unable to commence in semester one. While there is no mention from the university as to what that condition is that he has not met, given the applicant’s evidence, it appears that it was because he had not yet met a condition such as his English competency.
A further email from the University dated 12 March 2018 told the applicant that as he had not met the conditions of the offer for semester one, 2018, his application to defer the offer for semester two had been assessed and not approved.
The Tribunal accepts therefore, from the emails provided by the applicant to the Tribunal and the applicant’s evidence, that while it does appear that the applicant had every intention of maintaining his enrolment in the Bachelor of Nursing, he was unable to maintain that enrolment because he was unable to fulfil one of the requirements, most likely the requisite standard of English.
The applicant then decided to enrol in a Certificate IV in Commercial Cookery. He thought that while doing this he could improve his English level and scores, and completing the course would mean that he was studying, thus at least partly satisfying a requirement of his visa. However, just after the course commenced he was notified that his visa was cancelled, and he was unable to study. Once he learnt he was unable to study he moved to Broome. He told the Tribunal that he had been struggling financially, and because of the pain he was suffering still, he wanted to be in a quieter place. If he is able to study, he will apply to a number of universities to study, and will travel to and live in wherever he is offered a place.

The applicant told the Tribunal that if he were able to study nursing while he was on the Bridging visa, he would have.
He still intends to complete his Bachelor of Nursing, should his visa be returned. He wants to be a regional nurse because he likes country life, both in India and Australia. He likes the idea of there not being many people, and knowing each other in small towns.
The course will take 2 to 21/2 years, given he has already completed the Diploma course. Once he has completed that course he will return to India, where his family are. He does not have family here. He also needs to get married, although there is nothing as yet organised for him.
The applicant told the Tribunal that he still feels the effects of the assault, particularly in relation to the lack of feeling in his forehead, however he has learnt to live with the effects. He feels he is able to commence study, and although he is not sure how he will be effected, given he is concerned that he has wasted his time in Australia, he will simply, he told the Tribunal, press on.
The Tribunal is satisfied that the reasons for his failure to commence the Bachelor of Nursing are a combination of the effects of the assault and his inability to satisfy the English requirements. Therefore, while the earlier was not within his control, it could be said that the failure to reach the requisite English standard may have been within his control. However, the applicant has given an explanation of the reasons he enrolled in the hospitality course, partly being that he wanted to use it to improve his English. The Tribunal is satisfied that that is a reasonable reason in the case of the applicant to do so, and an attempt to ameliorate the effects of his lack of English standard, that is, the factor which was within his control. The Tribunal gives this explanation and factor some weight in his favour. There is no doubt the period over which the applicant was not suitably enrolled was significant and the lengthy breach of condition 8202 must be given some weight towards the visa being cancelled. For the reasons given above, however, the Tribunal accepts the explanations given for his lack of appropriate enrolment and finds that they are reasonable explanations in the circumstances. Weighing all those factors, the Tribunal finds that the weight rests with the visa not being cancelled.

The extent of compliance with visa conditions

The applicant returned in 2016 to see his family, before the assault on him, and then in 2017 for a month for further medical treatment. He has worked as a taxi driver in Australia, however stopped after some time after his assault. He has also worked as a manager in a pasta shop. At the time of the hearing before the Tribunal he was not working. The pasta shop closed, and he has not worked since.
The applicant told the Tribunal that he has not applied for any other visas either in Australia or for entry elsewhere. There is no other information before the Tribunal to suggest that the applicant has breached other conditions of his visa, or any other visa. The tribunal is satisfied that the applicant has, other than the lack of appropriate educational progression, complied with his visa conditions. In addition, while an enrolment at a significantly lower level course, the fact that the applicant enrolled in a course at all after his deferment was declined and his course was cancelled, is in his favour. His compliance in relation to his other visa conditions is also in his favour.
While the Tribunal acknowledges that the breach of condition 8202 (2) is significant, weighed with the reasons for the breach, and the relatively quick enrolment in another course, albeit at a lower level, the Tribunal finds that the breach is outweighed by those other factors.

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

If he returns without the degree, he will have to return to India and start again, spending 2-4 years getting a further qualification. He believes that Indian institutions will not recognise his Diploma of Science. He is currently being supported by friends and family, who are sending money. If he is not able to finish, he said he will have wasted his 5 years here.
The Tribunal accepts that any visa cancellation would cause some stress to a student and his family. The Tribunal also accepts that the cancellation of the visa is disappointing and 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 gives these considerations a little weight towards the visa not being cancelled.

Past and present behaviour of the visa holder towards the department

According to the Decision Record of the Department there was no evidence that the applicant had been uncooperative towards the Department, and there is no evidence before the Tribunal to suggest any adverse conduct towards the Department; I give this some little weight in his favour. The applicant responded to the NOICC within time after an extension and provided detailed information about his medical problems to the Department. However the Department was concerned that the applicant did not take the opportunity to contact the Department when his deferral had been declined. The Tribunal accepts that the applicant, while admitting that he was aware of the requirement of progression in his studies, also believed that he was at least partially complying with the conditions. Therefore, while not contacting the Department as he perhaps should have, the Tribunal does not place any weight against him for not doing so in these circumstances.

Whether there would be consequential cancellations under s.140

This factor is not relevant and I give it no weight.

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

If the current Visa is cancelled, this will result in the following:
·The applicant will become an unlawful noncitizen and liable to detention under section 189 and removal under section 198 of the act;
·The applicant will have limited options to apply for further visas in Australia;
·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 he will not be eligible to have any temporary Visa application approved if he applies for a visa that requires public interest requirement 4013 to be met.
The Tribunal gives 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, and
·The applicant will be eligible to apply for a Bridging visa while he makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that he does not cooperate in applying for a Bridging visa.

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

The applicant said he had come here to study, and he would like to complete the bachelor course before he returns to India. The applicant did not indicate any reason or fear of returning to India. The Tribunal is satisfied that no international obligations will be breached through a cancellation. The tribunal does not give any weight to this factor. He does not have any children and therefore a consideration of the best interests of children is not relevant in this case.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

This factor is not relevant and the Tribunal gives it no weight.

Any other relevant matters

There are no other relevant matters before the Tribunal, and the Tribunal is unable to place weight on this consideration.
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.
Genevieve Cleary
Member
ATTACHMENT
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.

[2019] AATA 6647

23 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction