ARIF (Migration)

[2019] AATA 6106

ARIF (Migration) [2019] AATA 6106 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD ARIFUL ISLAM KHAN ARIF

CASE NUMBER:  1823752

HOME AFFAIRS REFERENCE(S):           BCC2018/1333898

MEMBER:Joseph Lindsay

DATE:19 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 19 December 2019 at 4:27pm

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 – failure to take reasonable steps to maintain enrolment – circumstances not beyond applicant's control – subsequent actions – completing a course of study whilst on bridging visa – good academic progress – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached condition 8202 of his student visa. 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 19 December 2019 to give evidence and present arguments. The applicant’s representative attended the hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from 22 September 2017 to 19 July 2018. In the hearing, the applicant readily admitted that he was not enrolled in a registered course from 22 September 2017 to 19 July 2018.

8. On the evidence before the Tribunal, the Tribunal finds that the applicant was not enrolled in a registered course from 22 September 2017 to 19 July 2018 and the applicant has not complied with condition 8202(2).

9. Accordingly, the Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

   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 circumstances in which the ground for cancellation arose

11. The Tribunal acknowledges the written submissions provided to the Tribunal where it was explained, in summary, that the applicant experienced a series of difficult circumstances including:

    -Issues regarding his sister in Bangladesh where his sister was subjected to domestic violence.

    -His sister’s situation in Bangladesh had an adverse psychological impact on him, and this in turn adversely impacted on his studies, particularly in 2016.

12. In the hearing, the applicant admitted that his academic record in 2016 and 2017 was appalling, where he failed eight subjects.

13. The applicant indicated that his sister’s situation has improved, where she has re-married and is now living happily as a permanent resident in Canada.

14. He also indicated that because he was allowed to study whilst on a bridging visa, he re-enrolled in a Bachelor of Business Information Systems at AIH Higher Education that commenced on 9 July 2018. He provided a copy of his current academic record that shows he has now completed twelve subjects. He has performed reasonably well where he has achieved two distinctions and five credits. He assured the Tribunal that he is now committed to his studies and is on track to complete his course by the end of 2020.

15. He assured the Tribunal that his mental health is stable and he is not undergoing any mental health treatment.

16. He provided information to demonstrate that he is able to financially support himself and pay his course fees.

17. The Tribunal makes the following findings.

18. The Tribunal does not accept that the applicant took reasonable steps to manage his student enrolment. The Tribunal does not accept that the circumstances as to why he breached his visa condition (8202) were beyond his control.

19. However, the Tribunal places heavy weight on the subsequent actions of the applicant to prove that he is genuine about actually completing a course of study where he enrolled in a Bachelor of Business Information Systems in 2018 and he has demonstrated good academic progress since that time.

20. The Tribunal accepts that the applicant has access to the requisite financial resources to support himself and pay his course fees and that he is likely to have access to the requisite financial resources to support himself and pay his course fees in the future.

21. The Tribunal accepts that the applicant’s sister’s situation has improved, where she has re-married and is now living happily as a permanent resident in Canada.

22. The Tribunal has decided to exercise its discretion in favour of the applicant and that he should be given a last chance because, in short, he has demonstrated that he is serious about now doing what he is meant to do on his study visa – study.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Joseph Lindsay
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.