Abbasi (Migration)

[2024] AATA 2479

Abbasi (Migration) [2024] AATA 2479 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saif Ullah Naeem Abbasi

CASE NUMBER:  2300730

HOME AFFAIRS REFERENCE(S):          BCC2022/3903245

MEMBER:Christine Kannis

DATE:24 June 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 24 June 2024 at 12:06pm (WA time)

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –failed to attend hearing – applicant was not enrolled in a full-time registered course – breached condition 8202 – was not undertaking the study for which his visa was granted – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994, r 1.03, Schedule 2

Education Services for Overseas Students Act 2000

CASES

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 January 2023 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 24 April 2024, the Tribunal sent the applicant an Invitation to attend a hearing on 4 June 2024 at 11.00 am (Vic time). The Invitation advised the applicant that if he was not able to attend the hearing he should advise the Tribunal as soon as possible. The invitation further advised:

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

5. On 3 May 2024, the Tribunal sent the applicant an email advising as follows:

   I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.

   On 24 April 2024 the Administrative Appeals Tribunal (AAT) sent you an invitation to attend a hearing on 24 June 2024. This invitation included a Hearing Response form for your completion, to be returned to us within 7 days. To date, we have not received the Hearing Response form or any accompanying submissions.

   The Tribunal requires that the Hearing Response form is submitted to us immediately

6. On 6 May 2024, the Tribunal received a signed Hearing Response in which the applicant indicated that he would be participating in the hearing and that he would not be requesting the Tribunal take evidence from any witnesses.

7. On 17 June 2024, a MS Teams test with the applicant was successfully completed.

8. On 21 June 2024, a  SMS hearing reminder was sent to the mobile telephone number provided by the applicant. There was no indication that delivery of the SMS hearing reminder failed.

9. On 24 June 2024, the Tribunal attempted to contact the applicant by MS Teams and by telephone from 10.50 am (Vic time) until 11.15 am (Vic time). The Tribunal’s attempts to contact the applicant were unsuccessful and the attempted telephone contacts were answered with a message that he was not available.

10. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend. The applicant did not contact the Tribunal after the scheduled hearing time to advise the reason he did not attend the hearing.

11. The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. In making this determination the Tribunal has placed weight on emails the Tribunal sent to the applicant, the Hearing Response provided by the applicant and the SMS hearing reminder. The SMS hearing reminder was sent to the applicant’s mobile telephone number which he provided in his Application for Review lodged on 20 January 2023. There is nothing before the Tribunal to indicate that the SMS hearing reminder was not delivered.

12. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.

13. The Tribunal makes a decision having had regard to all the information before it, including the information provided by the applicant to the Department. In these circumstances the Tribunal considers that the applicant was aware of the scheduled hearing and has had a fair opportunity to provide relevant information.

14. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 (Cth) (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?

16. On 15 January 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

17. 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)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·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).

18. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

19. In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course.

20. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

21. The information from PRISMS shows that the applicant was not enrolled in a registered course from 19 January 2021 to 6 November 2022.

22. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 19 January 2021 to 6 November 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

23. 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

24. 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’, as set out below.

25. On 2 November 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 19 January 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

26. On 8 November 2022, the applicant responded to the NOICC and provided the following information in a submission from his migration agent:

    • In June 2015, the applicant arrived in Australia on a Student visa to study ELICOS leading to a Bachelor of Accounting at Holmes Institute's Sydney campus. In March 2016, he finished ELICOS and enrolled in a Bachelor of Accounting. He partially completed a Bachelor of Accounting. Due to the COVID pandemic at the end of 2018, he was homesick because he couldn't see his family in Pakistan, which impacted his studies, and he could not graduate.
    • Everest Institute of Education accepted the applicant into a Certificate III in Light Vehicle Mechanical Technology in 2020. Due to the COVID pandemic, all classes were held online and the college did not offer any practical classes, which are required for this subject. The applicant couldn't catch up on theory classes and there were no practical classes and he assumed he was still enrolled. However, the institute cancelled his CoE in January 2021.
    • The applicant  was disappointed he couldn't finish his desired course and gain practical experience and began to feel ill and homesick and decided to travel to Pakistan for treatment and to see his family. He arrived in Pakistan on 28 October 2022 and after consulting with a doctor, he was diagnosed with generalised anxiety disorder and ordered to bed rest for a month.
    • The applicant received the NOICC on 2 November 2022. He has obtained a CoE for a Certificate III in Light Vehicle Mechanical Technology leading to Diploma of Automotive Management from Glen Institute starting on  7 November 2022. He is a genuine student impacted by the COVID pandemic. Due to the situation worldwide he was mentally and emotionally stressed and could not continue his studies. He has a genuine intention to obtain an Australian qualification and has already enrolled in the Glen Institute. He needs to get his qualification because his career and future depends on it. He is confident once he completes this course he will have all the necessary qualifications and knowledge to return to Pakistan and run his own automotive business.

