Ahmad (Migration)

Ahmad (Migration) [2022] AATA 1227 (11 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Waseem Ahmad
CASE NUMBER:  2010179
HOME AFFAIRS REFERENCE(S):          BCC2019/1473488
MEMBER:David McCulloch
DATE:11 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 11 March 2022 at 9:42am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – not enrolled in registered course – discretion to cancel visa – non-compliance conceded – health and family circumstances – diagnosis of high blood pressure and sudden death of father – discretion to decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 July 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 (Cth) (the Act).
The applicant is a national of Pakistan born on [Date]. The visa that has been cancelled was granted on 7 August 2017 for a stay period until 29 May 2020. That visa was subject to condition 8202.
On 18 June 2019, 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 since 18 February 2019. The applicant provided a response to the NOICC on 23 June 2019. On 29 July 2019, the delegate decided to cancel the student visa held by the applicant on the basis that the applicant breached condition 8202 of his visa in relation to the requirement to be enrolled in a registered course. The applicant sought review of the delegate’s decision.
The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
On 20 November 2019, the Tribunal affirmed the delegate’s decision. On 10 June 2020, the Federal Circuit Court remitted the matter by consent. The Court notes that the Minister concedes that the Tribunal decision was affected by jurisdictional error when considering the hardship that cancellation might cause to the applicant as the Tribunal failed to consider the applicant’s claim that he was unable to get the requisite standard of medical care in Pakistan. The Minister further accepts that the error was material to the Tribunal decision.
The applicant appeared before the Tribunal on 4 March 2022 at 9.30am to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
Information held by the Department of Home Affairs (the Department) in the applicant’s movement details indicates that the applicant is currently holding a Bridging visa E (Subclass 050) with the following conditions: 8010 (no work); 8207 (no studies or training); 8401 (must report as specified), and; 8506 (must notify address).
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
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 (Cth). 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 full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study between 18 February 2019 until the visa was cancelled on 29 July 2019.
In the hearing the applicant agreed that he had not been enrolled for this period.
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 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’.
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 a written response to the NOICC which acknowledges the breach to his visa condition. The applicant indicates that this happened unintentionally because of his health condition and compelling circumstances. This is a product of the applicant having been diagnosed with high blood pressure and the sudden death of his father which caused stress and an inability to concentrate on his studies. The applicant indicates that he was reminded by his college as to the start date of his course and he requested that he be enrolled in the next intake and in doing so advised them about his health condition. The applicant indicated that the education provider acted unprofessionally and cancelled his enrolment without notice. The applicant indicates that he wishes to continue studies to acquire qualifications to fulfil his future goals.
The applicant extracts the email that he says he provided to his college which is dated 14 February 2019 in which the applicant seeks a request for enrolment in the next intake. The applicant indicates that he was mistaken in the course start date and has already missed some classes and asks if it is possible to enrol him in the next intake because he is on medication due to high blood pressure and is not able to properly concentrate on his studies.
The response to the NOICC indicates that the purpose of the applicant travelling to and staying in Australia is to obtain qualifications to assist in fulfilling his goals in life. The applicant claims that he will receive inferior treatment in Pakistan for his medical condition. The applicant refers to his doctor indicating that further investigations are needed of his health conditions. The applicant has only shared his health condition with his father as the information will cause stress to the rest of his family. The applicant refers to always abiding by Australian rules and regulations and never committing any offence. It is the applicant’s sincere intention to acquire qualifications that will fulfil his future goals.
The applicant provided an additional ‘statement against the refusal’ to the Tribunal. It seeks to provide a full explanation for all the points that were indicated in the initial decision from the Tribunal.
The applicant agrees that he received an email from the University regarding his course start date. However, because of the applicant’s medical conditions and family circumstances he was not able to focus on anything else. The applicant refers to the loss of his father. The applicant replied to the University asking to be enrolled in the next semester. The provider acted unprofessionally and no response was received. The applicant’s enrolment was cancelled without consultation. The applicant refers to the genuineness of his health condition and medical certificates.
The applicant refers to the hardship he would face in terms of his medical conditions due to inferior health facilities in Punjab. The applicant also refers to wanting to have medical treatment in Australia because his family do not know about his medical conditions. Informing them of this would be a hardship particularly given the loss of the applicant’s father.
