Amin (Migration)

[2020] AATA 3905

Amin (Migration) [2020] AATA 3905 (28 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Mushfiqul Amin

CASE NUMBER:  1926597

HOME AFFAIRS REFERENCE(S):          BCC2019/2453171

MEMBER:Genevieve Cleary

DATE:28 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 28 June 2020 at 6:03pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant’s lack of planning and career goals – limited academic progress – health issues – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 September 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 (the Act).

2. The delegate cancelled the visa on the basis that the reasons for cancelling the visa outweigh the reasons for not cancelling. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 October 2019 to give evidence and present arguments.

4. Prior to the hearing, the applicant provided to the Tribunal:

   ·The Decision Record of the delegate;

   ·A document entitled “MY Statement”, also called his ‘Personal Statement’;

   ·A medical certificate from Curtin University Health Service dated 24.5.2018.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a)

   ·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(c)(ii).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.  The applicant agreed at the hearing that at the time of cancelation, he was not enrolled.

9. 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

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    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

11. The applicant came to Australia because he thought Curtin University would provide a good opportunity to get a good qualification, being a Masters in Project Management.  This would enable him to get a good job and earn more money in the future. 

12. Before he came here he was working part time and started to study a Master in Business Administration in Bangladesh, however he only completed one semester.  He worked at Oxfam, “approving visas, logistics works, a lot of typing and following orders.” He had been working there for 6 months.  He also taught English for a year, preparing people to study overseas.  He worked for someone else and was paid per hour.

13. He had completed a Bachelor of Business Administration, majoring in marketing.

14. He decided to do project management because he thought it was to do with business, but it turned out to be regarding construction and other types of projects.   His father paid for his course.  His father used to work for the military, and United nations, and still teaches part time at a university. He paid for and studied 3 semesters but the applicant passed only some of the subjects. 

15. While the Tribunal is satisfied that the applicant had a good reason to come to Australia to study, being that a Masters in business administration from a university in Australia would place him, generally, in a competitive position in the workplace in Bangladesh, the Tribunal is not satisfied that the applicant and a compelling reason to come to Australia to study. Firstly, this is because it appears from his evidence that the applicant had not conducted many inquiries about the course he had enrolled in. The applicant said that he was surprised when he arrived and started studying because he did not realise that the course in which he had enroled related to construction and other types of projects. This suggests that he was not so much interested in a particular course of study but simply coming to Australia.

16. Secondly, the applicant could not nominate the reasons for wanting to specifically study in Australia, and this became clear when the Tribunal engaged him in a discussion of what he hopes to achieve from study in Australia and where he hopes to be employed in the future when he returns to Bangladesh.

17. When he returns, he said he does not know what he wants to do.  He said he is not much of a planner – he can’t tell me what he will be doing tomorrow, let alone in a years’ time.  If he goes home without a masters he will not get a good job, and he will not be able to afford a car or good apartment.    He clarified that what he meant was any post-graduate course, because that would be an overseas degree from Australia – that is what counts, not what level it is.

18. He said that he did not simply go home when he failed the course.  His father wanted him to stay and enrol in something else. He wants him to pursue higher studies so that he can get a good job.  The applicant told the Tribunal he has a broken family – his mother died, so he feels loyalty to his father’s wishes, and he also feels an obligation to look after himself. He has 2 younger sisters, one is a half sister.  They are 11 and 23.  His father has re-married. 

19. He is still looking for a university course.  Initially at the hearing the applicant told the Tribunal that when Curtin cancelled his enrolment he went to an agency and education consultant.  They talked to him about what courses he could do, however because he has completed a bachelor course, he could only complete a masters course.  He cannot therefore go to a college, it must be a university.  He has identified that he would like to study business, particularly business administration, although he feels that any course would do at the moment. 

20. Later in the hearing, however, the applicant told the Tribunal that if he had a visa he would go to Tasmania because there are some one year Diploma courses there.  He acknowledged that that is not a masters course, but they would only take him one year, and would at least count in his home country.  He told the Tribunal that some Diploma courses are higher than Bachelor courses, or they may be called “certs” courses, which are also higher than bachelor courses, but take less time.  At this point he does not have anything from Australia, and he feels those type of courses would be a good substitute for a Masters.

