Ahmad (Migration)

[2019] AATA 6625

Ahmad (Migration) [2019] AATA 6625 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waseem Ahmad

CASE NUMBER:  1921106

DIBP REFERENCE(S):  BCC2019/1473488

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 November 2019 at 12:34 pm (VIC time)

DATE OF WRITTEN RECORD:                17 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 December 2019 at 10:51am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – reasons giving rise to non-compliance – high blood pressure – death of family member – capacity to study – capacity to work – responsibility to comply with visa conditions – failure to take reasonable steps – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 July 2019 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 20 November 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is a citizen of Pakistan and is 39 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs on 28 July 2019, cancelling his subclass 500 student visa, pursuant to section 116 of the Migration Act.

4. The applicant’s student visa was granted on 7 August 2017 with an original expiry date of 27 May 2020, providing for two years and 10 months, during which the applicant would be permitted to reside in Australia for the purposes of the full-time study.  Specifically, the visa had been granted so that the applicant could complete a Bachelor of Accounting degree at the Polytechnic Institute of Australia, which is a course provider based in Sydney. 

5. The tribunal notes that the applicant had already been residing in Australia since 2011 as a student, having previously been granted four other student visas for him to study courses on a full-time basis in Australia, so this particular visa, which is now the subject of cancelation and a review of that cancelation decision, is his fifth temporary student visa.

6. The delegate cancelled the applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study for the duration of the visa grant period.  The issue in the present case is whether the ground for cancelation is made out, and if so, whether the visa should be cancelled.

7. The tribunal convened a hearing to consider the merits of this application for review on 20 November 2019.  The applicant participated in the hearing by way of video link.

8. The applicant’s visa was subject to a number of conditions as prescribed by schedule 8 of the Migration Regulations when the visa was granted. In the present case the issue is whether the applicant breached condition 8202. If the applicant breached that condition the visa may be cancelled pursuant to section 116 of the Act.

9. Condition 8202(2)(a) of the applicant’s visa required that he remain enrolled in a full-time registered course of study.  In the delegate’s decision record the delegate identified the period from 18 February 2019 to 29 July 2019 as the period in which the applicant was not enrolled in a registered course of study.  This amounted to more than five months during which the applicant was alleged to be in continuous breach of the visa.

10. The Department of Home Affairs wrote to the applicant by letter dated 18 June 2019 notifying him of its intention to consider cancelling his visa.  That letter set out particulars of the alleged breach by the applicant of condition 8202.  He was invited to comment on these allegations before the Department moved to cancel his visa.  He did respond to that letter, so he did comment on the allegations, and he did not dispute that he was not enrolled for that alleged period.

11. Consistently with that, at the hearing before the tribunal on 20 November 2019, the applicant admitted in oral evidence that he was in breach of his visa for the period alleged.  Accordingly, it seems reasonably clear that the delegate was correct in reaching the conclusion that he had been in breach of his visa for the period of time identified by the delegate, so the tribunal finds that he was in breach of condition 8202.

12. Having found 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, however the tribunal is mindful that it should consider the circumstances of the case, including any matters raised by the applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual, PAM3, known as the general visa cancelation powers.

13. The matters that ought to be considered are specifically listed in PAM3 as follows: 

    (1) The circumstances in which the ground for cancelation arose, including consideration of whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds for cancelation.  As a general rule, a visa should not be cancelled where such circumstances were beyond the control of the visa holder.

    (2) The purpose of the applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia.

    (3) The extent of the applicant’s compliance with visa conditions, including an assessment as to the extent to which the applicant has otherwise complied with visa conditions, both now and on previous occasions.

    (4) The degree of hardship that may be caused to the applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional, or any other hardship as a result of the cancelation decision.

    (5) The applicant’s past and present behaviour towards the Department, for example whether they have been truthful and cooperative in their dealings with the Department.

    (6) Whether there are persons in Australia whose visas would or may be cancelled by the operation of section 40 of the Act.

    (7) Whether there are mandatory legal consequences arising from a decision to cancel the visa.

    (8) Whether Australia has obligations under any relevant international agreements that would be breached as a result.

14. I turn now to consider the circumstances giving rise to the breach of condition 8202 of the applicant in this particular case.  The applicant, as noted, filed a response to the Department’s notice of intention to cancel his visa, and the applicant has also provided documentation prior to the hearing today where he sought to explain the circumstances giving rise to his breach of the condition of his visa, and in oral evidence he also sought to explain the circumstances which he say gave rise to his visa breach, which he characterised at the outset of his hearing as necessitating compassionate consideration or compelling reasons why he should not have his visa cancelled.