Submissions are made as to genuine intention as to study and a reason to not be able to take up the course after February 2019.
The applicant indicated that he arrived in Australia in July 2011 as a student with genuine intentions. He completed a Diploma of Business from 2012 until 2013, a Certificate IV in Frontline Management from 2013 until 2014, a Diploma of Project Management from November 2014 until November 2015, a Certificate IV in HR from 2015 until 2016.
The applicant indicates that he opted for a Diploma in HR which was followed by a Certificate IV in HR Management but was advised by his lecturer after his first semester to go for a Bachelor of Business Accounting as he already had skills which she identified regarding HR management, accounting skills and management skills which are integrated with each other for proper business development.
The applicant indicates he never breached visa conditions in these seven years of study. The applicant was then diagnosed with high blood pressure and the medical condition was compounded by his father’s death. This created pressure including that the applicant thought he was the sole person to take care of his family. The applicant decided to gain knowledge relating to automotives as he had family ancestral property in that area with a high automotive demand. The applicant had to think of ways to support his family in Pakistan. However, the applicant was unable to focus his mind, particularly due to the loss of his father.
The applicant refers to his medical conditions and the fact that he obtained medical letters prior to receiving the NOICC, as he had no idea that such a position would occur where he would have to prove genuine intentions to study. The applicant refers to providing evidence of his father’s death on 23 March 2018. It was a natural death.
The applicant refers to the importance and attributes of his father. The applicant indicates that moving back to his home country without completing his course would create hardship. Only the applicant’s father knew of his medical conditions.
The applicant indicates he does not have intentions to stay in Australia, he just wishes to complete his course and return to Pakistan.
The applicant has provided variously to either the Department or Tribunal the following documents:
·A medical certificate from Dr Joushan Ara dated 11 April 2017 certifying that the applicant was unfit for his usual work/study from 11 April 2017 to 16 April 2017 inclusive.
·A pathology request signed by Dr Joushan Ara dated 18 April 2017.
·A medical certificate from Dr Joushan Ara of A2Z Medical Centre, dated 21 December 2017, which states that the applicant had difficulty concentrating on his study due to his medical circumstances. The certificate recommended reducing two subjects in the semester commencing in March 2018.
·A radiology report from Dr Ali Kyatt dated 16 January 2018, showing no evidence of renal artery stenosis.
·A pathology request signed by Dr Srikrishna Cheruvu dated 30 January 2018.
·A request to Polytechnic Institute Australia dated 26 March 2018 on a relevant form handwritten by the applicant for a deferment from studies in the first semester of 2018. The applicant’s handwritten request indicates that his father died on 22 March 2018 and that he has to return to Pakistan to attend the funeral and thereafter attend to other family matters.
·A medical certificate from Dr Joushan Ara of A2Z Medical Centre, dated 7 November 2018, which states that had difficulty concentrating on his study due to his medical circumstances. The certificate recommended the applicant take a break from study in the semester commencing in September 2018.
·A medical certificate and referral letter to Dr Mo from Dr Joushan Ara of A2Z Medical Centre, dated 20 June 2019, which states that the applicant had difficulty concentrating on his study and needed further investigations and treatment.
·A pathology request signed by Dr Joushan Ara dated 20 June 2019.
·Several ultrasound films.
·A table to monitor blood pressure.
·Prescriptions issued for the applicant for Twynsta.
·A death certificate of Muhammad Nazir Chaudhry, date of death 23 March 2018.
On 16 December 2021, the applicant submitted the following documents at the Tribunal’s request:
·Diploma of Business from Ivy Business College in the name of the applicant, 28 February 2013.
·Certificate IV in Frontline Management from OzStar Academy Pty Ltd in the name of the applicant, dated 12 October 2015.
·Diploma of Project Management from Grand Academy in the name of the applicant, dated 8 February 2016.
·Certificate IV in Human Resources from Grand Academy in the name of the applicant, dated 15 November 2016.
On 20 December 2021, the applicant submitted at the Tribunal’s request transcripts in relation to his Bachelor of Business (Accounting) which indicated as follows:
- In the record of results issued on 20 March 2017 for term 3 the applicant received a Distinction for Information Management Systems and a Fail Requirements mark (final mark >50, but failed to meet one or more of the unit requirements) for Marketing Practice.
