Ahmad (Migration)

[2019] AATA 4116

Ahmad (Migration) [2019] AATA 4116 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Mahmood Ahmad

CASE NUMBER:  1907442

HOME AFFAIRS REFERENCE(S):     BCC2019/161478

MEMBER:Dominic Triaca

DATE:9 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2019 at 11:35am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of study no longer exist – lack of academic progress – substantial period of non-enrolment – medical condition – insufficient medical documentation – deferral request not accepted – decision under review affirmed

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

CASES
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs & Migration Review Tribunal [2005] FCA 211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that had not been enrolled in a registered course of study since 27 April 2018. 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 7 August 2019 to give evidence and present arguments.   

4. The applicant was represented in relation to the review by his registered migration agent who made submissions on his behalf.

5. 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

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The delegate’s finding was based on a report from the Provider Registration and International Student Management System (PRISMS) that stated the applicant had not been enrolled in a registered course of full time study since 27 April 2018. The delegate identified the relevant period from 27 April 2018 to 26 March 2019 as being the period in which the applicant was not enrolled in a registered course of study. This amounted to approximately 11 months during which the applicant was in continuous breach of the conditions of his visa.

10. In his oral evidence before the Tribunal, the applicant confirmed that the delegate’s decision in relation to the cancellation of his enrolment on 27 April 2018 was true and correct as was the fact that he remained unenrolled for that period of approximately 11 months after the cancellation of his enrolment.

11. Accordingly, the Tribunal is satisfied that the applicant was not enrolled in a registered course of study for the period 27 April 2018 to 26 March 2019 and so finds that the applicant was in continuous breach of condition 8202(2) of his visa for a period of approximately 11 months from 27 April 2018.

    Consideration of the discretion to cancel the visa

12. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    Applicant’s Evidence.

13. In his evidence before the Tribunal, the applicant stated the following:

    (a)He arrived in Australia on 1 March 2016 as a visitor.

    (b)Upon his arrival he realised the opportunities available to him in Australia and decided he would study here.

    (c)He obtained a student visa on 28 July 2016. First he studied English and then commenced a Bachelor of Information Systems at Holmes Institute in November 2016;

    (d)He provided an academic transcript that shows he completed 3 trimesters in that course to the end of 2017;

    (e)He says that in 2018 he developed a medical issue in that he had sinus problems, a severe headaches and a throat infection. He says he was unable to study and requested a deferral from Holmes for a period of 3 months commencing 19 March 2018 until 22 June 2018 for a medical reason;

    (f)He provided a Medical Certificate from Dr Khan at Westgate Medical Centre dated 14 March 2018 that relevantly states the applicant “is having significant tiredness and poor concentration. He is under investigation. It is hard for him to continue with study at this stage, so he is advised to take rest for a few months.”

    (g)Dr Khan recommended he obtain a blood test and prepared a request to send to Melbourne Pathology.  However the applicant stated that he did not attend for a blood test and he did not seek further medical treatment. He says that he stayed at home and treated his symptoms with Panadol, Neurofen and “traditional steam”.

    (h)Holmes refused his request for a deferral stating by email of David Mustafa, Campus Director at Melbourne dated 7 April 2018 that his “medical documentation is not sufficient or definitive as to why you need to take a full trimester off  study. I would be requiring further information before it can be assessed properly.”

    (i)The applicant provided an email that he sent to Mr. Mustafa on 9 April 2018 attaching a completed request for deferral and the March 14 medical certificate.

    (j)He says that there was no further correspondence entered into between him and anyone at Holmes. He says that he attended a meeting at the office of Mr. Mustafa at Holmes in about April 2018 in relation to his deferral request. He does not recall that date but states that it was around the time that Holmes was experiencing protests by their students on campus.

    (k)He states that he was given the impression in this discussion that Holmes had accepted his medical evidence and would grant the deferral as requested. However, he confirms that he did not receive any written confirmation that his deferral request was accepted.

    (l)He states he did not receive any written confirmation from Holmes that it was going to cancel his CoE or after it had cancelled his CoE in April 2018.

    (m)He states that he remained unwell for the balance of 2018. He did not obtain any further medical treatment and does not have any medical evidence to support the assertion that his medical condition was of such a nature that he was unable to study for the duration of 2018.

    (n)He says that he intended to return to study in March 2019. However, before that time he received the NOICC from the Department on 20 February 2019. He re-engaged with Holmes and says he had recovered from his illness and he was “negotiating with Holmes Institute for re-enrolment.”

    (o)He provided further documentation in the form of a hearing assessment by Audika dated 27 May 2019 that states he has mild to moderate hearing loss bilaterally, worse in the left at low frequencies and recommends further medical investigation.