21. He has not looked at a specific university, but he is looking to study at a cheaper rate.  He has not looked at courses in WA.  He thought Tasmania would be a nice place to go, and cheap.  Curtin University was very expensive.  If he can find somewhere else to study he will take that.  He reiterated that he wanted to complete a cheap, one year course. 

22. In Western Australia  he lives in a shared house.  He has no savings.  He said his father will pay for him to change states, as he has paid for everything so far. The applicant now does not work because of his visa, so cannot add to any savings.

23. In the applicant’s Personal Statement, sent to the Tribunal prior to the hearing, he had said that he wanted to study English, environment management or sociology.  I put to him that he has not mentioned studying business in his Personal Statement, or English, environment management or sociology in his evidence at the Tribunal hearing.  He told the Tribunal that he mentioned the other courses in his Personal Statement because there was components of those courses in his previous course, and he thought they would be easier for him because he has already studied them, and he is looking at different areas to study.  He reiterated that any course will do.  He knows that he does not want to study project management, and that any post graduate certificate would satisfy his requirement, whether it be in business or anything else.

24. While he found it difficult to estimate because he has not been back to his home country for 2 and a half years, the applicant said he might look for a job when he returns.   If his visa is actually cancelled, he will look for another course to study somewhere else, and that will be better for his future.

25. Further, he will get a “shit” job if he returns without the masters, and he will not be able to afford a good apartment or a car.  I pointed out to him that that proposal relied on him getting a masters, being higher than his bachelor degree, and that if, as he has told the Tribunal he would like to do now, he returns with only a Diploma or a certificate qualification, that will not be a masters.  He said that any post graduate course that he can get enrolled in will be an overseas degree in Australia, which counts.  It could be in business, sociology or any other area.

26. Later in the hearing the applicant said that when he returns he would really like to start a business, but he knows he needs an investor, or some money.  His father has refused to help because he does not believe it is a good idea.  He would prefer this to working for someone else all day.  He has thought about an institution where students come and learn English.  There are many people there who wish to study overseas.  They need English and administrative support to apply for overseas study.  The applicant said in evidence that he thinks that he would not require any actual qualifications to do this, just someone to invest money.  He knows that there are millions of people trying to go to Canada etc and they need to learn English and get visas, and they have money, so they will pay someone to assist them, and that is how he will earn money.

27. On the basis of the applicant’s apparent lack of planning in relation to the course he was studying when he came to Australia, his lack of planning and structure when it comes to what he intends to study should his visa not be cancelled and his lack of planning and goals for the future when he returns to Bangladesh, or should he be granted his Student visa, the Tribunal cannot be satisfied that the applicant had a compelling reason to come to Australia to study and nor that he has a compelling reason to remain in Australia to study. This weighs heavily against him been granted a Student visa and against the visa not been cancelled.

    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

28. The applicant told the Tribunal at the hearing that once he had started to study, the applicant fell into depression.  He thought that his depression came from:

    a.Pressure at the university;

    b.Living here alone- he only had one friend here, but they live far apart and they rarely meet;

    c.He also met a girl; he met her when they were living in the same house when he came here.  She was, then, his only friend, however they fought and she moved out.

29. He cannot pinpoint when he first noticed that he was becoming unwell.  At the time of the hearing he said that he was still feeling depressed, and is concerned about the outcome of this hearing.  Therefore, he said he could not give a precise date as to when he first realised he was falling into depression.  While the Tribunal accepts that depression can come on someone slowly, and without a person realising the illness is effecting them, that lack of clarity or time frame makes it difficult for the Tribunal to be satisfied of when and why the depression took hold and the effect the depression had on the applicant’s studies, when and for how long.

30. The applicant has made that determination more difficult by some contrary evidence in his Personal Statement he supplied to the Tribunal.  In that statement, he says that:

    a.While he had already fallen into depression while he was studying, it was the fact that the university refused to refund his third semester fees because he was late in applying for the refund that meant that he became financially insolvent and “psychologically shattered”, and

    b.One of the reasons that he started achieving bad grades at the University was due to the fact that he became mixed up with bad friends who used to take drugs.

