Abdul Hameed (Migration)

[2019] AATA 4521

Abdul Hameed (Migration) [2019] AATA 4521 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Hameed

CASE NUMBER:  1822942

DIBP REFERENCE(S):  BCC2018/248324

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          5 July 2019 at 2:28 pm (VIC time)

DATE OF WRITTEN RECORD:                22 July 2019

PLACE OF DECISION:  Melbourne

Statement made on 22 July 2019 at 1:55pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – gap in studies – traffic accidents – applicant charged with careless driving – course deferments denied for mental health issues – decision under review set aside      

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, 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 27 July 2018 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 5 July 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 a decision of the Administrative Appeals Tribunal in case number 1822942, where the applicant is Abdul Hameed. The applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister for Home Affairs on 27 July 2018, cancelling his subclass 573 visa. 

4. The applicant’s visa was granted on 11 May 2016. With an original expiry date of 30 August 2018, it provided more than two years during which the applicant would be permitted to reside in Australia for the purposes of study. The visa was granted on the basis that the applicant would remain enrolled in and make satisfactory progress, in relation to a registered course of study for the duration of his stay in Australia, specifically that course proposed to be completed was a master’s degree at La Trobe University in English Language Teaching.

5. The delegate identified a period during the course of the visa in which the applicant was apparently not enrolled in a registered course of study and on that basis, the delegate made a determination that the applicant was in breach of the visa and then after considering all the circumstances, the delegate decided to cancel the visa. The applicant has now applied for a review of that decision before the tribunal and the issue in the present case is whether the ground for cancellation is made out and secondly, if it is, whether the visa should be cancelled.

6. The applicant appeared before the tribunal on 5 July 2019 to give evidence and to present arguments. The tribunal was assisted with an interpreter in the Urdu and English languages. 

7. The applicant’s visa was subject to a number of conditions, as prescribed by the Regulations, as they then were, when the visa was granted. In the present case, the issue is whether the applicant had breached condition 8202 of the Regulations. If he has breached that condition, the visa may then be cancelled pursuant to section 116 of the Act. 

8. Condition 8202(2)(a) of the applicant’s visa required that the applicant remain enrolled in a registered course of study. In the delegate’s decision record, it identified the period from 6 July 2017 to 4 May 2018 as the relevant period in which the applicant was not enrolled in a registered course. This amounted to almost 10 months during which the applicant was in continuous breach of the visa. 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. 

9. The Department of Home Affairs wrote to the applicant on 26 July 2018, notifying the applicant of its intentions to cancel the visa and gave notice about the particulars of the alleged breach. The applicant was invited to comment on these allegations before the Department moved to cancel the visa and the applicant responded and tried to convince the Department not to cancel the visa, outlining a range of circumstances of a similar nature to which he has raised with the tribunal today.

10. It appears implicit in the applicant’s response, that he had conceded that he was not enrolled in a registered course of study for the period identified by the delegate and in the course of the hearing before the tribunal today, the applicant fairly conceded that he was not enrolled, because he knew that his enrolment had been cancelled. As to the material before the tribunal, I am satisfied that the delegate was correct in reaching the conclusion that the applicant was in breach of condition 8202(2)(a) of the visa. That completes the first part of the enquiry.

11. Having found the applicant has not complied with a condition of the visa, the tribunal must consider whether the visa should be cancelled. There are not any matters specified in the Act or Regulations that must be considered in the exercise of this discretion however, the tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the applicant in the course of the hearing and any relevant matters identified in the Department’s procedures and advice manual. 

12. The applicant was upfront in relation to the purpose for which he was granted this visa. It was always his intention, he said in evidence, to leave Pakistan eventually to study abroad.  He had already completed successfully in Pakistan, a Master of Literature and before that, a Bachelor of Humanity and having provided evidence of that to the satisfaction of the tribunal, demonstrating that he seems to be capably academic. He was admitted into his Master’s in English as a second language teaching program and so he arrived and started that course as originally planned, on 25 July 2016.