    (p)He also provided an offer to study a Diploma of Business at Gen Institute. He says that he obtained this offer to demonstrate his intention to return to study but, if his visa is not cancelled his intention is to return to complete Information Systems at Holmes or another Institution.

    (q)If his visa is cancelled, he stated he would return home to Pakistan.

14. The Tribunal has also read and had regard to the applicant’s written response to the Department’s Notice of Intention to consider cancellation of student visa (NOICC).

    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

15. The term compelling was the subject of detailed consideration by Crennan J (as her Honour was then) in Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (“Paduano”).[1] Her Honour set out the jurisprudence in relation to the words “compel” and “compelling” and the various dictionary meanings and stated, relevantly:

    “At [35] A judge must bring to bear to the task of interpreting words of ordinary meaning, his or her understanding of common usage, especially having regard to the purpose, context and language of the relevant delegated legislation.

    [1] Paduano v Minister for Immigration and Multicultural and Indigenous Affairs & Migration Review Tribunal [2005] FCA 211; (2005) 143 FCR 204 [31] – [45]

16. Commenting further on the adjective “compelling” in the Regulations, at [37], Crennan J said (emphasis added):

    The ordinary meaning of the adjective ‘compelling’ is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that ‘compelling’, where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that ‘compelling reasons for the absence’ must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity or cognate with the reasons given as examples in MSI 356.

17. The applicant’s purpose of travel to Australia was not study. He arrived as a tourist. The Tribunal accepts that his purpose changed after he arrived in Australia and in July 2016 he obtained a Student Visa and it appears that for a period between about July 2016 and December 2017 he studied in Australia and his purpose for remaining in Australia was to study.

18. However, the Tribunal considers that at some point in 2018 studying was no longer the applicant’s purpose for remaining in Australia, noting that he was in breach of the conditions of his student visa for approximately 11 months.

19. The Tribunal acknowledges that the applicant now states that he “contacted Holmes Institute for re-enrolment starting in March 2019 intake” and he was “negotiating with Holmes Institute for re-enrolment. It also has regard to the fact that on 5 August 2019 he obtained an offer from Gen Institute commencing on 17 November 2019 to study a Diploma of Business. The Tribunal also takes into account his statement that the Diploma of Business and if his visa is not cancelled, he would seek to complete his Information Systems course.

20. Having regard to the applicant’s evidence, the Tribunal does not consider the applicant has a compelling need to travel or stay in Australia. The Tribunal accepts that he had a purpose of studying in Australia for a period between 2016 and 2018. It also accepts that he intends to study in Australia in the future. However, given his conduct in Australia set out below and his lack of academic progress since 2017, the Tribunal gives this only little weight towards the visa not being cancelled.

    The extent of compliance with visa conditions.

21. The applicant confirmed that he was not enrolled in a registered course of study from 27 April 2018 until the cancellation of his student visa on 26 March 2019, being a period of approximately 11 months which was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for a substantial period of time weighs  towards the cancelling of the visa unless the Tribunal accepts the reasons for non- enrolment.

22. In his evidence, the applicant stated reasons for his non enrolment as a combination of factors starting with a medical condition that he developed in early 2018, and exacerbated by Holmes failing to accept his request for a deferral in about April 2018 and a lack of communication in relation to the cancellation of his enrolment.

23. The Tribunal accepts that the applicant developed a medical condition in early 2018 and this led him to seek a deferral from Holmes. This is evidenced by the provision of a medical certificate from Dr. Khan of Westgate Medical Centre dated dated 14 March 2018 and the emails between him and David Mustafa dated 15 March 2018, 7 April 2018 and 9 April 2018 that were provided to the Tribunal.

24. However, the email of Mr. Mustafa dated 7 April 2018 makes plain that Holmes did not accept the applicant’s medical certificate was sufficient to grant a deferral and there is no evidence that the applicant provided any further documentary evidence to Holmes in response to the letter. His email dated 9 April 2019 appears to attach a request for deferral form and re-submit the medical certificate from Westgate Medical Centre.

25. The applicant says that he had a subsequent meeting with Mr. Mustafa in April 2018 and at that meeting he was given the impression that Holmes was satisfied with his medical evidence. The Tribunal does not accept this evidence. It is directly contradicted by the contemporaneous email and it is illogical that Holmes would communicate with the applicant via email to raise concerns with the sufficiency of material provided, yet not engage in any further written communication to confirm it had changed its position, or simply confirm it had granted the deferral as requested.