- In trimester 2, 2017, the applicant failed three units (Principles of Accounting, Economics for Business and Statistics for Business) and received a Pass mark for Business Law.
The applicant also provided the following documents to the Tribunal:
·An enrolment letter from Australian Health and Management Institute (AHMI), dated 26 August 2020, confirming that the applicant was enrolled from 24 August 2020 to 30 January 2022.
·CoE from AHMI for a Certificate III in Light Vehicle Mechanical Technology, starting from 24 August 2020 until 30 January 2022.
·CoE from AHMI for a Certificate IV in Automotive Mechanical Diagnosis, starting from 31 January 2022 until 15 July 2022.
·CoE from AHMI for a Diploma of Automotive Technology, starting from 18 July 2022 until 16 July 2023.
·A letter applying for work permit, dated 27 August 2020.
The Tribunal wrote to the applicant on 22 December 2021 requesting that the applicant provide a letter from his treating doctor or doctors providing details as to the nature of the medical conditions that he has suffered from since 2017, the past and ongoing treatment he received, and the current prognosis in relation to these medical conditions. The applicant was asked to have his medical providers describe the impact of his conditions on his ability to study or work.
In response, the applicant provided a medical report from Dr Chaitu Cheruvu of Revesby Cardiology, dated 28 January 2022. Dr Cheruvu noted that the applicant attended his practice mainly for documentation regarding his hypertension and student visa cancellation. Dr Cheruvu stated that the applicant last saw him in January 2018 and was advised to have a secondary hypertension screen which he did not perform. The applicant was on medication to manage his hypertension which improved significantly in 2018 and he stopped his medication on his own accord without any medical advice. Since the cessation of his medication in 2018, while his hypertension was severe, the applicant has been asymptomatic and has not really had any symptoms as a result of hypertension. The report is accompanied with referral for pathology tests and scripts for medication.
Dr Cheruvu indicates that he cannot make further comment as to how hypertension affected the applicant’s studies given that the last appointment was in 2018. The report indicates that the applicant advises that he has been essentially asymptomatic from hypertension since the cessation of Zandip medication in mid-2018.
The PRISMS record of the applicant’s study history in Australia shows that he was enrolled in a Bachelor of Business (Accounting) commencing on 27 March 2017 until 27 March 2020. The PRISMS record indicates that this course was cancelled on 20 July 2018 on the basis that the applicant notified cessation of his studies.
The applicant provided the following additional statement to the Tribunal on 3 March 2022, the day before the Tribunal hearing (not corrected for spelling or grammar):
I am Waseem Ahmad and my study was delayed because of medical reasons as well as my father’s death. I am writing this statement to support the hearing in AAT for my student visa.
My study history in Australia
I first landed in Australia on 03/07/2011 as a student. I have completed my Diploma of business from 2012 to 2013, Certificate IV in frontline management from 2013 to 2014, Diploma of project management from Nov 2014 to Nov 2015, certificate IV in HR management from 2015 to 2016. After finishing the first semester of Diploma in HR management at the end of 2016, I was advised by my lecturer to go for Bachelor of business Accounting as I already had skills which she identified in me regarding the HR Management. I started my bachelors of business accounting degree march 2017.
However, as my father’s health condition was not stable in 2017, I was not able to maintain a steady progress in my Bachelor study. I managed to pass the 1st semester but due to the stress and worries on my father’s health condition, I cannot focus on my study and developed serious high blood pressure and was unable to maintain a good result in the Bachelor degree. In Dec 2017, I was diagnosed to have hypertension and in early 2018, my father passed away.
It had a great impact on my mental and physical health, I was not able to study in 2018 and the course provider differed my study for one semester and refused to give considerations on my health condition. The school eventually cancelled my COE in Feb 2019.
On the same month, I enrolled with Adelaide College of technical education (ACTE) the course structure was as follows:
·Certificate 3 in light vehicle mechanical technology (04/02/2019 to 10/02/2020)
·Certificate 4 in automotive mechanical diagnosis (10/02/2020 to 23/08/2020)
·Diploma of Automotive technology (24/08/2020 to 18/04/2021)
As the hypertension was still affecting my ability to study, I requested ACTE for deferral for one semester. I was under the impression that my enrollment is successful deferred but I ACTE instead cancelled my enrollment without notifying me.
I received visa cancellation in July 2019 and lost my right to study.
