Baig (Migration)

Baig (Migration) [2024] AATA 2195 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohid Ejaz Baig
REPRESENTATIVE:  Liuzhuo Chen (LPN 5512200)
CASE NUMBER:  2217018
HOME AFFAIRS REFERENCE(S):          BCC2022/2199827
MEMBER:Christine Kannis
DATE:5 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 05 April 2024 at 7:38am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant has breached condition 8202 – was not enrolled in a full-time registered course – chronic health problems – applicant gave an incorrect answer in the visa application – applicant suffers severe depression, anxiety and stress – Tribunal does not accept that the circumstances in which the ground for cancellation arose were beyond the applicant’s control – written and oral evidence in relation to the applicant’s skin condition – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 November 2022 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).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 12 March 2024 by MS Teams video to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the applicant’s brother, Mr Ehab Ejaz Baig and from a friend, Mr Muhhamad Abdur Rehman Khalil.
The applicant was represented in relation to the review.
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
Procedural matter
The hearing of this matter was originally listed for 27 February 2024. On 14 February 2024, the applicant’s representative requested the hearing be rescheduled because the applicant was to participate in clinical trials due to his medical condition of hidradenitis suppurativa. The representative advised the clinical trials were due to commence on 15 February 2024 and the trial medications would begin on 29 February 2024. The request to reschedule was accompanied by a Main Participant Information Sheet/Consent Form. The Information Sheet stated that participation was voluntary and the Consent Form provided was a blank form and had not been completed. No evidence that the applicant had been accepted to participate in the clinical trials was provided.
The Tribunal noted that on 9 January 2024 the applicant was sent an Invitation to Attend a Hearing on 27 February 2024 and that the request to reschedule was received more than a month after the Invitation was sent to him. There was no evidence provided to the Department or to the Tribunal in relation to the applicant having a diagnosis of hidradenitis suppurativa or any treatment undertaken. The Tribunal notes that hidradenitis suppurativa is a chronic skin condition featuring lumps in places such as the armpits or groin. The skin lesions develop as a result of inflammation and the lumps can be painful and tend to enlarge and drain pus.
On 19 February 2024, the representative provided a psychological report dated 15 February 2024 from registered psychologist, Mr Edwin Kleynhans, which included the following information:
- Most of the information in the report is based on a 2 hour consultation on 9 December 2022 and a telephone consultation on 14 February 2024.
- The applicant developed a skin condition in 2015 which became worse in 2020-21. He had a gap in study from 14 April 2021 to July 2022 caused by anxiety, depression and loneliness and not being allowed to work his allowable working hours as an overseas student, all of which were caused by COVID-19.
- The applicant reported that during the period he was not studying his treatment for his medical condition was not effective but during part of 2023 to the present day his treatment has been more effective and he feels much better.
- The applicant’s mental health challenges in relation to his studies and his family are closely related to personal factors: personality style (melancholy, obsessive tendencies, worry about what others think of him); generalised anxiety (worry in relation to performance and relationships); family stressor (his family expecting him to complete his studies promptly as they are financially supporting him); personal stressors (COVID-19 put pressure on him to complete his studies promptly).
- He will be recommending that the applicant talk to his GP about drug therapy and referral to a psychologist for stress management techniques. The applicant told him he had not consulted a psychologist or a psychiatrist before because he believed he could solve his own problems and he could not afford to see a psychologist on a regular basis.
- The applicant reported that he is currently participating in a research project in relation to his skin condition.
- During the clinical interviews he administered psychological testing including the DASS test which indicated the applicant suffers severe depression, anxiety and stress. The applicant presented with anxiety as he feared what would happen to his career and the welfare and approval of his family. The applicant reported he had problems as a child because of his personality style and his father’s high standards.
- His opinion is that the applicant’s current stress and depression are caused by factors related to being a partial failure in Australia and his clinical history. He also found it difficult to think straight because of his father’s pressure. This was the precipitating factor in the development of the gap in his study. His medical condition was also a precipitating factor because he focused more on that than his studies.
- He is fearful his parents will suffer psychological hardship should he fail in Australia.
