Abbas (Migration)

[2019] AATA 2397

Abbas (Migration) [2019] AATA 2397 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Aqeel Abbas

CASE NUMBER:  1704028

HOME AFFAIRS REFERENCE:                BCC2016/4333644

MEMBER:Lilly Mojsin

DATE:18 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 18 April 2019 at 8:35am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 (Higher Education Sector) – breach of condition – not enrolled in course of study – evidence of psychological and financial problems – has been studying successfully – non-compliance due to circumstances beyond control – no evidence of adverse behaviour – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 189
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a course of study.

3. The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 11 April 2019 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present review 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.

7. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

   REASONS AND FINDINGS

8. In the present review the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. 

9. The applicant agreed in a submission dated 22 March 2019, and received by the Tribunal at the hearing on 11 April 2019, that he was not enrolled in a registered course of study since 7 March 2016. Therefore the Tribunal finds that the applicant has not complied with a condition of the visa.

10. 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’.

11. The applicant provided a submission to the Tribunal, wherein he provided detailed evidence of his psychological and financial problems. He also provided copies of his Confirmation of Enrolment, at the Group Colleges of Australia where he has been enrolled in 4 trimesters since January 2018. He has successfully passed 5 out of 8 subjects and hopes to be finishing his course in about 18 months. He is single, works for a newsagency in Sydney and all his family are in Pakistan.

12. The Tribunal accepts that the applicant suffered from suffered from depression, anxiety and stress due to health conditions of his family and a severe downturn in his father’s finances.

13. The Tribunal considers the breach of condition 8202(2) to be significant as the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa when he ceased studying. But in light of the applicant’s medical condition of depression, anxiety and stress, the Tribunal weighs this factor in favour of not cancelling the visa. 

14. The applicant states that he has a compelling need to remain in Australia as he hopes to continue his studies. He has paid lots of money in fees and did not want to go back. He now wishes to study a Bachelor of Accounting. The Tribunal accepts that the applicant works in a newsagency. He has been studying and has successfully completed 5/8 subjects in a Bachelor of Accounting course at Group Colleges Australia. He has been studying since January 2018.

15. The Tribunal weighs this factor against cancelling the visa.  

16. As for hardship that would result to the applicant, he would lose all the time and money he has put into his education and has not obtained a qualification in Australia. He has been studying and has been successful in his studies to date. He is single, he does not have children.

17. The Tribunal is satisfied that the applicant has truthfully explained his circumstances in which ground of cancellation arose. The Tribunal does not accept that spending money studying in Australia and not obtaining a qualification amounts to hardship. Nor does the desire to obtain an Australian qualification rather than a Pakistani qualification amounts to hardship. Therefore the Tribunal is not satisfied that the applicant would suffer hardship were the visa to be cancelled. The Tribunal weighs this factor in favour of cancelling the visa. 

18. The evidence before the Tribunal indicates that the applicant's non-compliance with the visa condition was due to circumstances beyond his control at the time of his diagnosis his mental health condition. In light of the medical report provided to the Tribunal from Bridge Rehab and Psychiatric Services, the non-compliance continued to be beyond his control at the time of cancellation of the visa. The Tribunal weighs this factor against cancelling the visa. 

19. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

20. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

21. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes from the decision record that there is no information before the Department that indicates that any other person currently holds a visa because the applicant held his student visa. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

22. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Lilly Mojsin
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.