Afzal (Migration)

[2021] AATA 1310

Afzal (Migration) [2021] AATA 1310 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Fahad Afzal

CASE NUMBER:  1933902

HOME AFFAIRS REFERENCE(S):          BCC2019/3329799

MEMBER:Vanessa Plain

DATE:19 February 2021

PLACE OF DECISION:  Melbourne

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 19 February 2021 at 4:38pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –breached condition 8202(2)(b) – applicant has not maintained enrolment in a registered course– medical condition – applicant’s disability have impacted upon his capacity to study – degree of hardship – compassionate and compelling circumstances– decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 November 2019 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had breached a condition of her visa, namely, condition 8202(2)(b). 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. The applicant appeared before the Tribunal on 19 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Awash Prasad, Director of Legal Services at Northern Health.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(b) 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?

8. Condition 8202 provides as follows:

   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

   [...]

   (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.

9. Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

10. The applicant’s visa was granted for the purpose of studying a Diploma of Science and a Bachelor of Information Technology and Systems at the Edith Cowen University which is an AQF level 7 course.

11. Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 23 October 2018 the applicant’s enrolment in the Bachelor course was cancelled by the education provider and he did not re-enroll in an AQF level 7 course until 31 October 2019, when he obtained an enrolment in  Bachelor of Business to undertake study during the period 22 March 2021 until 31 December 2022.

12. PRISMS further indicated that in the period in which the applicant was enrolled in a level 7 course, he held enrolment in a Diploma of Automotive Technology, which commenced on 26 September 2018.  This enrolment is at AQF Level 5.  As the applicant was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to him.

13. On 22 October 2019, a Notice of Intention to Consider Cancellation of Visa was sent to the applicant.

14. By written response dated 29 October 2019 and 4 November 2019, the applicant responded to the NOICC.  In his response the applicant did not dispute the grounds for cancellation.  He stated that he found the Diploma in Science too difficult academically, so he enrolled in the Certificate III and IV in Automotive Studies and the Diploma.  He successfully completed the Certificate III and IV.  He said further that he has secured a place in a Bachelor of Business which he intends to start after completing his Diploma in Automotive Technology.  He said further that his failure in his Diploma of Science (preceding the Bachelor of IT) caused him distress, but he is now progressing well academically. 

15. At the hearing on 19 February 2021, the applicant did not give evidence that was inconsistent with the matters he set out in his NOICC response.   

16. Based on the above, the Tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.

    Consideration of the discretion to cancel the visa

17. 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 Procedural Instruction ‘General visa cancellation powers’.

18. The facts of this case are somewhat unique. 

19. On 13 December 2019, the applicant was diagnosed with Febrile Infectious Epilepsy Syndrome and admitted to the Epping Hospital in Melbourne, Victoria.  Due to the nature of that condition, he has been involuntarily hospitalised at Epping Hospital and subsequently Broadmeadows Hospital since that time. 

20. The Tribunal heard detailed evidence from the Director of Legal Services at Northern Health, Mr Prasad, as to the background and current status of the applicant.

21. Mr Prasad informed the Tribunal as follows:

    ·   The applicant was admitted to Epping Hospital in December 2019 and diagnosed and treated until April 2020, when he was transferred to the Broadmeadows Hospital

    ·   Northern Health has provided medical care to the applicant since his admission and is the clinical opinion of the applicant’s treating physicians that he does not have the capacity to legally care for himself.  On that basis, the applicant remains in the custody of Northern Health and the hospital cannot discharge him due to the duty of care it owes the applicant. 

    ·   The applicant’s condition is not improving.  Northern Health has provided all possible medical care and no further medical care if going to improve the applicant’s condition in the opinion of his treating physicians.  The applicant remains in a ward where he receives 3 meals a day, but he is not receiving further medical treatment.

    ·   The hospital has applied for a guardianship order for the applicant and a guardian has been appointed to manage the applicant’s affairs.  The applicant has also be appointed a specific case officer at the Department of Home Affairs. 

    ·   It is the opinion of the hospital that the applicant could benefit from further occupational therapy once he returns to his home country and it is further possible that the applicant may be able to study at an appropriate level in the future, if his condition improves. 