31. The applicant told the Tribunal that he had many doctor’s appointments when he was depressed.  He was on anti-depressants – he cannot recall what they were called.  He did not feel this was a natural process.  He had about 10 sessions with Dr Palmer, but then he stopped going to him, even though sessions were still available to him. He said that he stopped going because he had failed at the university, and therefore he had not assisted him.  the doctor told the applicant the same things each time he went, and the applicant was not happy with the medication, or being on any medication, and he decided not to go to him anymore.  It was the applicant’s decision not to keep going to the doctor. 

32. He started taking medication early in 2018.  He stopped late 2018.  The medical certificate supplied by the applicant to the Tribunal is dated 24 May 2018, and requests on his behalf withdrawal from his course for semester 1.  There is nothing from the applicant that shows that he required further assistance, or was struggling with his course, after semester 1.  Contrary to the recommendation in the certificate, on the applicant’s evidence, he ignored that suggestion and attempted semester one.  He has not explained to the Tribunal why.  It also appears that he attempted semesters 2 and 3 thereafter.

33. The applicant told the Tribunal he got involved with a bad crowd when he was at university.  He told the Tribunal in his oral evidence that he started taking drugs when he was failing, however his Personal Statement seems to have it that he started failing because he started taking drugs:

    One of the reasons of making bad grades in the university is due to the fact that I mixed up with bad friends who used to take drugs…

34. He smoked cannabis.  The people he met were at the university too.  He worked part time at the time and that paid for the cannabis.  He was a delivery driver at a pizza shop. He was arrested for cannabis use, and told the court he was using it to self medicate for his depression, and he was given a spent conviction order. 

35. He spoke to some friends about his drug use, and tried to mix with people who were not using drugs, so that he could get out of his habit.  He also talks to them when he is sad instead of using drugs, and now he does not resort to cannabis for assistance.

36. When the applicant failed, he spoke to the program director, and asked to defer his studies, however he was told that he was too late to apply for a deferment.  He thought this was in semester 3. Given the strong wording of the certificate from Dr Palmer, it is unlikely that the applicant applied unsuccessfully, and therefore applied at all, in semester 1.  He agreed that even though he was failing in first and second semester, he felt he could still perhaps pull through in the third semester.  He therefore did not speak to anyone during those semesters, even though he was failing.

37. He is not in a relationship in Australia, and I am satisfied that the reasons for the cancelation are not resulting from a relationship breakdown or domestic violence.

38. On the whole, while the Tribunal accepts that the applicant’s depression is out of his control, there were some things that may have occurred at the same time as the onset of the depression, or during the depression, that were within the applicant’s control. For example, the applicant fell into the wrong crowd and commenced drugtaking. Whether this was for self-medication purposes or otherwise, he himself accepted that it interfered with his grades at university. Again, while the Tribunal accepts that people feel pressured to do things when they are depressed, it was the applicant’s choice to take cannabis and, by his own evidence, it interfered with his grades. Furthermore, the strong recommendation from Dr Palmer was that the applicant withdraw from his studies in the first semester of 2018. While the applicant did not specifically address that recommendation in his evidence to the Tribunal, he did say that he did not like the advice the doctor was giving him in relation to both medications that he should take and what he was telling him in each session and eventually he decided that the doctor could not help him and he did not go to see him any more.

39. It appears that contrary to the doctor’s recommendation, the applicant continued to study. Accordingly, the Tribunal cannot be satisfied as to what was the cause of the applicant’s failing his course which led to the cancelation of his enrolment. Even if the applicant suffered from depression, which the Tribunal accepts that he did, the Tribunal cannot be satisfied as to the cause of that depression as it seems that, on one set of evidence, it may have been the drugtaking which led to the failures in his course which led to his depression. In any event, even if the depression was the cause of some of the failure, it appears that the applicant has not followed the advice of his medical advisor. Both the drugtaking, whether for self medication or otherwise, and the refusal to follow medical advice are well within the control of the applicant. As a result, the Tribunal is not satisfied that the reasons for the cancellation were out of the control of the applicant.  The Tribunal is therefore not satisfied that the reasons for the cancelation are such that the Tribunal should exercise its discretion and enable him to continue his studies in Australia and this weighs heavily against him being granted a further Student visa.

