Abdul Imran (Migration)

[2024] AATA 3070

Abdul Imran (Migration) [2024] AATA 3070 (26 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Abdul Imran

REPRESENTATIVE:   Mr Muhammad Rafi

CASE NUMBER:  2301724

HOME AFFAIRS REFERENCE(S):          BCC2022/3903252

MEMBER:Gabrielle Cullen

DATE:26 July 2024

PLACE OF DECISION:  Sydney

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 26 July 2024 at 11:44am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling need – separation from wife and child – Conventions of the Rights of the Child (CROC) – 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

1. This is an application for review of a decision dated 7 February 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 under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The applicant attached the Department’s decision which indicates that on  2 December 2022 the Department invited the applicant to comment on their intention to consider cancellation of his subclass 500 student visa, granted on 16 December 2021[1], on the basis he had not been enrolled in a course of study since 8 February 2022. The applicant responded to the Notification of Intention to Consider Cancelling the Visa (NOICC).

   [1] This visa was granted on 16 December 2021 and valid to 23 February 2023 until cancelled by the Department.

4. The applicant appeared before the Tribunal via video on 18 July 2024 to give evidence and present arguments.

5. The applicant was represented in relation to the application for review by his registered migration agent. His representative attended the hearing.

6. The applicant was given until close of business on 24 July 2024 to provide further evidence as to his wife’s application for the visa.

7. 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

8. 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. The evidence indicates he was granted a subclass 500 Student visa on 16 December 2021, at that time valid to 23 February 2023, with condition 8202 included as a condition of that visa.

   Did the applicant comply with condition 8202?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

11. The applicant was notified of the intention to consider cancellation (NOICC) of his visa on 2 December 2022. The Tribunal is satisfied that the NOICC was validly issued. The applicant responded to the NOICC and did not dispute that he had not been enrolled in a course of study from 8 February 2022 until he enrolled in the Master of Business on 19 October 2022[2] to be studied from 24 October 2022 but provided reasons as to why he had not been enrolled which are considered below.

    [2] The COE submitted to study the Master of Business was dated 19 October 2022.

12. The delegate found the applicant had not been enrolled in a registered course of study from 8 February 2022 until enrolment in the Master of Business, with the COE dated 19 October 2022. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study in this period. The applicant did not dispute at the hearing that he had not complied with condition 8202(2) of his visa.

13. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 8 February 2022 to 18 October 2022  while the holder of a subclass 500 student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

14. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

16. 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 Procedural Instruction ‘General visa cancellation powers.

    Background

17. The applicant is a 34-year-old male citizen of Pakistan who is married with one child. His wife, Ms Iffath Jahan, arrived in Australia on 10 June 2022 as the primary applicant of a subclass 500 visa valid to 15 March 2024. They were married on 6 February 2023 and had a child together on 21 April 2023.[3] Ms Iffath Jahan has applied for a further student visa, with the child as her dependent. At hearing the husband indicated as he holds a Bridging visa E is he unable to apply with her.

    [3] As evidenced by the submitted marriage certificate and birth certificate submitted prior to the hearing.

18. The applicant first arrived in Australia on a subclass 573 Student visa on 20 June 2014 valid to 30 September 2015, was granted a further subclass 573 Student visa to 15 March 2018, a further subclass 500 Student visa to 15 March 2019, another subclass 500 Student visa to 18 June 2021 and was granted a final subclass 500 Student visa on 16 December 2021 to 7 February 2023. This visa was cancelled by the Department for breach of condition 8202 on 7 February 2023. A no study condition was placed on the subsequent bridging visa.

19. The evidence indicates that he completed a Bachelor of Business Computers in 2012 in India, then arrived in Australia in 2013 to undertake a Masters of Business Administration. Ultimately since his arrival he has successfully completed an Advanced Diploma of Leadership and Management,  8 units towards a Master of Professional Accounting and a successfully completed a Master of Project Management and Business. He was enrolled in the Master of Project Management from 19 February 2021 to 23 December 2022 but due to credits given from the previous master’s course, he finished it early on 8 February 2022. He enrolled in the Master of Business to begin study on 24 October 2022 and paid $8,500 to study that course but ceased studying as a no study condition was placed on his bridging visa after his visa was cancelled. Prior to the hearing he submitted an offer to study a Graduate Diploma of Management (Learning) dated 17 July 2024

20. In his response to the NOICC he provided the following reasons for not being enrolled in a course of study from 8 February 2022 until enrolment int the Master of Business on 19 October 2022 to commence on 24 October 2022.