In Aug 2020 after I lodged my case to FCC, I applied to AHMI for the same set of courses and applied for my study right. I did not expect that my study right was refused and thus after several defers of my course stating date. My enrollment with AHSI is cancelled due to my visa condition limits.
Before this hearing, I applied for Automotive courses again with Apex Institute. I really wish I can have my student visa back to finish my planned study.
Why do I want to study in motor vehicle related coursed?
I made the change in my career plan according to my father’s advice. When he was very sick and my study in Bachelor of Accounting was affected by my concern on his condition, he had the last wishes for me to study something practical so that I can establish a career of my own. He left a valuable property for me and my brother. It is a property in the heart of the Auto market In Rawalpindi ''Chah sultan road'', it will be very beneficial for us to start the business of an automotive shop. Therefore, I decided to study automotive in Australia to bring the necessary knowledges of mechanical technology for my future shop. I believe that my previous management skills learn in Australia will also be helpful in managing my own business in the further. The motor shop will not only be going to be a successful business, but it will also be the best way to remember my father’s love for us.
Why do I need to study in Australia?
In Australia, automotive industry is a well-developed industry. More than 90% Australian families have at least one car and thus the technology here is tested and developed. Learning in Australia will allow me to learn the most advanced skills and technology’s and I will then be confident to provide best services to my future customers. While the car industry is not as developed in Pakistan, it would be difficult for me to find a place to learn similar knowledges.
Further, Australia has advanced education system. I will be learning in a structured way and effectively understand the knowledges. I have been studied in Australia before thus I know the standard education is much better that that in Pakistan.
Thirdly, my Australian qualification would distinguish my shop from local competitors. I will have more comparative advance if I advertise on my specially and experience of the Australia automotive industry. It is very important as it is generally recognized in Pakistan that Australia has a strong automotive industry. Why do I choose these courses?
As I mentioned above, I am looking forward to establish an automotive shop and I need the practical knowledge of skills the most. Although I can hire technicians in my shop, I still need to know the essentials on the technology to completely understand my planned business. Further, as I want to distinguish my business with other competitions, I need deep under standing of the more advanced technologies here in Australia. Therefore, in my course selection, I focused on the package of cert 3 in light vehicle mechanical technology and cert 4 in automotive mechanical diagnosis. Both courses are very practical focused and they together cover every aspect I need to know as an automotive shop owner. I wish to complete the course as soon as possible before I can return to Pakistan and start my career. I believe this combination will give me what I need in shortest period of time.
Financial background
I never had any issues financially. During my study here in Australia, my family has been always supporting me. Since my father passed away, it is my brother Abdullah Chaudhry who keep supporting my study. I understand the cost of living would be about around 23000 AUD and we have more than sufficient income from leased properties to cover that.
My Future Plans.
There are several reasons to go back to my country after my studies. Firstly, it is my career plan to establish an automotive business with my brother on the land left by my father. I will definitely return as soon as I finish my planned study.
Further, I want to get married back in Pakistan and settle down there with my family, if I had any intentions to live my life in Australia I would definitely find someone to get married with but I always have a plan to go back to Pakistan. My father left a valuable property and assets which are enough for me and my family to live a happy life without worrying about any financial issues. There is no reason for me to stay in Australia after the completion of my studies.
I am really hoping to get my student visa back so that I can study my planned course and start my career in automotive.

At the same time the applicant provided the following additional documents:
·A statement from Mr Abdullah Chaudhry, the applicant’s brother, dated 24 February 2022, which ‘guarantees’ a level of financial support to the applicant. The author states his and the applicant’s family own significant assets and income. The author further states that he needs the applicant to finish his study to help him expand his business.
·An account maintenance certificate from Habib Bank dated 25 February 2022 which certifies that Mr Abdullah Chaudhry has been an account holder since 30 October 2014.
·
An account statement of Mr Abdullah Chaudhry bearing account number 0215-79007521-55 which showed a balance of PKR 1,080.50 (approximately $8.30) on

8 February 2022. Two credit transactions were recorded on 23 February 2022 in the amount of PKR 2,500,000 (approximately $19,198) and PKR 500,000 (approximately $3,840), bringing the total balance to PRK 3,301,080.50 (approximately $23,046.30) as at 23 February 2022.