On 20 February 2024, the representative provided a Medical Certificate dated 20 February from Dr Prateek Sharma certifying the applicant would be unfit to attend a hearing from 26 February 2024 to 10 March 2024 due to worsening of his medical condition in the context of stopping his previous medications required as a washout for starting a clinical trial. A letter dated 15 February 2024 from Dr Sharma was provided which stated the applicant has had severe hidradenitis suppurativa since January 2022 and his condition has been severe and disfiguring, affecting his mental and physical health. Dr Sharma said the applicant is enrolled in clinical trials as his best therapeutic option because he doesn’t have Medicare or access to subsidised PBS medications. Dr Sharma recommended to not delay his clinical trial appointments as the trial is only running during a specific time.
On the basis of the evidence from Dr Sharma, the hearing was re-scheduled for 12 March 2024.
On 6 March 2024, the representative requested a further postponement until at least 27 March 2024 on the basis that the applicant was participating in a clinical trial with new medications which may significantly impact his ability to prepare and gather documents within a tight timeframe. In support of this the representative referred to the blank consent form provided which set out the possible risks and disadvantages of taking part in the clinic included the following:
-Depression, suicidal thoughts and sadness
-Headache, feeling tired, dizziness, infection etc
The Tribunal noted that the Medical Certificate dated 20 February 2024 certified the applicant would be unfit to attend a hearing from 26 February 2024 to 10 March 2024. There was no medical evidence that the applicant experienced any of the possible risks and disadvantages of taking part in the clinic or that he was precluded from preparing for the hearing due to experiencing any risks or disadvantages and the request for a further postponement was refused.
Issue in dispute
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.
Did the applicant comply with condition 8202?
On 17 November 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.
In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 12 April 2021 until 16 August 2022. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 12 April 2021 until 16 August 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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, the witnesses and the representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
On 25 August 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 12 April 2021 until 16 August 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa.
Response to NOICC
On 1 September 2022, the applicant responded to the NOICC in a submission from his representative which provided the following information:
·He came to Australia on Student Visa Subclass (500) and completed Bachelor of Information Technology.
·He held a Subclass 485 Temporary Graduate Visa and after that applied for Student Subclass (500) visa to study Master of Business Analytics from Kaplan Business School.
·He became ill and had to relinquish his studies. He was not able to continue with the same provider due to COVID-19 and his difficulty studying online. He has never studied online in Pakistan. He tried to address this issue with the student support of Kaplan, but nobody helped him.
·If his visa is cancelled his career prospects will be ruined which will cause socio-economic problems for his parents who would have spent their earnings on him.
·He could not study from 14 April 2021 to July 2022 due to chronic health problems and COVID-19. He lost his job due to COVID-19. He was of scared of the pandemic. He had thoughts about whether he would recover, whether he would meet his family again and whether he would be able to visit his country again. He was lonely and intending to see his parents but it wasn’t possible and that was killing him from inside. Due to this he stopped going out, talking to friends and lost his appetite. Furthermore, he was not used to studying online and the provider did not help him. Nobody in the institute took his calls or replied to emails and they cancelled his CoE. He applied for deferment but it was denied before cancelling.
·He wants to complete a Diploma and Advanced Diploma of Leadership and Management so he can operate his own IT company in Pakistan. International studies, especially from Australia provides a chance in the local market for jobs and for business.
·The irregularities in his studies are due to his ill health and COVID-19.
At the time of responding to the NOICC, the applicant provided CoEs for Diploma of Leadership and Management and Advanced Diploma of Leadership and Management courses, both of which were created on 16 August 2022. No medical evidence was provided at the time of responding to the NOICC.
Evidence provided prior to hearing
Vision Computer and Commerce College certificates dated January 2013 and July 2013 evidencing applicant’s completion of a course.
Medical evidence including discharge plan and summary dated in April and May 2015 from Northern Hospital which referred to the Principal Diagnosis as: admission to hospital in the home for management of penrose drain post incision and drainage of bilateral buttock accesses.
Melbourne Polytechnic Graduates Academic Achievements showing units undertaken by the applicant in 2014, 2015, 2016 and 2017.
Emails dated in April 2021 between the applicant and Kaplan College in relation to his decision to defer his next semester due to his struggles with his health conditions which had been affecting his participation and performance.
Photographs showing the applicant’s skin condition on parts of his face and body.
Statutory declaration dated 11 March 2024 made by the applicant in which he provided the following information:
·He chose to study in Australia due to an interest in IT
·His skin condition started in 2015. He had surgery but the condition was not diagnosed and the surgery did not fix the problem. The progress of his bachelor’s study was affected by the condition and he had to defer study due to the surgery. He failed 3 subjects in his bachelor’s course.
