Singh (Migration) [2019] AATA 4175 (6 August 2019)

Last Updated: 10 October 2019

Singh (Migration) [2019] AATA 4175 (6 August 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Jagjit Singh

CASE NUMBER: 1906209

DIBP REFERENCE(S): BCC2019/161622

MEMBER: Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS: 6 August 2019 at 12:02 pm (VIC time)

DATE OF WRITTEN RECORD: 3 September 2019

PLACE OF DECISION: Melbourne

Statement made on 03 September 2019 at 12:42pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – study history – relevance and value of courses undertaken – non-enrolment period of just over 4 months – overall record of compliance – physical and mental health issues – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 March 2019 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).
2. At the hearing on 6 August 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

3. This is case number 1906209 in the matter of Jagjit Singh. This is an oral decision of the tribunal in relation to this matter. The applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2019 cancelling his subclass 573 student visa pursuant to section 116(1)(b) of the Migration Act 1958.
4. The applicant’s student visa was granted on 23 May 2014 with an original expiry date of 15 March 2019 providing for more than four years and nine months during which the applicant (indistinct) to reside in Australia for the purposes of fulltime study. The visa was granted on the basis that he would enrol in and successfully complete a number of courses commonly referred to as a package of courses starting with a Diploma leading to a Bachelor of Business.
5. The delegate cancelled the applicant’s visa on the basis that he had breached that condition of the visa, which required him to continue to be enrolled in a registered course of study. The issue in the present case is whether that ground of cancellation is made out and, if so, whether the visa should be cancelled.
6. The applicant appeared before the tribunal on 6 August 2019 to give evidence and present arguments. He was assisted by his registered migration agent Ms Nina Merlino. The tribunal is grateful for the extensive and well-structured submissions filed by Ms Merlino on behalf of her client to which I will refer extensively in the course of giving these reasons.
7. The hearing was conducted with the assistance of an interpreter of the Punjabi and English languages although I note at no stage did the applicant require the assistance of the interpreter because of his proficiency in English.
8. For the following reasons the tribunal has decided to set aside the decision to cancel the applicant’s student temporary class TU subclass 573 visa and in its place substitute a decision not to cancel the visa. These are the reasons why.
9. The applicant’s visa was subject to a number of conditions as prescribed by schedule 8 of the Migration Regulations as they then were when the visa was granted.
10. In the present case the issue is whether the primary applicant has breached condition 8202 of the Regulations. If the applicant has breached that condition the visa may then be cancelled pursuant to section 116 of the Act. Condition 8202(2)(a) of the applicant’s visa required that he remain enrolled in a fulltime registered course. In the delegate’s decision record the delegate identified the period from 27 September 2018 to mid-February 2019 as the period in which the applicant was not enrolled in a registered course of study. This amounted to approximately four or so months it would seem during which the applicant was alleged to be in continuous breach of the visa.
11. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System known as PRISMS. The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000. It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the department of any issues arising from a student’s general compliance with conditions once a visa has been issued and also to inform the department as to when an enrolment might start and when it might stop.
12. The PRISMS report obtained by the delegate in this case indicated that the applicant had finished an Advanced Diploma of Hospitality Management at the Australian College of Trade Pty Ltd on 27 September 2018 at which point his enrolment in that course ceased. He did not subsequently enrol in any other registered course of study. There were no current enrolments at that point in time and so that is when the breach started to accrue day by day.
13. The applicant was written to by the Department of Home Affairs on 11 February 2019 notifying him of its intention to consider cancelling his visa. That notice set out particulars of the alleged breach of condition 8202. He was invited to comment on these allegations before the department moved to cancel his visa. Following receipt of the notice the applicant enrolled in two new registered courses of study on 15 February 2019 and so that is when the breach stopped.
14. I note that he continues to remain in these courses being an Advanced Diploma of Hospitality Management with a course commencement date of 18 February 2019 and a completion date of 27 September 2019 and a Bachelor of Tourism and Hospitality Management following that starting 18 November 2019 and finishing March 2021.
15. Those start and finish dates have obviously been thrown out by the subsequent decision to cancel his visa such that now that the tribunal will be setting aside the decision to cancel he will still need to apply for another student visa, which is not within the remit of the current application on review, so he may or may not get an opportunity to complete those. Those proposed courses were to be undertaken at the Academies Australasia Polytechnic Pty Ltd trading as AA Poly.
16. The applicant provided a formal written response to the department on 25 February through his then registered migration agent and he set out in submissions made on his behalf his education history, his immigration history in Australia, and tried to convince the delegate not to cancel his visa. Implicit in that submission was an acceptance that he was in breach of the visa. And at the very commencement of the proceeding today the tribunal having read the submissions filed by Ms Merlino on behalf of the applicant there is now an explicit concession that the applicant was indeed in breach of his visa as alleged by the delegate.
17. So in these circumstances the tribunal is satisfied that there was a breach of condition 8202 of the visa and that then allows the tribunal to move onto the next stage of this inquiry, which is considering the discretion to cancel it or not.
18. As indicated earlier, the tribunal on this occasion has been greatly assisted by the submissions filed on behalf of the applicant and so I will take the opportunity to refer to those submissions because they are pertinent to the reasons for setting aside the decision on this occasion.