    ·   The hospital has made arrangements with the applicant’s guardian and family to discharge the applicant into the custody of a family friend for the purpose of the family friend accompanying the applicant on an aeroplane for a flight back to his home country.  The Hospital will not discharge the applicant into the custody of the accompanying third party until they are in receipt of x2 flight tickets, demonstrating that the applicant and his family friend have a confirmed flight home.   

22. The Tribunal further notes that throughout the course of 2020, it has received and granted several adjournment requests in relation to this hearing.  The Tribunal has sighted photographs throughout the course of 2020 which plainly reveal the applicant to be hospitalised and disabled.  The Tribunal has read a brief report as the the applciant’s medical condition and places significant weight upon the evidence of Mr Prasad, as to the applicant’s current circumstances.

23. The applicant gave evidence form hospital.  He informed the Tribunal initially that he wished to withdraw his case.  He said he had consulted with various advisors and family and wished to return home.   The migration agent informed the Tribunal that this was the first time that she had been made aware that the applicant wishes to withdraw his case.

24. The Tribunal held significant concern that the applicant did not appreciate the ramifications of seeking a withdrawal in the circumstances.  The applicant appeared to be under the impression that withdrawing his case meant that he could return home when he was able to and obtain an extension of his visa until he was well enough to travel. 

25. Further, Mr Prasad informed the Tribunal that the applicant held a concern that he did not want to contest the Tribunal hearing and be unsuccessful, due to his medical condition and have this fact harm his prospects for applying to study in the future. 

26. The Tribunal explained to the applicant that if he sought to withdraw his application in the Tribunal, the decision of the delegate would stand.  The Tribunal was concerned that the applicant may not have understood this explanation.  Given that the applicant has a guardian and is unable to care for himself, the Tribunal had serious concerns about his capacity to give evidence before the Tribunal and genuinely understand the consequences of seeking to withdraw his case from the Tribunal.

27. Having taken into account all the matters set out above, the Tribunal is firmly of the view that the cancellation of the applicant’s visa must be set aside.

28. The Tribunal explained to the applicant that is his visa remains cancelled, he may be prevented from applying for a visa in the future and this consequence may not have been understood by him, when he asked the Tribunal to withdraw his case.

29. The Tribunal is of the view that based on the applicant’s study history, he has clearly established that his primary purpose for being in Australia was for the purpose of study and after he remedied his enrolment level when he felt he was able to do so.  He responded promptly to the NOICC and has not breached any other visa conditions.  He has communicated continuously with Department staff and the Tribunal regarding his medical status and visa status.  Notwithstanding that he suffered from a very serious medical condition in December 2019, rather than during the period of lower level enrolment, it is clear that the applicant is severely disabled and the Tribunal is satisfied that the applicant’s disability may very well have impacted upon his capacity to study generally. 

30. The Tribunal gives these matters serious weight in favour of not cancelling the applicant’s student visa.     

31. The Tribunal further considers that the degree of hardship that may be caused to the applicant as a result of the visa cancellation would be substantial in the circumstances, because the applicant stated to the Tribunal that he wished to study in the future if he is able to do so.  If the applicant’s visa were cancelled, that may impact upon the applicant’s  capacity to obtain a student visa in the circumstances. 

32. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent him from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude him from being granted a visa for a specific period of time in the future.

33. These are mandatory and intended consequences of the legislation and given that the circumstances giving rise to the breach were not reasonably within the control of the applicant, specifically, the applicant’s medical condition, I consider this to be manifestly unfair and the Tribunal there gives this consideration weight against cancelling the visa.

34. There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before me, I am unable to give any weight for or against cancelling the visa for this consideration.

35. The Tribunal has no further evidence before it of any other relevant matters.

36. The matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on all the evidence set out above, that the reasons for the breach of the visa condition were not matters that were wholly within the applicant’s control and the Tribunal is satisfied, that there are extraordinary compassionate and compelling circumstances which warrant the setting aside of the visa cancellation in the circumstances.   

37. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

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

    Vanessa Plain
    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.