15. The tribunal notes that the oral evidence given at the hearing, as well as the documentation that the applicant has filed with the tribunal and also that which he provided to the Department is largely consistent, and any inconsistencies that there might be do not appear to be of any consequence because the applicant has maintained his position as to the reasons that gave rise to his breach of the visa.

16. I will refer primarily to the evidence of the applicant given at the hearing because that operates effectively as a summation of the evidence contained in the documents that he has also provided to the Department and to the tribunal.  At the hearing before the tribunal the applicant essentially stated that the reasons for him ceasing his enrolment in a registered course of study is attributable to two particular factors, (1) a medical condition being high blood pressure, which was diagnosed in 2017, in December 2017; and (2) ongoing issues that he was having overcoming the death of his father, which occurred in early 2018.

17. For the avoidance of doubt, the tribunal finds that the applicant was formally diagnosed with high blood pressure in December 2017, because that is supported by a number of medical certificates that were provided by the applicant from his registered medical practitioner, that is his treating medical practitioner, Dr Joushan Ara.  And those medical documents indicate - - going to the earliest one dated 21 December 2017 - a document written by Dr Ara with the subject line, “Medical certificate”, states that the applicant is suffering from high blood pressure, he is on medication, but the blood pressure is uncontrolled and he is undergoing investigations in relation to that situation.  And the doctor also states that the situation for him makes it very hard for him to concentrate on his study.

18. The doctor also recommends that as a result of this, at least in terms of December 2017, he should reduce his study load from four subjects to two subjects at the beginning of 2018.  That is the earliest letter provided by Dr Ara.  There is a more recent one dated 20 June 2019 which reiterates that the applicant continues to be suffering from a medical illness relating to his high blood pressure, also reiterating the concern that it is difficult for the applicant to concentrate on his study with this condition.  She also repeats that he needs further investigations and treatment.

19. That said, in oral evidence the applicant said that he had most recently been placed on medication in July 2019 which appears, he says, to be assisting the symptoms relating to high blood pressure.  In relation to those symptoms the applicant characterised those symptoms as including burning sensations in his ears and water flowing in his eyes.  There are likely to be other symptoms as well, but the tribunal ultimately accepts the applicant’s characterisation of those symptoms in light of the supporting medical documentation that he has provided.  So that was factor number 1 relating to the applicant’s case as to why he had breached his visa.

20. The other factor, of course, which I referred to, related to the death of his father in March 2018.  He referred to that in oral evidence today, he said that has had an effect on him, and it has contributed, in his own words, to his state of depression and has made it difficult for him to study.  The tribunal accepts that his father died and that would have had an emotional impact on him and a psychological impact. 

21. While the tribunal accepts the evidence so far summarised in relation to both his medical condition and also the death of his father, the tribunal does not accept these to be satisfactory reasons which explain his continuous breach of his visa for a period of five months.  It actually appears that he has not effectively been studying for the entire duration of this most previous recent visa that has been granted to him.  In the course of the hearing the tribunal inquired as to what progress he had actually made in relation to the Bachelor of Accounting degree for which the visa had originally been granted in August 2017.  The applicant stated in evidence that the bachelor’s course actually started earlier, in April 2017, so he was using what would appear to be the tail end of his previous visa grant period to actually start that course.

22. The applicant eventually admitted in evidence that for the entire first year of studies, from April 2017 to April 2018, he failed 50 per cent of his units.  It would appear that that all occurred in 2017, and he passed the other 50 per cent.  The tribunal then inquired as to what study he did in 2018.  He said none.  The tribunal was perplexed as to why he would cease his studies altogether.  The applicant was not able to provide any satisfactory response, other than what would appear to be a reference to those two factors, that is the death of the applicant’s father which would certainly have impacted on him, given the death occurred in March 2018, and also the high blood pressure issue.

23. The tribunal has made some allowance for significant disruption being caused to his studies for the first half of 2018, certainly that would be a fair reason for him to cease his studies for a period to come to grips with the death of a loved one. But the practical reality is in Australia many international students are forced to contend with difficult situations like that while they are studying in a foreign country and away from their loved ones.  Such students have to deal with death, illness, and other family situations which have a significant emotional and psychological impact with them.

24. However, they must still prioritise what their visa requires them to prioritise, and that is to comply with the conditions of their visa.  Many international students are able to maintain compliance with their visa conditions in such situations and if they are unable to maintain their studies then it is incumbent upon them to bring their issues to the attention of either the course provider or to the Department, and a significant amount of discretion is typically given to such students facing such difficulties, and to deal with difficulties temporarily.  And in those circumstances course providers in particular have a power to defer studies and allow visa holders such as the applicant to put off their studies for a temporary period and then resume them at a later time.