    The extent of compliance with visa conditions

40. The applicant has not travelled home since he has been here. He worked for 20 hours per week, from 6 months after he started studying, and stopped after 6 -12 months, maybe 12 months.  He stopped because he could not find any more work.  His car had broken down, and he had a lot of infringement notices, and he was also involved in an accident.  He crashed into another friend, and there was also a girl in the car, who hit her head.  This caused a rift in their friendship, and meant that he could no longer find work.

1. There is nothing before the Tribunal to suggest that the applicant has not complied with other conditions on his visa. However the Tribunal expects that all visa holders adhere to the conditions on their visa and as such the Tribunal gives this factor no weight in favour of the applicant and not cancelling the visa.  

2. When he found he was floundering at university the applicant spoke to the doctor in the first semester.  He also spoke to the program director to ask if he could defer, however he was told that he had missed the date to defer. As has been expressed elsewhere in these reasons, this was in the third semester. He did not speak to anyone earlier because he thought he would keep trying.

3. He did not tell the Department that his enrolment had been cancelled, or that he was struggling previously to that, because he thought he had until March 2020 to keep studying, or to keep trying to study; he thought he had the time. At first he told the Tribunal that he did not understand that the Department had the power to cancel, however he later told the Tribunal that he knew that a cancelation was probably going to happen, but he took a chance. He did not try to enrol in something when his enrolment was cancelled because he thought he had more time. He understands now that he did not.

4. However, the applicant also told the Tribunal in evidence that it was “not that simple.”  I put to him that that suggested that he did not understand that his lack of enrolment had caused the cancelation.  He said he did understand that, now.

5. His belief that he had more time, or that he would take his chances suggests to the Tribunal that the applicant did not appreciate the requirements and conditions of the Student visa, or did, but nevertheless, as he said, thought he would take the chance that his visa would not be cancelled.  That attitude suggests that the applicant was not concerned with the conditions on his visa that was granted, or at least was prepared to take a chance with non-compliance, and may not comply with conditions should he be granted another Student visa.

6. The course was cancelled on 11 February 2019.  The Notice of Intention to Consider Cancelation was sent to him on 13 August 2019, and the applicant responded on the same day, agreeing he had not been enrolled since then.  Therefore, the applicant had not been enrolled for 7 months by the time the Department contacted him. 

7. The medical certificate supplied to the Tribunal from Dr Palmer covers semester 1 in 2018.  Even accepting that the symptoms may have extended to some time after semester 1, the medical certificate does not extend to 2019, when the course was cancelled.  Combined with the length of time of the breach, that lack of extended explanation means that the breach was significant, and that weighs in favour of the visa being cancelled.

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

8. The applicant’s father has paid $50,000 as an investment in his education. The applicant also pointed to his depression, and said it may continue if his visa remains cancelled.  If it remains cancelled, he came here for nothing.  He was worried about being locked up as soon as the decision is handed down.  I explained that he will be given a reasonable time to leave the country. 

9. The Tribunal accepts that the cancelation of a visa is disappointing and that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study. The Tribunal also accepts that a cancelation may exacerbate existing depression. The Tribunal gives this consideration a little weight towards the visa not being cancelled.

   Past and present behaviour of the visa holder towards the department

10. According to the decision record there was no evidence that the applicant had been uncooperative towards the Department. I give this some little weight in his favour.

    Whether there would be consequential cancellations under s.140

11. There are no other people associated with the visa and as such this factor carries no weight in the Tribunal’s considerations.

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

12. If the current visa is cancelled, this will result in the following:

    a.The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

    b.The applicant will have limited options to apply for further visas in Australia;

    c.The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) 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 Requirement 4013 to be met.

13. I give little weight to this consideration in favour of the applicant because:

    ·These are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·It reflects the seriousness with which the Department takes this type of cancelation ground;

    ·The applicant will be eligible to apply for a bridging visa while he makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that he does not co-operate in applying for a bridging visa.

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

14. In this case it does not appear that this consideration is relevant as when asked the applicant indicated there was no reason he cannot return to Bangladesh and he has not made any claims which would relate to this consideration. The Tribunal places no weight on this in favour of the applicant.

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

15. This factor is not relevant.

    Any other relevant matters.

16. There are no other relevant matters.

17. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Genevieve Cleary
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder must be enrolled in a 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.