Abir (Migration) - [2018] AATA 4713

Abir (Migration) [2018] AATA 4713 (9 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rubaiyet Shamsuddin Abir
CASE NUMBER:  1809928
HOME AFFAIRS REFERENCE(S):           BCC2016/2415349
MEMBER:David McCulloch
DATE:9 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 09 October 2018 at 10:08am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – family illness – medical condition – medical certificate – course progress – failed subjects – minimal course attendance – studied unregistered courses – credibility concerns

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

CASES
M v MIMA (2006) 155 FCR 333
MIMIA v Sun (2005) 146 FCR 498
Singh v MIBP [2017] FCAFC 67

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 September 2016 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).
The applicant is a national of Bangladesh, born on 11 December 1993. The visa that has been cancelled was granted on 20 December 2012 for a stay period until 15 March 2017. That visa was subject to condition 8202.
On 16 August 2016 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 15 May 2015. The applicant provided a written response to the NOICC. On 23 August 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.
The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
The Tribunal has already undertaken a review of this decision. The Tribunal made a decision dated 18 December 2017 affirming the delegate’s decision to cancel the visa. The applicant sought judicial review of that decision. By consent, the matter was remitted to the Tribunal to re-determine according to law. This was on the basis that the Minister conceded that the decision was affected by jurisdictional error. Specifically, the Tribunal failed to have regard to a request for an extension of time. There was a mistake of fact in the Tribunal finding that no request for an extension of time had been made.
RIGHT TO HEARING ON REMITTED APPLICATION
The Tribunal on the remitted application made a written request to the applicant on 28 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Abir (Migration) [2018] AATA 4713
Case: [2018] AATA 4713
Decision Date: 9 October 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573, was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course and satisfactory course progress and attendance. The applicant contended that various personal circumstances, including family illness and issues with educational institutions, constituted extenuating reasons for non-compliance.

The primary legal issue before the Tribunal was to determine if the applicant had contravened condition 8202 of their visa. Specifically, the Tribunal had to assess whether the applicant was enrolled in a registered course as required by subclause 8202(2). If a breach was found, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, taking into account the applicant's submissions regarding compelling and compassionate circumstances, as well as relevant government policy guidelines.