·A family registration certificate showing the applicant is the son of Mr Muhammad Nazir Chaudhry and Ms Shamim Akhter. The applicant has two brothers and one sister.
·A lease agreement between the applicant’s father and Abdul Waheed, dated 17 March 2015, for five years renewable. The lease price was ‘Rs.5,00,000/-‘ (or PKR 500,000).
·Two pages of partial document pertaining to be from the Board of Revenue Punjab. Another two pages that appear to be duplications of the first document were supplied to the Tribunal.
·Five registers of shareholders in land property in Dahgal Village, Rawalpindi, showing the applicant’s father as owner or co-owner. One of the registers appears to be a duplication of a copy already provided to the Tribunal.
·An evaluation report from Fazal E Rabi Associates & Builder, valuing two properties at Plot No. NE-3699, Chaklala Road, Glass Factory Chowk, Rawalpindi, Pakistan and at House No K-531, CH Sarfraz Road, CH Waris Khan, Rawalpindi, Pakistan, both of which are owned by Mr Abdullah Chaudhry, to be PKR 90,000,000 (approximately $691,045) and PKR 75,000,000 (approximately $575,930) as at 19 February 2022. A duplicate copy was supplied to the Tribunal.
·A document entitled ‘Gift Deed of Plot’, unsigned, which appeared to sell a commercial plot at Chaklala Road, Glass Factory Chowk, Rawalpindi City from Chaudhry Khair Din to the applicant’s father on 15 February 1979. A duplicate copy was supplied to the Tribunal.
·A Sale Deed of House No. K-531 from Chaudhry Khair Din to the applicant, the applicant’s brothers and the applicant’s mother on 27 October 1983. A duplicate copy was supplied to the Tribunal.
·A Gift Deed of Plot which appeared to sell a commercial plot situated at Chaklala Road, Glass Factory Chowk, Rawalpindi City from Chaudhry Khair Din to the applicant’s father on 15 February 1979.
·A document entitled ‘Sale Deed House No. K-531’, unsigned, which appeared to sell a property of House No. K-531 and No. K625 to K-628 from Chaudhry Khair Din to the applicant, the applicant’s brothers and the applicant’s mother.
·A number of court documents declaring that Mr Muhammad Nazir Chaudhary, the applicant’s father, has died and the heirs to whom are listed as Mr Chaudhary’s wife, Mr Abrar Ahmad Ch., the applicant, Mr Abdullah Ch. and Miss Sidra Nazir.
·
A CoE for a Diploma of Business at Ivy Business College from 6 February 2012 to

1 February 2013.
·A CoE for a Certificate IV in Frontline Management at Loura College of Hairdressing from 18 November 2013 to 19 October 2014.
·A CoE for a Diploma of Project Management at Grand Academy from 17 November 2014 to 15 November 2015.
·A CoE for a Certificate IV in Human Resources at Grand Academy from 16 November 2015 to 13 November 2016.
·A CoE for a Diploma of Human Resources Management at Grand Academy from 7 November 2016 to 5 November 2017.
·A CoE for a Bachelor of Business (Accounting) at Polytechnic Institute Australia from 27 March 2017 to 27 March 2020.
·A CoE for a Certificate III in Light Vehicle Mechanical Technology at Adelaide College of Technical Education from 4 February 2019 to 2 February 2020.
·A CoE for a Certificate IV in Automotive Mechanical Diagnosis at Adelaide College of Technical Education from 10 February 2020 to 23 August 2020.
·A CoE for a Diploma of Automotive Technology at Adelaide College of Technical Education from 24 August 2020 to 18 April 2021.
·A CoE for a Certificate III in Light Vehicle Mechanical Technology at Australian Health and Management Institute from 24 August 2020 to 30 January 2022.
·A CoE for a Certificate IV in Automotive Mechanical Diagnosis at Australian Health and Management Institute from 31 January 2022 to 15 July 2022.
·A CoE for a Diploma of Automotive Technology at Australian Health and Management Institute from 18 July 2022 to 16 July 2023.
·Prescriptions for medication including some photos of different tablets.
·A number flight tickets from Sydney to Islamabad in the applicant’s name.
·A number of photos showing a car workshop.
·A screenshot of a Google search showing an entry for ‘Zeeshan And Shera Auto Electrician Works – Pakistan …’.
