ALI (Migration)

[2019] AATA 6636

ALI (Migration) [2019] AATA 6636 (30 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hafiz Abdul Rehman Ali

CASE NUMBER:  1726580

DIBP REFERENCE(S):  BCC2017/2905884

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         30 September 2019 at 2:58 pm (VIC time)

DATE OF WRITTEN RECORD:                5 December 2019

PLACE OF DECISION:  Melbourne

Statement made on 05 December 2019 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – exemplary student – circumstances giving rise to non-compliance – considerable medical conditions – beyond the applicant’s control – decision under review set aside

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 20 October 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 30 September 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. This is an oral decision in case number 1726580. The applicant’s name is Mr Ali. This is an application for review of a decision dated 20 October 2017 made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 573 Hire Education Sector visa under section 116(1)(b) of the Migration Act.

4. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study.  The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the tribunal on 30 September 2019 to give evidence and to present arguments.  The applicant was represented in relation to the review by his registered migration agent.  The hearing was conducted with the assistance of an interpreter in the English and Urdu languages.

6. For the following reasons the tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. 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. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

7. The first question for determination is whether the applicant complied with condition 8202.  Condition 8202 as it applies in this case requires that the applicant be enrolled in a registered course or in limited cases a fulltime course of study or training.  In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

8. An examination of the delegate’s decision record notes that the information before the department indicated that the applicant did not maintain enrolment in a registered course of study from 22 February 2017 onwards.  The notice of intention to consider cancellation was issued to the applicant on 25 September 2017.  In the applicant’s response to the notice of intention to consider cancellation dated 3 October 2017 and written by his registered migration agent the applicant gave detailed reasons for the circumstances that led to the ground for cancellation.

9. In short the applicant contended that due to suffering from various medical issues he was not enrolled in a registered course at the time.  On the evidence before the tribunal the tribunal is satisfied that the applicant was not enrolled in a registered course from 22 February 2017 onwards and accordingly the tribunal finds that the applicant has not complied with condition 8202.  Having found that the applicant has not complied with the condition of the visa the tribunal must now 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.

10. The tribunal has had regard to the circumstances of this case, including matters raised by the applicant, matters in the Departments’ Procedures Advice Manual general visa cancellation powers.

11. The applicant was granted a class Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 25 May 2015 for the purpose of undertaking an approved higher education level course of study at Group Colleges Australia in a Bachelor of Business Management.  Prior to undertaking that course the evidence at the hearing demonstrated that the applicant successfully undertook and completed an ELICOS course commencing in August 2015 in English studies.

12. In the response to the notice of intention to consider cancellation the evidence on behalf of the applicant was that the applicant came to Australia with the intention of obtaining an internationally accredited qualification.  By all accounts he has been an exemplary student having successfully completed the subjects he has undertaken to date.  Therefore, there is no evidence before the tribunal to suggest that the applicant’s original intention for travel and stay in Australia was for a purpose other than to study.

13. On the basis of that evidence as set out I therefore find that the applicant has no compelling need to remain in Australia permanently and he has demonstrated that his primary purpose for being in Australia is for the purposes of study.  I give these factors some weight towards the visa not being cancelled.

14. The applicant has conceded that he has not complied with condition 8202 of his visa.  He has acknowledged that in his response to the notice of intention to consider cancellation.  However he has provided detailed medical documents that speak to the reason for his cancellation of enrolment at the time in February 2017.

15. There are no other breaches or evidence of breaches of visa conditions before the tribunal.  And whilst I find that the applicant did breach the visa condition, given the circumstances of the breach, which I shall set out below, I give this no weight towards the visa being cancelled.

16. As to a degree of hardship that might be caused if the visa remains cancelled the tribunal has had regard to the response to the notice of intention to consider cancellation in which the applicant speaks to hardship in relation to finances that will be lost in relation to course fees that he has already paid for.  The applicant also speaks to psychological hardship that he would endure as a result of having to return to his home country in circumstances where he will not have completed a degree due to the medical challenges he faced at the time that caused him to lose his enrolment in February 2017.

17. The tribunal accepts that the cancellation has led to some personal detriment for the applicant and in view of the fact that the cancellation arose in relation to medical issues suffered by the applicant at the time the tribunal therefore gives this some weight towards the visa not being cancelled.