13. Unfortunately, the applicant’s start in Australia came to an abrupt halt, at least in terms of ‘smooth sailing’ when he had an accident, or it seems he has had two accidents, in a car he was driving, on 17 August 2016. While the tribunal does not have a copy of the prosecution summary of that, it is evidenced from the material before the tribunal that he was charged for careless driving, along with a number of other charges, which led to a court appearance, for which he was found guilty and fined, according to the applicant, a total of $10,000 and he had an order disqualifying him from driving in Victoria for a period of one year. The applicant stated in evidence that it was his very first time he had ever had a car accident. He had only been in Australia for one month. The tribunal noted that the applicant expressed great relief, it seems, that nobody was injured in the accident, but it was two accidents in a very short space of time, within five minutes of one another, which is just a terrible series of events, which is likely to stress anyone. 

14. Not being with his family and being in a foreign country, no doubt that had a significant impact on him and it appeared to seriously impact his studies at La Trobe. It seemed that his mental health took a downturn thereafter and he descended into depression and anxiety and that ultimately resulted in the first semester at La Trobe in failing course units and the applicant has helpfully supplied a copy of his academic record in that regard.

15. The applicant was candid about his problems with his mental health in dealing with his situation. He emphasised he had never been in any kind of accident of this nature before and he did not know what was happening to his mind. He found it very difficult to grapple with it, but he did the sensible thing and he applied for a deferment of his course with La Trobe University and for some reason, not really explained, they did not grant him the deferment.

16. So, he took a drastic step of trying to re-enrol in some other master’s course in order to maintain compliance with his visa conditions. He decided to pursue something that he was not at least immediately familiar with, accounting, and so he enrolled in a Master of Professional Accounting. The tribunal was puzzled by that, but the applicant explained it was something that he was familiar with in the past, because he had done some accounting it would seem.  But it seems that he was endeavouring to make efforts at least to maintain compliance with his visa conditions.

17. The depression, it seems, became worse and eventually, the applicant sought professional assistance by seeing a psychologist and the tribunal is satisfied that he has seen a psychologist, Stephen Brown and there is a letter to that effect, in an attempt to try and deal with and manage his issues. 

18. The tribunal has given significant weight to the steps that the applicant has taken in order to ameliorate his mental health conditions. It is unfortunate that the delegate did not appear to place the same weight on that material, because in the tribunal’s view, it should have been given much more weight than it appears to have been given. It explained the situation and the tribunal is ultimately satisfied in relation to the declarations made by the applicant in his evidence today, that if the visa cancellation decision is set aside, he will apply for another student visa and attempt to achieve an Australian qualification.

19. The applicant has stated he has been in continuous touch with his father in relation to what he can do in that regard and the tribunal is satisfied that he does indeed genuinely intend to continue his studies if he is given the chance to do so. Presently, a decision cancelling his visa effectively impedes him from being able to apply for another student visa and so, the tribunal has taken that into account and also, obviously the circumstances in which the breach ultimately arose.

20. The tribunal suspects that if La Trobe University had acquiesced to his application for deferment, given the circumstances that he had detailed to them, then he would have had an opportunity to recover and then take steps to re-enrol and complete the master’s or at least have another go at it. So much was said by the applicant in evidence that is what he would have done, and the tribunal accepts that evidence.

21. The tribunal takes into account the difficult circumstances that have given rise to the situation of depression and anxiety, including the fact that he was fined $10,000, as well as he has been imposed with a compensation order of $40,000 and he has $50,000 it would seem, that he has to deal with quite apart from obligations to study and maintain himself in Australia, if indeed, he is ultimately granted a second student visa. The tribunal is of the view that it would be punitive to cancel his visa in these circumstances. 

22. In all of the circumstances, the tribunal has come to the conclusion that the applicant’s visa should not be cancelled. 

23. The time now is 2.28 pm and in case number 1822942, the tribunal sets aside the decision to cancel the applicant’s student subclass 573 visa, and in its place, substitutes a decision not to cancel the visa.

    DECISION

24. The Tribunal sets aside the decision to cancel the Applicant’s visa and, in its place, substitutes a decision not to cancel the visa.

    Dr Jason Harkess
    Member