The Tribunal discussed with the applicant in hearing the fact that PRISMS records indicate that he obtained deferrals both on 24 May 2017 and 24 April 2018 in the Bachelor of Business (Accounting). The applicant indicated that the deferral in 2017 was on the basis of his hypertension with his GP providing relevant reports to the education provider. The deferral in 2018 was based on the death of the applicant’s father in India, and his need to return to India after his death.
The applicant indicated to the Tribunal that on both occasions he received confirmation from the education provider that the deferrals had been granted.
As indicated, the applicant has indicated that he wrote to his education provider in relation to the Certificate III in Light Vehicle Mechanical Technology (the enrolment which is the subject of cancellation) requesting a deferral because he is on medications due to high blood pressure. The Tribunal noted to the applicant that the email does not provide any medical evidence of this for the benefit of the education provider. The applicant indicated that he may have forgotten to provide this.
The applicant indicated in the hearing that his education provider never responded and that the applicant just assumed that the deferral had been granted, and also did not advise of the cancellation of enrolment. The applicant’s migration agent made oral submissions of a breach of the education provider of relevant obligations.
The Tribunal put to the applicant in the hearing that the applicant should have followed up with his education provider as to the result of his request for a deferral, not having simply assumed that it had been granted. This is particularly the case given that the applicant had made two previous applications for deferral which he gave evidence he had received notification of.
In response, the applicant indicated that he did not follow up with his education provider because of the issues going on in his life, the death of his father, and his depression. The applicant’s migration agent made oral submissions reinforcing the depression suffered by the applicant at this point in time.
The Tribunal noted to the applicant that his father had died almost a year previously. The applicant maintained having difficulties in February 2019.
The Tribunal also noted to the applicant that it had requested from the applicant evidence from his medical providers as to the nature and history of his health conditions and the effect that this has had on his studies. The evidence provided from the applicant’s cardiologist indicates that the last consultation was in early 2018 and that on the applicant’s own claims, difficulties as a result of hypertension had substantially resolved by mid-2018.
In response, the applicant indicated that his cardiologist must have misreported the applicant, and that his hypertension issues continued beyond this. The applicant’s migration agent made submissions of evidence being provided of very high blood pressure of the applicant.
The Tribunal has difficulty accepting significant hypertension issues were suffered by the applicant after mid-2018 based on the report of the cardiologist.
The Tribunal put to the applicant that no other recent medical evidence has been provided establishing hypertension symptoms beyond mid-2018. In response, the applicant indicated that he had continued to consult his GP about hypertension issues and it was her reports in relation to the medical conditions which affected the applicant’s study in early 2019.
The Tribunal noted to the applicant that it had requested full reports from relevant medical providers, and no report had been provided with greater detail of the applicant’s conditions and its effect on his studies from his general practitioner. In response, the applicant indicated that his general practitioner declined to provide a report and indicated that this should come from the specialist.
Concerns are created for the Tribunal by the failure of the GP to provide corroborative more detailed evidence as to claimed medical conditions suffered by the applicant from early 2019 when his enrolment was cancelled. This, combined with the recent report of the cardiologist indicating that symptoms had significantly dissipated from mid-2018 results in the Tribunal not accepting that there were significant medical conditions suffered by the applicant in early 2019. The Tribunal struggles to accept the applicant would forget to provide supporting medical evidence to his education provider in February 2019 as he claims. No medical information has been provided from this period indicating that the applicant is suffering from hypertension and cannot study.
It is further significantly adverse to the applicant that he did not follow up with his education provider the outcome of the request for the deferral, particularly when the applicant had had two prior requests for a deferral of his study which had been granted. The Tribunal has difficulties accepting that depression would be the cause of such a significant oversight, particularly when no medical evidence has been provided of the applicant suffering from depression.
Concerns are created for the Tribunal that the applicant had a genuine intention to either continue with his studies at this point in time or meet visa obligations to be enrolled in a registered course.
While the Tribunal would make significant allowances for medical conditions, whether hypertension or depression, affecting study, this would only be on the basis of a deferral being sought and granted, ensuring compliance with the visa condition to be enrolled in a registered course. It is not logical or reasonable in the circumstances that the applicant would not have checked to ensure that the deferral was granted. His failure to do so points to other reasons for his failure to study.
In the circumstances, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for his failure to be enrolled in a registered course between 18 February until the visa was cancelled approximately five months later.