27. At the time of responding to the NOICC, the applicant provided the following documents:

    • Holmes Institute Interim Transcript dated 10 September 2020 showing applicant’s enrolment and results from 2015 to 2019;
    • Caring House Psychiatric/ Psychological Treatment and Rehabilitation Centre signed by Dr Athar Maneer Akram certifying that the applicant is suffering from Generalised  Anxiety Disorder and is unable to attend school from 1 November 2022 for 4 weeks due to his current illness and advised bedrest along with treatment; and
    • CoEs for Certificate III in Light Vehicle Mechanical Technology , Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Management, all of which were created on 7 November 2022.

28. As the applicant did not attend the hearing or provide written submissions prior to the hearing, the Tribunal has relied on the information contained in the Department’s file including the Decision Record and the applicant’s response to the NOICC.

29. The applicant’s PRISMS record shows he has completed two courses, a General  English Program in 2015 and a Bachelor of Professional Accounting in 2018. PRISMS shows he had four courses cancelled prior to the NOICC, a Bachelor of Professional Accounting which was cancelled on 23 March 2020 due to Unsatisfactory course progress; a Certificate III in  Light Vehicle Mechanical Technology cancelled on 19 January 2021 due to Student notifies cessation of studies; and a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Management both of which were cancelled on 19 January 2021 due to Non-commencement of studies.

30. PRISMS shows the applicant was enrolled in three courses after receipt of the NOICC, all of which have been cancelled. The courses were Certificate III in  Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Management.

31. Relevant to the decision under review is the applicant’s enrolment in the Certificate III in Light Vehicle Mechanical Technology which was cancelled on 19 January 2021 due to Student notifies cessation of studies.

32. Given the applicant’s failure to attend the hearing the Tribunal was not able to put his PRISMS record to him for his comment or response under s 359AA of the Act.  Accordingly, the Tribunal places no weight on the applicant’s PRISMS record save for the enrolment in a Certificate III in  Light Vehicle Mechanical Technology which was cancelled on 19 January 2021. This enrolment was discussed in the NOICC and in the delegate’s decision and the Tribunal considers that the applicant has been given an opportunity to respond to this enrolment cancellation and has not disagreed with the information.

33. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

34. The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 1 year 10 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because  he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

35. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3]  

    [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

36. Given the applicant’s failure to appear at the hearing, the Tribunal was unable to ask him whether there was a compelling need for him to remain in Australia. In his response to the NOICC he said he needs to get his qualification because his career and future depends on it. The Tribunal does not consider this to be a compelling reason to remain in Australia.

37. The applicant’s non-engagement in the study for which his visa was granted for an extended period of 1 year 10 months, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

38. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 19 January 2021 to 6 November 2022. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

39. The applicant’s non-compliance for a period of 1 year 10 months from cancellation of his enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

40. Given the applicant’s failure to appear at the hearing the Tribunal was unable to ask him whether hardship may be caused by the cancellation of his visa. In his response to the NOICC the applicant said he needs to get his qualification because his career and future depends on it.

41. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

42. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 10 months prior to the issuing of the NOICC.  

43. In his response to the NOICC the applicant said he partially completed a Bachelor of Accounting and due to the COVID pandemic at the end of 2018, he was homesick because he couldn't see his family in Pakistan, which impacted his studies, and he could not graduate. The Tribunal notes that the World Health Organisation did not declare the worldwide pandemic until 11 March 2020. PRISMS shows the applicant completed a  Bachelor of Professional Accounting on 31 July 2018 and that his enrolment in a Bachelor of Professional Accounting was cancelled on 23 March 2020 due to Unsatisfactory course progress. Cancellation of this enrolment is not the subject of the current review.

44. In his response to the NOICC the applicant said due to the COVID pandemic, his Certificate III in Light Vehicle Mechanical Technology classes were held online and the college did not offer any practical classes.  He said he couldn't catch up on theory classes and there were no practical classes and he assumed he was still enrolled however, the institute cancelled his CoE in January 2021. The Tribunal notes that PRISMS records that the reason for cancellation was Student Notifies Cessation of Studies. Therefore, the Tribunal finds, based on PRISMS, that the applicant was aware that his enrolment had been cancelled.

45. In his response to the NOICC the applicant said he was disappointed he couldn't finish his course and began to feel ill and homesick and decided to travel to Pakistan in October 2022 for treatment and to see his family. He said when he was in Pakistan he was diagnosed with generalised anxiety disorder and ordered to bed rest for a month. In the NOICC response the applicant said due to the situation worldwide he was mentally and emotionally stressed and could not continue his studies.

46. The Tribunal accepts the medical evidence certifying a diagnosis of generalised anxiety disorder and the applicant’s inability to attend school from 1 November 2022 for 4 weeks. There is no medical evidence before the Tribunal regarding the applicant’s mental health at any time in 2021 and prior to 1 November 2022. In the absence of such evidence the   Tribunal finds the applicant’s non-compliance with the visa condition was not due to circumstances beyond his control and there are no extenuating or compassionate circumstances and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

47. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

48. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

49. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. 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. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

1. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

   Any other relevant matters

2. The Tribunal is not aware of any other considerations in relation to the cancellation.

   Conclusion

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

4. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

5. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

   Christine Kannis
   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.