21. He completed his previous study in the Master of Project Management and Business on 24 December 2021 and was waiting for his official transcript which he received in February 2022. His plan was to enrol in his intended course of study in the Master of Business in March/April 2022 but during this time his father suffered from heart coronary artery disease and had to undergo heart stent surgery in May 2022[4]. After undergoing the stent surgery within two weeks’ time his father was having problems and had to undergo further surgery in July 2022 and was hospitalised for two months. He claims he was unable to focus on anything as his father was hospitalised with most of his days in intensive care and it was a very difficult time for him and the stress and fear of his father’s ill-health resulted in a delay of him enrolling in the Master of Business until October 2022. He claims in the month of September 2022 his father was recovering and regaining his health and at the end of September he applied for his intended course of Master of Business and he received confirmation of his enrolment in October 2022.

    [4] A medical letter dated 2 June 2022 notes he underwent an open heart coronary bypass graft.

22. Between February 2022 and September 2022 was the period he faced the significant challenge. He was worried about his father’s health and during that time there had been rapid changes to his way of life and it disrupted his plans. During this time he was not able to focus on his studies.

23. He has a genuine intention to study and complete the Master of Business and wants to attain the knowledge and skills of this course. As to why he wants to study the Master of Business , he wants to advance his knowledge of business subjects and that together with his previous study of a Master of Project Management and Business he will have the skills to help achieve his career goal of working as a successful business professional. He claimed he is currently enrolled in the course and intends to complete the course on time. He has an intention to attain strong business skills and knowledge to accomplish his career goal of working in a successful business.

24. He also noted that to attain the Master of Business, as he has received credits for 7 subjects from completing the Master of Project Management and Business, he only has to complete 9 subjects. At hearing he said it would take 1 year.

25. Prior to the hearing the applicant’s newly appointed representative made further submissions, providing evidence of the applicant’s marriage in 2023 to Ms Iffath Jahan, the Australian birth certificate of his child with the applicant named as his father, academic records for his past study, medical records as to his father’s medical difficulties dated 14 May 2022 and 2 June 2022, evidence the applicant’s wife was granted a student visa on 31 May 2022 valid to 15 March 2024 and an offer dated 17 July 2024 for him to study a Graduate Diploma  of Management (Learning) from 5 August 2024.

26. Also included was a medical letter from Dr Somasundaram dated 10 November 2020 for in the name of Iffath Jahan noting she was found to be pregnant on 27 September 2022 and she had a baby via emergency caesarean on 21 April 2023, due to a low heartbeat. The letter notes that her husband was working full time and she did not have any help during her pregnancy and post delivery so she was under stress and unable to cope with study. Also included was a record from Canterbury Hospital as to the applicant’s wife undergoing an emergency caesarean on 20 April 2023.

27. The applicant’s representative summarised the reasons given by the applicant for the non-compliance, referring to depression and anxiety resulting from his father’s ill health. He noted during that time Ms Iffath Jahan arrived in Australia and she started living in the same housing complex as the applicant, they then married and had a baby born in April 2023. He submits the applicant’s wife had an unusual and difficult pregnancy as she was carrying a baby with a low heartbeat, which resulted in more distress for the applicant and he needed to take care of his wife. Notwithstanding,  he enrolled to study the Master of Business. The representative submitted had he not been a genuine student he would have applied for a subclass 408 Covid visa which was available to him, he has similarly not applied for  a subclass 485 visa. Moreover, the day his visa was cancelled, he had a CoE to study a Master of Business and was enrolled full-time despite having a stressful situation with his partner and their child. The cancellation resulted in him having to discontinue his study and losing the $8,600 of fees paid towards the Master of Business.