25. The applicant never made such application; at least there is no evidence of such an application before the tribunal.  The applicant, in the course of giving oral evidence, made some reference to a request being made by him to the course provider to enrol him in another intake, but on his own evidence he never received a response to that request.  He never sought enrolment in another course provider.  That of course is referring to the 2019 situation where his enrolment was actually formally cancelled.

26. What I am referring to at the moment though is the entire year of 2018.  The applicant did not study.  He did not make any satisfactory progress.  He did not seek a deferment, it would seem, for his studies.  Yet he maintains that he was depressed because of his father’s illness, even making allowance for that, he needed to resume, as soon as he could, his studies. 

27. I have also considered whether his medical condition operates as a reason for him ceasing his studies.  The medical evidence that he has provided does not go so far as to say that he is incapable of studying, it only goes so far as to say it is difficult for him to study.  He was not incapacitated from studying, and that would seem to be confirmed by the applicant’s own evidence that he was able to work 20 hours a week for the entire year of 2018.  The tribunal put that particular proposition to him, if he was able to work why could he not study?  The applicant stated that study requires more concentration than work.  To a certain extent the tribunal has given that some weight, but ultimately it is not a reason to completely disengage from studying altogether, particularly because that is the primary reason that he has been permitted to remain in Australia.

28. 2018 does not represent the breach period, it is the following year when the breach starts to accrue, and he has continued not to study and has completely disengaged by not maintaining enrolment at all.  The tribunal does not accept that the reasons for high blood pressure and the death of his father are causative in relation to his non-enrolment or ceasing his enrolment.  It appears that the situation of his enrolment was well within his control, and he made the conscious decision not to maintain enrolment.  Therefore this is a significant factor weighing in favour of cancelling his visa.

29. I move on to consider the purpose of the applicant’s stay in Australia.  The purpose of the applicant’s stay in Australia, as reflected in the essential purpose of the student visa, is to study on a full-time basis.  Regrettably that purpose has effectively been defeated as a result of the applicant’s decision making processes not to maintain enrolment, not to ensure that he maintains enrolment.  It is evident from the evidence that he has not made any satisfactory progress or barely any satisfactory progress in relation to the visa period which this particular visa represents, and there is no prospect of him obtaining a Bachelor of Accounting degree.

30. By his own statement and evidence if his visa is not to be cancelled it would appear that he is going to abandon the bachelor’s degree and start on something else.  He has been here for eight years.  The tribunal rejects his contention that he did not know what to do when the course provider, which he says did not actually enrol him again when he requested to be enrolled.  He has been here for eight years already on four previous student visas.  He is well versed, in the tribunal’s view, with the international student visa system.  He is well aware of his obligations to maintain enrolment as an essential condition of his visa.

31. The tribunal has given consideration to the extent of his compliance with visa conditions of other visas.  There does not appear to be anything adverse to his interests in that regard.  The tribunal has given consideration to hardship that may follow if his visa is cancelled.  He stated that it will affect his future; certainly it will affect his family’s expectations if he was to return to Pakistan without a further qualification.  That said, the tribunal notes that in the eight years that he has been here he has already achieved a number of vocational level qualifications in the business and project management arena.  If his visa is not cancelled he says that he would want to undertake Certificates III, IV and Diploma in the automotive industry so that he can return to India and open his own business. 

32. The tribunal considers that he already has enough vocational level qualifications such that he is not going to be put out completely if he is forced to return to India.  The tribunal has given consideration to the applicant’s past and present behaviour towards the Department of Home Affairs.  He was responsive to the Department’s notice of intention to cancel his visa and he has, at all material times, been cooperative in assisting the Department towards the resolution of this matter, so that operates in his favour.  There do not appear to be any other visa holders that might have their visas under section 40 of the Act as a consequence.

33. The tribunal notes that if his visa is cancelled the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia.  A bar, under section 48 of the Act, will be imposed, limiting his options to apply for further visas from within Australia.  He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires public interest criterion 4013 to be met.  However, the tribunal is of the view that these are the intended consequences of a breach of this nature.  The tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

34. Having considered all of the above factors, the tribunal is of the view that the applicant’s visa ought to be cancelled.  .

    DECISION

35. The tribunal affirms the decision to cancel the applicant’s visa.

    DrJason Harkess
    Member