The Tribunal found that the applicant had not complied with condition 8202(2) as they were not enrolled in a registered course between May 2015 and September 2016. Despite the applicant's detailed explanation of personal hardships, including family illness, financial difficulties, and mental health struggles, the Tribunal concluded that these circumstances did not outweigh the breach of the visa condition. The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The combined effect of ss.360(3) and 363A means that once the applicant’s entitlement to appear has been lost, the Tribunal is no longer permitted to hold a hearing (see Singh v MIBP [2017] FCAFC 67 (North, Bromberg and Bromwich JJ, 27 April 2017); MIMIA v Sun (2005) 146 FCR 498 at [50], M v MIMA (2006) 155 FCR 333 at [46]).CONSIDERATION OF CLAIMS AND EVIDENCE 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.Did the applicant comply with Condition 8202? 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). In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that, as at 7 September 2016, he had not been enrolled in a registered course of study since 15 May 2015. This was when the applicant failed to commence his studies in a Bachelor of Commerce in which he had been enrolled. Information from government systems indicates that the applicant enrolled on 13 September 2016 in a Bachelor of Business. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).Consideration of the discretion to cancel the visa Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.David McCullochMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).Consideration of the discretion to cancel the visa Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters. The applicant provided to the Tribunal in respect of the initial review a detailed Statutory Declaration dated 23 October 2017 setting out various claimed extenuating, compelling and compassionate circumstances for the breach as follows (not corrected for spelling or grammar):1. I was born on 11 December 1993 in Bangladesh.2. On 26 January 2013, I arrived in Australia as the holder of a Subclass 573 Student Visa.3. When I arrived in Australia I started a Foundations Commerce Course at the University of Sydney, which I completed on 04 December 2013. Unfortunately, I did not achieve sufficient marks in my Foundations Course to obtain enrolment in a Bachelor Degree at the University of Sydney following completion of my studies.4. Following my failure to obtain entry into studies at the University of Sydney, I began exploring other my options at other reputable universities.5. After making several includes I initiated contact with Macquarie University. I was advised that if I completed a Diploma of Business through the Sydney Institute of Business and Technology (SIBT) they would guarantee my enrolment in the second year of a Bachelor of Business.6. I found this pathway to be very inviting, and I subsequently obtained enrolment on 24 February 2014.7. I completed two semesters at SIBT, and then I was informed that Macquarie University would not honour their previous offer to progress me into the second year of a Bachelor of Business.8. After I was advised that the offer would no longer be honoured, they started to pressure me towards enrolment in the full Bachelor Degree, and even advised me that I would receive no exemptions from my previous studies from SIBT.9. This change in the offer caused me to become very disenfranchised with this institution. I was shocked that they were willing to revoke their previous promises with no warning, and wouldn't even acknowledge my previous studies in a qualification that had previously guaranteed me second year entry into their Bachelor Degree.10. I began to feel a significant degree of stress at this time, and I felt as though I was being exploited financially. I genuinely believed that I would have been given enrolment into a second year of a Bachelor of Business at Macquarie University, and now they were demanding I pay for the full course; in addition to the year I had spent studying a Diploma of Business which was now essentially worthless.11. I contacted admissions at Macquarie University, who advised they would look into the issue. I had already paid my fees for Semester 2 in 2015; which was around $10,000.12. Around this same time, I began to experience personal hardships, In addition to the stress caused by my enrolment; I was informed that my Grandmother has passed away in April 2015. This loss impacted me greatly, as I was very close with my Grandmother.13. I wanted to return to Bangladesh for the funeral, but I did not have any money to pay for a return ticket. This caused me a great deal of pain, as I missed the last opportunity to go and say goodbye to her.14. At this same time, both my Grandfather and Father became unwell and had to seek medical attention. My world felt like it was falling apart around me. I retreated into myself during this time, and I gained a significant amount of weight due to a lack of exercise and eating unhealthy comfort foods to cope. My confidence was at an all time low, and I felt like a shell of my former self.15. Due to all the stress and pressure I was experiencing, I began to suffer from depression. This caused me to feel significant lows, and I could not think coherently. I attended my general practitioner, Dr Quang Pham and he prescribed me the anti-depressant Lexapro in August 2016.16. Due to my personal situation, I did not attend Semester 2. I made the decision to leave SIBT, however they simply cancelled my CUE without notifying me and retained my $10,000. Without this money, I was unable to obtain a new COE as I needed this money to pay the initial course deposit.17. In early 2016, I also had an issue with my accommodation. Due to all my stress, I got into an altercation with my landlord; resulting in him kicking me out of my accommodation. For several weeks I had to move between numerous different location, staying with friends and sleeping on lounges until I could finally locate a permanent place to stay.18. After a long struggle, I finally received a full refund from SIBT in February 2016. I immediately enrolled in a Diploma of Business with the international Institute of Commerce and Technology, which I completed on 19 August 2016.19. After I completed my Diploma of Business, I obtained enrolment in the Australian Institute of Higher Education, who granted me 7 exemptions due to prior studies. I am currently studying a Bachelor of Business, and I am currently completing my third semester. I am achieving good course progress, and I finally feel as though I am back on the right path.20. When I reflect of the trouble that I went through, I realise that at that time I was very naïve and immature. I was a 21 year old boy in a foreign land, who was completely out of his depth. I did not handle my personal struggles well, and I failed to address significant issues such as the gap in my enrolment.21. While this period in my life has been very challenging, I believe that a great deal of maturity has developed due to my experience; and in a way it was the wake up call I needed to start taking responsibility for my life, and that while troubles will arise in fife I cannot get bogged down by them.22. Following these incidents, I have made significant changes to my lifestyle and routine to assist me in coping with stress. I have since joined a gym, which I attend regularly for weight sessions. This helps me work out any stress I am feeling, while also helping me to feel better about my personal image.23. In addition to the gym, I have increased my involvement in social sports. This allows me to continue to be fit and active, and also meet new people and make new friends. This has been very helpful in helping me settle down and have a more active social life.24. Since the incidents, a couple of my friends from Bangladesh have since migrated to Australia to study. Having my childhood friends close by has increased the support network available to me in Australia; and I know I can always rely on them to help me when needed.25. Since I recommenced studies, I have not breached any of my visa conditions; and I am making good progress.26. I believe that my increased maturity has shown in my recent handling of an incident in late 2016. In October 2016, one of my neighbours was acting very aggressively out the front of his property. I approached him to calm him down, and he assaulted me by punching me in the face. 27. After I was assaulted, we called the police who arrested him. I had to attend court as a witness for the police. While all this was very stressful for me, I did not allow it to impact my studies. While all this occurred I continued to attend classes and obtain good results. I reflect on my handling of this incident as a true indication of how far I have come and this motivates me to continue to strive towards growth and maturity in life.28. If I am unable to complete my studies, I will be devastated. I am learning so much in my current degree, and I am excited about the future career prospects I will have in Bangadesh when I complete my degree.29. If I cannot complete my degree, it will bring a significant degree of shame upon my in the eyes of my family; who have Invested so much in my future.30. I hope that you will see that I am a different person now, and that the immaturity which caused me to breach my visa conditions is gone. I hope that you will give me a second chance to complete my studies, knowing that I will not abuse such an opportunity.