28. At hearing, the applicant  accepted he had not been enrolled in the relevant period. The Tribunal referred to the matters below as to what it will consider when exercising its discretion to or not to cancel the visa. He repeated much of the evidence referred to in the above-mentioned submissions but added the following.

29. He was asked why he needs to study the Master of Business and he referred to wanting to complete this course to return home to assist his father’s business. He said his father owns one restaurant at the moment but he wants to open a chain of restaurants. The Tribunal questioned whether he is already sufficiently educated for this career aim. He said he has had this aim since 2017. It questioned why he could not study a Master of Business in India and he said the course is better in Australia and especially if he opens the franchise of restaurants in the Middle East. The Tribunal questioned why he had now sought an offer to study the Graduate Diploma of Management (Learning) and he said  as he has no study condition on his visa that is all he could obtain. It discussed with him why he had not been enrolled in the relevant period and he repeated the above evidence. It questioned whether his purpose in Australia was to study from the time he finished the master’s course. He referred to his  marriage, that his wife was ill from September 2022 and the birth of the baby in April 2023. It asked him why he had not mentioned this in his submission submitted in response to the NOICC. He referred to the mental stress in the period as a reason for not studying but said he had never sought professional medical help. He said he had been working in a restaurant since 2021 to date and the Tribunal asked why if he was mentally able to work he could not study. He referred to having financial difficulties and having to support his father and wife. He said he paid $8,500 to study the Master of Business. He referred to the hardship in having to leave his baby and wife if the visa is cancelled.

30. The representative noted he could have applied for the Covid or 485 visa and did not. It referred to the financial difficulties when his father became ill. He noted the applicant was the oldest of six children and when his father became ill he had to provide for him.

31. After the hearing, the applicant’s representative provided a further submission noting the hardship for the applicant and his wife if the visa is cancelled. He attached the Ante Natal records for the applicant’s child confirming he had issues with his heart around the time of his birth. At hearing he said these issues had now been resolved. Also submitted was a letter from Southern Academy of Business and Technology confirming the applicant’s wife is currently enrolled and studying a Diploma of Information Technology

    The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

32. The purpose of the visa grant was for the applicant to travel and study in Australia. The evidence indicates that applicant first arrived in Australia on a subclass 573 Student visa on 20 June 2014 and was applying for or holding student visas until the final visa was cancelled on 7 February 2023. A no study condition was placed on the subsequent bridging visa. While his course progress was slow it accepts until February 2022 his purpose of travelling to and staying in Australia was to study. In this regard he has successfully completed an Advanced Diploma of Leadership and Management, 8 units towards a Master of Professional Accounting and a Master of Project Management and Business. He was enrolled in the Master of Project Management from 19 February 2021 to 23 December 2022 but due to credits given from the previous master’s course, he finished it early on 8 February 2022.

33. The evidence indicates that despite holding a student visa having indicated it was his intention to study in Australia, he did not study for a period of 8 months to October 2022 when he enrolled in the Master of Business course. He has indicated he did not study in this period as he was stressed about his father who was having difficulties with his heart, post having Covid and who ultimately had open heart surgery in mid-2022. The Tribunal accepts this was a situation beyond the applicant’s control but as he continued to work in the relevant period it has difficulty accepting he was too mentally affected to study if he was able to work. It also has difficulty accepting if he was that mentally affected that he could not study that he would not have sought medical help. His evidence is he did not. More convincing was the evidence that as his father was ill and he is the oldest of his six children he needed to work more, especially as it was during Covid to provide for the family in India. The difficulty for the Tribunal is that it does not see the value of achieving the Master of Business to his future when he had already achieved a Master of Project Management and Business  as well as an Advanced Diploma of Leadership and Management. It is unconvinced that the applicant needed or needs to study the Master of Business for the reasons he claims, to extend his father’s one restaurant to a franchise business when he had already completed similar courses in Australia. It accepts he paid $8,500 to this course in making this finding.

34. As he did not raise it in his response to the NOICC it does not accept that prior to October 2022 his wife’s difficult pregnancy and their relationship had any bearing on why he could not be enrolled in the period. It therefore does not accept post February 2022 his purpose in Australia was to study while holding the Student visa. It accepts since February 2023 he has been unable to study due to his visa conditions.