The Tribunal accepts hardship to the applicant if he is not able to continue to stay in Australia including to fulfil what he has recently claimed as his desire to continue to study courses in Australia associated with automobiles. The applicant has given evidence that there are family business opportunities in India associated with automobiles that will be thwarted if the applicant is not able to continue to study in Australia, which the Tribunal is prepared to accept including that there would be a hardship to the applicant as a result of not acquiring automotive skills in Australia.
The Tribunal accepts hardship to the applicant if he returns to Pakistan not having achieved the education outcomes that he and his family originally envisaged.
The Tribunal accepts some degree of hardship to the applicant in terms of his health condition in relation to what the Tribunal accepts would be superior treatment in Australia. However, there is no indication his current condition is a serious or life-threatening health issue.
The applicant indicated that a hardship if he returns is that he may have to reveal his health condition to his mother who will worry as a result. As put to the applicant, there would seem no obligation for the applicant to reveal his now relatively minor health condition to his mother. Even if the applicant were to reveal his condition, the Tribunal is not satisfied that this is an overly severe hardship that would be faced by the applicant.
The Tribunal accepts that the visa remains cancelled that this would deny the applicant the ability to apply for many other visas onshore and that this would entail potential hardship.
Whilst the Tribunal accepts that if the applicant’s visa remains cancelled he could be an unlawful noncitizen and subject to immigration detention, the Tribunal considers that the applicant would remain eligible to hold a bridging visa while he makes arrangements to leave the country.
There is no evidence there is anyone attached to the applicant’s visa who would be impacted by its cancellation. There is no evidence that the interests of any children in Australia would be affected by the cancellation.
The Tribunal notes that the applicant has stated that he intends ultimately to return to Pakistan, which suggests that he does not fear persecution or significant harm on return there. The applicant confirmed in the hearing that he does not fear persecution or significant harm on return to India.
Weighed in the applicant’s favour is the fact that undertook a course of study in Australia from 2011 until 2016 and successfully passed a number of courses. The applicant’s performance to the extent that he undertook a Bachelor of Business (Accounting) is patchy but this is at least partly, the Tribunal is prepared to accept, explained by health issues and the death of the applicant’s father.
However, as indicated the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for his reasons in ceasing to be enrolled in the Certificate III in Light Vehicle Mechanical Technology in February 2019 and having no other enrolment for approximately next five months until the visa was cancelled. The Tribunal is not satisfied that the applicant has been candid as to his reasons for non-enrolment in study during this period.
Including in the absence of a more detailed report from his GP contradicting claims by the applicant’s cardiologist that hypertension issues had substantially resolved by mid-2018, the Tribunal is not satisfied as to significant ongoing health issues having been suffered by the applicant after this point affecting his studies or otherwise. The Tribunal does accept that there are very brief medical reports provided by the applicant’s GP referring to medical issues affecting study, after this point, but more detail in relation to these statements have not been provided despite the request to the applicant by the Tribunal. In the absence of further more detailed medical information, the Tribunal is not satisfied as to significantly adverse medical conditions suffered by the applicant after mid-2018.
In any event, as indicated, if the applicant had been suffering from significant medical conditions then he should have obtained and made sure of obtaining a deferral from his studies on those grounds, which he has not done from February 2019.
The Tribunal balances discretionary factors. Adverse to the applicant is the fact that the Tribunal does not accept that there are extenuating circumstances beyond his control that explain the failure of enrolment from 18 February 2019 until 29 July 2019. The Tribunal does not consider that the applicant has been candid in his explanations as to lack of enrolment and study in the first half of 2019. The Tribunal accepts prior successful study by the applicant in Australia. The Tribunal accepts there will be hardship to the applicant if he is not able to undertake what he now indicates is his study intention in Australia in the automotive area. The Tribunal accepts a degree of hardship to the applicant if the visa remains cancelled for the reasons indicated, including not being able to access superior health services in Australia, although this hardship is limited because the applicant is not currently suffering major medical issues. The Tribunal accepts prior successful study by the applicant in Australia. However, factors favourable to the applicant including the hardship that he will face do not outweigh matters adverse to the applicant.
The Tribunal determines to exercise its discretion to cancel the visa.
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 McCulloch
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.

[2022] AATA 1227

11 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction