Ahmed (Migration)

[2024] AATA 3380

Ahmed (Migration) [2024] AATA 3380 (9 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zabir Ahmed

REPRESENTATIVE:  Mr Pathmanathan Rama

CASE NUMBER:  2305298

HOME AFFAIRS REFERENCE(S):          BCC2022/4044659

MEMBER:Penelope Hunter

DATE:9 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 September 2024 at 9:25am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – applicant convicted of an offense – support from employer – multiple health issues – breakdown of a relationship – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 April 2023 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).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal via MS Teams video on 23 July 2024 to give evidence and present arguments.

4. The applicant was initially represented in relation to the review. His representative did not attend the hearing, and on 23 July 2024 advised the Tribunal that the applicant had informed them that he did not require their representation.

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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Background

7. The applicant is a 26 year old single male citizen of Bangladesh. He was granted a visa on 9 August 2021 valid to 15 March 2024 to undertake study in Australia. This visa was subject to conditions, including condition 8202.

8. On 17 February 2023, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, because the Provider Registration and International Student Management System (PRISMS) records of the applicant indicated that his last enrolment in a registered course was cancelled on 20 December 2021. As he had not been enrolled in a course of study for a period of just over one year, the applicant was informed that this may be a ground for cancellation of his visa. The applicant was invited to comment on this and another relevant matter. Namely, that the Department was advised on 27 January 2023, that the applicant was convicted of the following offence:

Offence	Result
4 x Contravene Prohibition/Restriction in AVO (Domestic)	3 months imprisonment – commenced 26 October 2022 and ended 25 January 2023

1. In response, the applicant provided to the Department submissions from his representative and several documents including;

   ·A statutory declaration of the applicant dated 2 March 2023.

   ·A statutory declaration of Raju Ahmed dated 2 March 2023.

   ·A report from psychologist Jeffrey Lai dated 2 October 2018.

   ·A memorandum of psychologist David Taplin.

   ·A copy of the applicant’s academic record, Diploma of Business (Extended) from the University of Technology Sydney dated 16 May 2019.

   ·A Confirmation of Enrolment (CoE) in a Certificate III in Painting and Decorating between 29 April 2019 and 26 April 2020.

   ·A Certificate of Completion of the Certificate III in Painting and Decorating issued 2 June 2020.

   ·A certificate of completion of Diploma of Building and Construction issued 10 February 2022.

   ·A letter of offer for enrolment in a Diploma of Building and Construction and Graduate Diploma of Management dated 15 April 2019.

   ·A Notice of Appeal to the District Court, Order date 27 January 2023 and an Appeal Listing Notice for 27 January 2023.

   ·Australia citizenship certificates for Md Raju Ahmed and Shitul Muna Jarin.

   ·Extract of the Australia passport of Izaan Ahmed and Ibsan Ahmed.

   ·Several photographs of the applicant and family.

   ·A letter from Nick Stamiris of Cometro Painting dated 5 December 2022.

   ·A CoE in an Advanced Diploma of Business commencing on 11 April 2023.

2. In summary, the submissions and supporting material set out the following information:

   i.The applicant did not dispute that he was not enrolled in a registered course for an extended period of time. He claimed that his non-enrolment was due to circumstances beyond his control.

   ii.While holding his previous student visa, the applicant had in past experienced anxiety and depression which led to him seeking professional help and counselling in 2018 and 2019.

   iii.While holding the visa under review the applicant continued to be homesick and without support from his parents. He also entered into a relationship with his ex-partner, Renai and had moved out of his family home to be with her. He did not know about Renai’s past life or background. He found out Renai was a drug user and had a child of a previous relationship. He took drugs with Renai. His life fell apart and he lost his family trust and dignity in his social circle.

   iv.The applicant started arguing frequently with Renai about financial issues and he was asked to move out. After leaving the property he tried to avoid Renai however she attempted to extort money from him and threatened to lodge a complaint to the police. At this time he was issued with an Apprehended Violence Order (AVO) and subsequently charged with contravening the AVO.

   v.The code 19 pandemic lockdowns affected the applicant and he got involved with the wrong person which led to his convictions.

   vi.As a result of the criminal charges against him he sought professional help and counselling. He has appealed his convictions which were listed for 9 March 2023 and was he hopeful that the convictions would be dismissed.

   vii.The applicant had a genuine intention to complete his studies and returned to Bangladesh and serve the people of Bangladesh. He had obtained a new enrolment and promised to complete his studies on time.

   viii.He returned to live with his sister and brother-in-law and family, and they provide him with financial and emotional support. His sister and brother-in-law, and their children are Australian citizens. His niece and nephew have formed a close emotional bond with the applicant.

3. The delegate considered the documents and submission of the applicant, and found that as the applicant had not been enrolled in a registered course from 10 December 2021 for a period of over a year, and consequently the applicant was found to have not complied with condition 8202(2)(a) and the ground for cancellation under s 116(1)(b) of the Act was made out. The delegate was also not satisfied on the information and submissions presented by the applicant that the visa should not be cancelled.

4. The Tribunal received an application for review from the applicant on 15 April 2023, together with a copy of the decision record of the delegate. The applicant also submitted a copy of his CoE in the Advanced Diploma of Business, commencing on 11 April 2023, a copy of his representative’s submissions to the Department, and material in support of an application for reduction of filing fees to the Tribunal.

5. On 27 July 2024, the applicant submitted to the Tribunal a copy of a personal reference dated 20 July 2024, from Enrique Rios of NY Painting and Maintenance.

   Did the applicant comply with Condition 8202?

6. 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).

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

8. In his submissions to the Department, the applicant did not dispute that had stopped studying and was not enrolled from 20 December 2021.

9. The applicant was asked at the hearing whether he was aware that it was a condition of his visa that he maintain enrolment in a registered course and he confirmed that he was.

10. The Tribunal asked the applicant if he disputed that he was not enrolled in any registered course between 20 December 2021, as found by the delegate, until 8 March 2023 when he enrolled in the Advanced Diploma of Business. The applicant confirmed that this was true.

11. Consequently, on the material before it, the Tribunal is satisfied that as applicant was not enrolled in a registered course between the period 20 December 2021 and 8 March 2023.

12. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

13. 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’.

    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

14. The purpose of the applicant’s travel and stay in Australia was for him to temporarily stay to  undertake study between the period 9 August 2021 and 15 March 2024 in his selected courses or courses at an equivalent level. The applicant’s selected courses were the Diploma of Building and Construction and the Graduate Diploma of Management (Learning). He claims in his statutory declaration to have completed the Diploma of Building & Construction on 24 October 2021 and he has not disputed that he did not commence the Graduate Diploma of Management.

15. When the matter was before the delegate the applicant provided evidence that he had obtained enrolment in an Advanced Diploma of Business, commencing on 11 April 2023. He set out in his statutory declaration that he had a genuine and real intention continue and complete his studies and return to Bangladesh and serve his people.

16. The applicant told the Tribunal that honestly he had obtained the enrolment on the advice of the lawyer and his family, but he had no interest in the course. He said that he did not continue with the course because it was difficult to pay the course fees and work, and he was going through a lot of stuff as his time in prison had totally changed his mindset. When he got out he said he was a different person.

17. The Tribunal asked the applicant whether he had a compelling need to remain in Australia and he said that his life was in Australia. He had been in Australia for the last 7 years and he claimed that he had now grown up in Australia. In November 2023 he moved to Queensland, to get a fresh start. He had been living out of his van for a long time and he was hopeful of getting a rental property in the coming weeks. He was building his life up there and he just wanted to focus on his work. He was working with NY Painting and he was painting residential houses. He had supplied a letter of reference from his employer.

18. The Tribunal acknowledges the frankness of the applicant’s evidence that he did not intend to study and he just wanted to work as a painter and build a life in Australia. While the applicant may wish to remain in Australia and work, this is not the purpose for which the applicant’s visa was granted. The Tribunal has also considered the letter of support from the applicant’s employer, it documents that the applicant  been working with this employer since 18 March 2024, although the applicant claimed that it was a few months earlier. It acknowledges the applicant’s contribution to the business, however his employers comments do not in the assessment of the Tribunal rise to a compelling reason for him to remain in Australia.

19. The Tribunal gives this factor weight in favour of cancellation.

    The extent of compliance with visa conditions

20. As set out above, the duration of the applicant’s non-compliance with condition 8202(2)(a) was considerable from 20 December 2021 and 8 March 2023, around 14 months. The applicant was acknowledged that he was aware it was a condition of his visa that he maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern as the failure to maintain enrolment and continue study goes to the core purpose of the visa.

21. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of her visa.

22. The Tribunal gives this factor weight in favour of cancellation.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. To the Department the applicant provided evidence that he had in the past experienced mental health issues. In his statutory declaration of 2 March 2023, the applicant claimed that while holding his first student visa his mental health issues were was due in part to pressure from his family and because he could not get sufficient moral and emotional support. He also claimed that he was home sick and lacked emotional support when it came time for him to start his Graduate Diploma. He later claimed that the breakdown of his relationship and the consequent court proceedings caused further mental health issues for him and he was seeking medical help from a psychiatrist.

24. In contrast, at the hearing the applicant told the Tribunal that he did not seek and counselling or mental health treatment in 2023 after he was released from prison, or at any other time. He said that he just tried to learn from his mistake. He was just moving on with his life and his relocation to Queensland was part of his fresh start.

25. In the statutory declaration presented to the Department the applicant’s brother-in-law claimed that he, and his wife had a strong bond with the applicant. He also asserted that his children had a strong bond with the applicant and he assisted with taking the children to school. It was claimed that the children would face significant hardship their uncle’s visa was refused.

26. However, when the applicant was asked at the hearing the applicant about his relationship with his family, he said that honestly he did not have a very good relationship with his family. He said his parents were currently in Australia, visiting his sister and he had seen them all recently. The applicant said that he did not spend a lot of time with his family as they did not understand him. He told the Tribunal that he did also not want to rely on them financially in the future.

27. Although the applicant claimed in his statutory declaration to the Department that it was his intention to complete his studies and return to Bangladesh to serve his people, he told the Tribunal that he would face hardship as he had not been in Bangladesh for 7 years and he no longer knew how things worked in Bangladesh. He thought that the work he was doing in painting and decorating would be different in Bangladesh and he did not think that he could do the same job because. does not know how things work there. He claimed that he would experience financial hardship because he was just now rebuilding his life financially in Queensland and he would have to start all over again in Bangladesh.

28. While it accepted that the applicant has suffered mental health issues in the past, and that it would be stressful for the applicant to have to return to Bangladesh, and that it would cause emotional hardship, the applicant was expected to return on the cessation of his student visa in any event and build his career in Bangladesh. Although he claims his life is in Australia, he has only recently moved to Brisbane, started his job and is yet to find stable accommodation. With the qualifications he has obtained it is not demonstrated that he could not build a similar life in painting and decorating in his home country. It is not demonstrated on the evidence that the applicant has an ongoing psychological condition such that the Tribunal is satisfied that this condition would be impacted by any visa cancellation. Further, given the actual evidence of the applicant as to his estranged relationship with his family and the fact that he had relocated to another state, the Tribunal is not satisfied that the Australian citizen family members will experience hardship if the applicant’s visa is refused.

29. The Tribunal gives this factor little weight against cancellation of the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

30. The applicant claimed that the circumstances in which the grounds for cancellation arose were outside his control. In statutory declaration and submissions that were provide to the Department, the applicant attributed this to the impact of the pandemic and lockdowns and being unable to visit family members. The delegate commented that the applicant ceased studying at the end of 2021, when most lockdown events associated with the pandemic had ceased. The Tribunal again takes note of the fact that the applicant in his evidence to the Tribunal said that he was not that close to his family. He did not tell the Tribunal that this was a reason that he stopped studying. While the Tribunal accepts that the pandemic created stress and hardship for many people, the impacts would have mostly been experienced by the applicant while he was undertaking his Diploma of Building & Construction. The qualification that he successfully completed.

31. To the Tribunal the applicant said that at that time he was all by himself and he had to figure out how to live, he had moved out and had to support himself. Initially, when he arrived in Australia he was living with his sister and her family. He did not want to be a burden on his sister and her family so he moved out. The Tribunal accepts that these circumstances were a challenge for the applicant, but it is not satisfied that they were exceptional. The applicant is expected while holding the visa to have sufficient financial resources for his daily living and course fees.

32. After he moved out, he met his ex-partner Renai as she was living in a granny flat at the rear of the premises he was renting. They became involved for about 8 or 9 months and he moved in with her. He said that the relationship caused a lot of problems with his family. Renai was also taking drugs and he became involved in drugs. There were problems in the relationship and they fought over money. He also found out that she had a child to another person and she was cheating on him. In his statutory declaration, the applicant set out that he was advising Renai to stop drugs and focus on her life, and that she did not realise that his efforts were genuine and thought he was trying to control her. The applicant told the Tribunal that their relationship was a big mistake and that it had ended in big dramas and he now knows that he had made a lot of mistakes. Their tenancy was ended as he could not pay rent on time. He told the Tribunal that he moved away  Renai obtained the AVO. The applicant claimed to the Tribunal that Renai knew the system, she would come to his place and start something up, so he would breach the AVO and then she would be eligible to apply for crisis payments. He said that he never approached Renai and on each occasion she came to him and that was how she got him breaching the AVO three times. He said that he had paid his lawyer to appeal his conviction and it is his understanding that the matters have been removed from his criminal record, but he claimed that his parole condition that he does not contact Renai for two years remained. He did not have any further court appearances and he told the Tribunal that he has abided by those conditions.

1. The applicant acknowledged to the Tribunal that he made a lot of wrong decisions in the past, particularly starting his relationship with Renai and staying with her and not listening to his family. He claimed that he had suffered a lot in the past. While the Tribunal accepts that his relationship with Renai had a significant impact on the life of the applicant and some severe consequences. They were his choices and mistakes. The Tribunal is not satisfied that these were circumstances beyond his control which led to his not maintaining enrolment in a registered course for the duration of time that he did.

   The Tribunal gives this factor weight in favour of cancellation.

   The past and present behaviour of the visa holder towards the Department

2. There is no evidence that the applicant had not been cooperative in his dealings with the Department. The Tribunal gives this consideration some weight in against cancellation.

   Whether there would be consequential cancellations under s 140

3. The applicant is single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa remained cancelled.

4. There is no weight attributed to this factor.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

5. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

6. The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

7. It is accepted that the applicant wishes to remain and wishes to build his life in Australia. It is also accepted that cancellation would have further consequences and these would limit his options to immediately return to Australia or applying for a different kind of visa. These are the intended and legitimate consequences of cancellation.

8. The Tribunal gives this consideration neutral weight.

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

9. The applicant is a citizen of Bangladesh. There is no information that indicates that the visa cancellation would impact on Australia’s international obligations or that it would be in breach of Australia’s non-refoulement obligations.

10. In submissions to the Department, the applicant’s representative raised concerns about the applicant returning to Bangladesh at that time as there was an election that year (2023) which was expected to lead to violence and unrest in that country. At the same time in his statutory declaration provided to the Department the applicant claimed that he wished to return to Bangladesh at the conclusion of his studies and serve his people. He did not raise to the Tribunal any fears of harm upon returning to Bangladesh. If the applicant did have any fears about returning to Bangladesh these could be appropriately considered in a protection visa application, which he has not yet made.

11. The applicant is does not have any children whose interests would be affected by the cancellation of the visa.

12. The Tribunal gives this factor no weight.

    Any other relevant matters

13. The Tribunal notes the information about the applicant’s convictions as set out in paragraph 8 of this decision. The applicant took steps to appeal these convictions, the result of which he claims was successful but still resulted in his parole conditions continuing. If parole conditions continued it is difficult to accept that the conviction was overturned. Nevertheless, the Tribunal accepts that the relationship has ended and the applicant has not committed any further offences.

14. The Tribunal gives this factor no weight.

15. There are no other relevant matters that the applicant raised for consideration by the Tribunal.

    Conclusion

16. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. Overall there are limited aspects that in favour of not exercising the power to cancel. Although it is accepted that the applicant has cooperated with the Department, it is not satisfied that the circumstances that led to his enrolment being cancelled were outside his control nor do they account for the extended time he was in breach of the visa condition. The breach of condition 8202(2)(a) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. It is accepted that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not demonstrated that he has a compelling need do so, nor that there is a degree of hardship that would weigh in favour of the visa grant. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

17. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

    DECISION

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

    Penelope Hunter
    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.