26. Further, the Tribunal considers that it not surprising that Holmes considered the applicant’s medical certificate to be insufficient and not “definitive as to why you need to take a full trimester off from study,” as on any view the medical certificate submitted by the applicant was not definitive at all, particularly in circumstances in which the applicant’s Doctor states he is under investigation and requests a blood test be undertaken, only to find that no such blood test was obtained by the applicant.

27. The applicant says that Holmes did not advise him that his enrolment was cancelled in April 2018 and he assumed that his deferral request had been accepted. The Tribunal does not accept this evidence. Whilst there is always the possibility that an email can be missed, or a letter not received, it was the applicant’s responsibility to ensure that he had, in fact, deferred his studies.

28. In this case, the applicant’s request for an deferral was for a 3 month period ending on 22 June 2018, the Tribunal considers that even if the applicant was granted the 3 month deferral he was seeking in the circumstances he suggests, he must have known that he had requested a 3 month deferral and this period was due to end in June 2018. On any view, he must have been at least aware from 22 June 2018 that he was living in Australia, on a student visa, without studying or being enrolled to study for a further 8 months before he says he attempted to “negotiate” with Holmes for his return to study.

29. The Tribunal does not consider that the applicant’s medical evidence demonstrates that his medical condition was such that he could not study or return to study for a period of 11 months. He obtained one medical certificate in March 2018. This states he needed to rest for a “few months”. He says he did not seek further medical treatment, preferring to treat his symptoms with Panadol, Neurofen and “steam”. Whilst he states his symptoms continued past June of 2018, the applicant’s evidence falls well short of what the Tribunal considers would demonstrate he was unable to study due to a chronic health issue and the Tribunal gives this some weight towards cancellation of the applicant’s visa.

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

30. In his written response to the NOICC, the applicant states his parents have invested nearly 1.5million Indian Rupees to provide him with an education in Australia. If his visa is cancelled, and he returns to India without any qualification his family will be in dire hardship.

31. The Tribunal accepts that returning to India without the qualifications he sought to achieve may face some stress and anxiety and considering the evidence I accept that the applicant would suffer some degree of hardship if the visa remains cancelled and I give this some weight towards not cancelling the visa.

    Past and present behaviour of the visa holder towards the department.

32. The applicant appears to have co-operated with the Department and there is no adverse evidence against the applicant in this regard. I give this some weight towards not cancelling the visa.

    Whether there would be any consequential cancellations under s 140

33. There is no evidence suggesting that if the applicant’s visa is cancelled, any other persons visa will be cancelled under s 140 of the Act.

34. 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, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

35. The Tribunal recognises that, if the visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. However, he may be eligible for a bridging visa that would allow his lawful presence in Australia for a short period of time so that he can finalise his affairs in Australia before departing.

36. If his visa is cancelled, the Tribunal also recognises that he will be subject to s 48 of the Act which means he will have limited options when applying for further visas, including the possibility that he may not be granted a temporary visa for 3 years from the date of the cancellation.

37. The Tribunal considers these are the intended consequences of the legislation.

38. In any event, the applicant’s evidence was that if the visa remained cancelled he would return home to India and therefore there is no indication that he would become unlawful or be subject to detention so I give this factor no weight.

    Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation.

39. The circumstances of the case are not such as to engage Australia’s international obligations.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

40. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.

    Any other relevant matters.

41. The Tribunal notes that at the conclusion of the hearing, the applicant’s representative made submissions to the effect that there was a “systemic problem” at the Holmes Institute in that in his experience it was a common occurrence that students at Holmes were not notified of a cancellation of their enrolment by the institution. In circumstances in which there was no evidence of such a “systemic problem” tendered by the applicant or his representative I have paid that assertion no regard.

1. However, I note that even if there was evidence provided in relation to this point, it would not have altered my decision. I consider that the critical issue with regard to the applicant’s dealings with Holmes is not whether or not the institute communicated with him effectively in relation to either the deferral or the cancellation of his CoE. Rather, the issue that I have placed weight on is that taking the applicant’s evidence at its highest, if his deferment was accepted by Holmes it would have been for a 3 month period concluding in June 2018 and I would expect a genuine student, having been granted a 3 month deferral, to return to the institute after that time and either re-commence studying or, if he continued to be unable to study for personal reasons, seek a further deferral and provide evidence to support the application. This applicant did neither and there is no evidence that he took any steps towards re-engaging in study for a further 8 months.

2. There appear to be no other relevant matters of significance in relation to the present application for review.

3. Having regard to all the evidence before the Tribunal, and all the circumstances outlined above, the Tribunal is satisfied that the applicant’s visa ought to be cancelled.

   DECISION.

4. The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) visa.

   D. Triaca
   Member

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(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.