18. The tribunal now turns to circumstances in which the grounds for cancellation arose.  It is clear based on a review of three medical documents that the circumstances that led to the cancellation of the applicant’s enrolment were clearly not matters reasonably within his control.  The tribunal has had regard to medical documents from a Dr Osman Khadri dated 5 November 2015.  The second document is dated 22 September 2016.  The third medical certificate document is dated 10 November 2016 and the fourth medical certificate document is dated 28 September 2017.

19. The second and the third medical certificates clearly provide that the applicant was suffering from severe lumbar spine strain in the period September 2016 and November 2016 to 20 February 2017 inclusive.  Those documents clearly provide a medical opinions from qualified medical practitioners that the applicant will be unfit to continue his usual occupation or studies during that period.

20. The applicant gave evidence that he provided these documents to the receptionist at the college at which he was studying in support of his application to defer his studies and he did not hear back in relation to the education provider’s attitude to the matter until such time as he received a notice of intention to consider cancellation in late September 2017.

21. The tribunal has also had further regard to the fourth medical certificate dated 28 September 2017 in which the treating physician clearly sets out that the applicant was suffering from lumbar spine pathology, which limited his mobility.  And the document further sets out that the applicant ought to be given special consideration on medical and compassionate grounds.  The doctor further states that due to these issues he could not attend his college since February 2017 onwards.  The document also sets out that the applicant has been attending counselling sessions with the physician and he has been prescribed antidepressants.

22. The tribunal has had regard to what appears to be a script for antidepressant medication, which is dated 22 September 2016, and on the face of that document quite clearly demonstrates that in addition to the lumbar spine concern that the applicant was enduring at the relevant time, it is clear that at the end of 2016 the applicant was also suffering from various mental health issues, which required the prescription that I have just described.

23. Given the circumstances I have just set out and on the basis of this evidence, the tribunal finds that the circumstances surrounding the cancellation were not reasonably within the control of the applicant and the tribunal therefore gives this significant weight towards the visa not being cancelled.

24. As to the applicant’s past and present behaviour towards the Department the tribunal notes that the applicant promptly on 3 October 2017 took steps to respond in tremendous detail to the notice of intention to consider cancellation.  The tribunal also notes that the medical documents to which I’ve just referred were provided to the delegate together with that response dated 3 October 2017.  The tribunal gives this good conduct some weight in favour of the visa not being cancelled.

25. The applicant gave evidence that there are no persons in Australia whose visas would be consequentially cancelled under section140 of the Act as a result of his visa cancellation.  The tribunal therefore gives this factor no weight in favour of the visa not being cancelled.

26. As to whether there are any mandatory legal consequences that would flow as a result of the cancellation the tribunal finds that if the visa were to be cancelled the applicant would be excluded from making applications for certain parts of visas.  And most importantly to the applicant, he would not be able to complete the studies upon which he originally embarked.

27. Given the circumstances set out above, that is, given the circumstances that led to the cancellation of the enrolment, this would be manifestly unfair and I give this factor some weight in favour of the visa not being cancelled.

28. As to whether there are any international obligations, including non refoulement and best interests of the children as a primary consideration, which would be breached as a result of this cancellation, the tribunal finds this is not a relevant consideration to this particular application.

29. As to whether there are any other relevant matters the tribunal notes that documents were submitted approximately an hour before the hearing today, which are namely a statement of purpose, various academic documents which speak to the academic progress of the applicant, the current confirmation of enrolment in a Bachelor of Business degree, and various submissions, which are directed to the Direction 69 factors applicable to student visa refusal cases.

30. These documents are provided to the tribunal in support of the submission that the applicant is a genuine student in all the circumstances.  The tribunal has had regard to those documents and I give the matters set out in those documents a little weight in favour of the visa not being cancelled.

31. It is clear that the breach on the part of the applicant does not reveal any bad faith and was occasioned by matters, particularly the medical matters to which I have already set out, which were not reasonably within his control.  These matters are matters for which he has produced contemporaneous medical documents, which clearly show at the time in question he was suffering from considerable medical conditions.

32. It is also clear that the considerations I have arrived at on examining all the evidence before me lead toward the visa not being cancelled and I so find.  Given the circumstances as a whole the tribunal concludes that the visa should not be cancelled. 

33. The tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 573 Higher Education Sector visa.

    DECISION

    Vanessa Plain
    Member