19. First of all the tribunal shall refer to Mr Singh’s immigration history. He arrived in Australia on 23 May 2014 having been granted this visa, which is now the subject of the review application. And generally speaking he was a good student but for the fact that he did not actually end up completing a Bachelors degree as he had planned in that visa period. For a variety of reasons he made a decision to change his course and there was some issue with respect to Canberra University ceasing the Bachelors Course.
20. But in any event it appears from Mr Singh’s Australian education history, which is also set out in the submissions of Ms Merlino, that he has remained consistently enrolled in some kind of course pertaining to his ultimate aspiration to open his own restaurant back in India. He completed an English bridging course in 2014 following which he completed a Certificate IV in Frontline Management following which he completed Certificates III and IV in Commercial Cookery following which he completed a Diploma of Hospitality and then he started the Advanced Diploma in Hospitality but he only partially completed that. And so he will have to do that if he is permitted to stay in Australia for a second student visa period before he moves onto a Bachelors course.
21. The tribunal accepts that a Bachelors degree, if he ultimately obtains it, will put him in good stead when he returns to his home country to open a business with his father.
22. The submissions of Ms Merlino included a reference to the fact that the cancellation decision was made just three days prior to the expiry. The tribunal is unsure as to what significance attaches to that although it is noteworthy in the sense that if the department had waited just three more days then it would not have been in a position to be able to cancel the visa. What would have happened is that the visa would have just lapsed and then Mr Singh would have had to apply for another visa but without the impediment that a cancellation presents. That impediment practically being that he has to wait three years before he can apply for another visa. So I am not really going to give that any weight on this occasion.
23. But in terms of other matters that need to be considered they are set out in the Department of Home Affairs Procedure and Advice Manual PAM3 in deciding whether or not to cancel a visa.
24. As stated by Ms Merlino in her submissions Mr Singh’s initial purpose was to travel in Australia and to complete a package course from English to Diploma leading to a Bachelor of Business. That plan did not go as anticipated but that said he has it seems utilised the time that he has spent in Australia to actually study for lower level courses in a Bachelors course, which would ultimately be relevant to his work planned for when he returns to India and also at least providing him with some foundational knowledge and skills that would lead to successful completion of a Bachelors course, if he ultimately manages to do that in the future in Australia.
25. The courses which he ultimately enrolled in commercial cookery, hospitality are all consistent with his ambition to open a restaurant utilising those skills obtained in Australia when he returns to India.
26. The tribunal has given significant consideration to the reason for the breach. I note that it is what may be regarded as a relatively short period of time, which has given rise to this particular cancellation decision, just over four months. More often than not the tribunal is presented with situations where students have continued to breach their visa for in excess of 10 months, 12 months and more. So I have taken into account the fact that this is a relatively short period and also at the tail end of his visa when he has breached given that it was a relatively long visa period and this is really the only allegation that has arisen in relation to his breach. That appears to weigh in his favour.
27. The breach cannot be looked at in isolation. The tribunal must have regard to his overall record of compliance and overall he has complied well in excess of four years with the enrolment condition, so that certainly weighs in his favour.
28. The tribunal also takes into account the evidence of the financial hardship that arose during the breach period. Mr Singh stated that his study issues began when he was informed by his father that he could no longer financially support Mr Singh’s studies in Australia. Mr Singh’s father, the owner of a retail business in India, began struggling with his own mental health as a result of his son residing in Australia.
29. During this period Mr Singh’s father could not attend to his business, which affected the turnover of the business, which resulted in Mr Singh selling property. And evidence has been filed in support of that contention, including an affidavit from Mr Singh’s father as well as his uncle. That evidence also demonstrates that Mr Singh’s father’s business is now doing much better and is in a position to support his continuing studies.
30. I have also given consideration to the applicant’s, that is Mr Singh’s, physical and mental health operating at the time. Mr Singh has, and I accept, chronic and severe back pain since approximately December 2017. It has required continuous treatment by way of scans, medical consultations, chiropractic treatment as well as physiotherapy. Evidence has been filed in support of that contention.
31. The applicant also contended that once his father advised him that he could no longer financially support him Mr Singh felt the pressure to financially support himself. Despite his chronic back pain Mr Singh continued to work at an Indian restaurant. Coincidentally it is also during this time that a colleague and friend of Mr Singh’s advised him to seek help in relation to his potential mental health conditions and he took that advice. And I accept the evidence that he has had three consultations with a psychologist this year to deal with his mental health issues.
32. I otherwise accept the substance of the submissions made by Ms Merlino as to those factors, including his physical and mental health impacting his decision making abilities to make sure that he complied with the enrolment condition at the end of the visa period. It is not an excuse but it certainly does go some way towards assisting the tribunal in understanding why this all happened.
33. The tribunal accepts that there will be a degree of hardship suffered by Mr Singh, if his visa is cancelled because he will not be able to apply without a great deal of difficulty for a further student visa to complete his ultimate aspiration of a Bachelors course before returning to his home country.
34. I have given consideration to the legal implications, in particular Public Interest Criterion 4014 and 4013, which will be triggered with the cancellation of a visa. In these circumstances given the overall good compliance of the applicant with his visa I think these would be overly punitive in this particular case.

DECISION

35. In all the circumstances I am satisfied that the decision under review should be set aside and so therefore formally in case number 1906209 in the matter of Jagjit Singh. The tribunal sets aside the decision to cancel the applicant’s student temporary class TU subclass 573 visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member