35. As to whether he has a compelling need to remain in Australia, it accepts an Indian master’s degree would not be as good or as rated highly as an Australian masters. However, as there are courses available in India and while they may not be as good or as varied, it does not accept studying in Australia for the reasons he claims vis a visa India represents a compelling need to remain in Australia. This is particularly so as he already holds a master’s degree from Australia.

36. It views as compelling that his wife and child are in Australia and that if the visa is cancelled he will be separated from them. It notes medical evidence that his wife has limited support in Australia. It is difficult to assess the weight to be placed on this when his wife is applying for a further student visa, which is with the department to decide and when she has not made much course progress, albeit due to being pregnant and having to look after the baby as noted in the letter from her doctor. The evidence indicates she is currently enrolled in a Diploma of IT. On balance it accepts this represents a compelling need for the applicant to remain in Australia, albeit temporarily.

37. Overall, despite questioning whether his purpose post February 2022 was to be in Australia to study while holding a student visa it gives this factor some weight in exercising its discretion not to cancel the visa due to his wife and baby remaining in Australia.

    The extent of compliance with visa conditions

1. The applicant did not comply with condition 8202(2) as he was not enrolled in a registered course of study from 8 February 2022 to 18 October 2022  when he enrolled in the Master of Business on 19 October 2022. The Tribunal considers this period of 8 months of non-enrolment to be of concern, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa. It does take into consideration that he finished his course early and his enrolment in the Master of Project Management and Business was supposed to end in December 2022.

2. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his previous visas, which he has held since 2013.

3. His lack of enrolment leads to the Tribunal to place some weight in favour of it exercising its discretion to cancel the visa.

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

4. At hearing the applicant referred to being unable to complete his studies in Australia, the effect of having a cancellation decision on his visa to his future ability to open a business in the Middle East and that studying in India is not as good.

5. Of more concern to the Tribunal is the hardship caused by the separation from his wife and small child. He advised at hearing that as his visa has been cancelled he is unable to apply with his wife or be a dependent on her visa.

6. The Tribunal gives this consideration weight in favour of exercising its discretion not to cancel the visa.

   Circumstances in which the ground of cancellation arose

7. The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as he was not enrolled in a course of study between  February 2022 until he submitted a COE to study a Master of Business in October 2022. The applicant has advanced several matters that impacted on his ability to study as outlined above. He has referred to the mental health difficulties he suffered as a result of his father’s heart issues and ultimate operation and having to finance his family in India as a result. For the reasons outlined above it does not accept that these matters led to him suffering such mental health issues which rendered him being unable to be enrolled and study in the relevant period. As noted above, the Tribunal is of the view if he were so mentally unwell he could not study he would have sought medical assistance, which he did not and also been unable to work. However, he indicated at hearing he worked from 2021 through the period of non-enrolment.

8. The Tribunal accepts financial difficulties due to his father’s illness may have impacted on his ability to study but has questioned whether his purpose in the period was ever to study due to the value of a Master of Business to his future career aim, as outlined above.

9. Therefore, the Tribunal gives this neutral weight.

   Past and present behaviour of the visa holder toward the Department

10. There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past. The Tribunal gives this consideration neutral weight.

    Whether there would be any consequential cancellations under s.140

11. While the applicant’s wife and child are in Australia they are not dependents on his student visa. There is therefore no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor neutral 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

12. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

13. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia, following the expiry of his student visa. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12. The applicant provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

14. The Tribunal gives this consideration neutral weight.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

15. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.

16. There is information before the Tribunal that a decision to cancel the applicant’s visa could be in breach of the Conventions of the Rights of the Child (CROC) due to a separation of the family unit, albeit temporarily. This also depends on whether the Department grants the applicant’s spouse a student visa.

17. The Tribunal gives this consideration weight in exercising its discretion not to cancel the visa.

    Any other relevant matter

18. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are aspects that are significantly favourable to the applicant and exercising its discretion in favour of not cancelling the decision.

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

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Gabrielle Cullen
    Senior 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.