·In 2016, his condition spread to his ear and his condition deteriorated. He spoke to his course coordinator about his health issues who insisted he take the final exams. The pain caused him to miss deadlines and fail subjects.
·In summer of 2017, he had a break and took his medications and there was a slight improvement in his condition. He achieved excellent grades in 2017.
·After he completed his bachelor course he took a break from study. When he held a subclass 485 visa he applied for jobs in Pakistan but was not successful. After research and discussion with others, he decided to study a Master of Business Analytics.
·For at least 2 years when he held a subclass 485 visa his bumps were treatable at home. At the end of 2019 they were increasing but were not that painful. At the start of 2020 the bumps increased in size.
·COVID-19 lockdowns were difficult because he was always a socially active person and isolation aggravated his skin condition which spread quickly and was painful. This caused him to be depressed and anxious. COVID-19 restrictions made it impossible to get checked by a medical professional and delayed a correct diagnosis and commencement of treatment.
·In 2020 he began studying at Kaplan. In 2020 his skin condition worsened. He opted not to have surgery and tried to treat himself with medication. The bumps spread to other parts of his body and he felt too overwhelmed to show a doctor, especially given the importance of modesty in his culture. At the end of 2020 hidradenitis suppurativa had still not been diagnosed.
·In January 2021, he purchased online lotions which did not work.
·In March 2021, the condition spread further and he looked online for treatments but they were the same he had used before. He was taking 6 to 7 Nurofen per day and had trouble sleeping and carrying out day to day activities due to the bumps, the discharge and the pain. He isolated himself because of the embarrassment of the discharge. He missed classes and failed to submit assignments because he couldn’t focus. He didn’t see a doctor.
·On 12 April 2021, his CoE was cancelled despite applying for a deferral which was refused because he applied too late. The institute told him to re-enrol next semester after 3 months. However the lack of sleep and nutrition and his pain caused him not to think clearly and he didn’t care about anything but his skin problems. He was not in a physical or mental state to see a doctor and was also scared of getting COVID-19.
·The skin condition spread and affected his mobility and sleep. He started to self-loathe. The online treatments he purchased were not working.
·In mid-2021, the condition spread to the left side of his face (it was already on the right side). He researched on the internet and changed his diet in case that was the cause of his condition. He was taking 2 pills every 2 hours.
·At the end of 2021 the condition had spread all over his body. For 7 to 8 months nothing had worked and smell from the discharge was unbearable.
·At the start of 2022 he went to a party and he saw the look of disgust in his friends’ eyes when they saw his skin condition.
·He wanted to see a specialist and talk to someone. He felt it might be better to end it but thoughts of his family stopped him doing anything. His condition worsened and he started sharing it with his brother. He was disgusted and ashamed of his appearance.
·He couldn’t focus on the cancellation of his CoE and the consequences. The pain and mental stress affected his studies and his relationships with family and friends.
·His brother came to see him in November 2022. An incident in restaurant made him see a specialist who prescribed antibiotics and ordered blood tests and referred him to a dermatologist but he could not get an appointment until May 2023. He contacted Sinclair Dermatology and got an appointment in January 2023 when Dr Sharma diagnosed hidradenitis suppurativa. Medications were prescribed but did not work.
·The only medication to reduce the condition is not available to him because he is not covered by Medicare. His only option was to participate in a clinical trial which started on 1 March 2024.

Statement dated 5 March 2024 made by the applicant’s brother, Mr Ehab Ejaz Baig, in which he provided information regarding the history of the applicant’s skin condition not materially different from the information provided by the applicant and the following relevant information:
·In 2020, the applicant’s hidradenitis suppurativa resurfaced aggressively. The lumps/cysts on the applicant’s body and face made him feel anxious and hopeless. He noticed the applicant avoided video calls and preferred audio calls. The applicant told him he hated the way he looked, that he didn’t even know what this condition was and most of his time would either battle with the pain or surf the internet in the hope of finding what was happening with him and what he could do to make it stop.
·It took them a long time to get the applicant to go to doctors and get treatment because he was ashamed to face people. The worsening condition and the pressure from the family led him to start treatment. The applicant was put on different medications and antibiotics. The medication affected the applicant’s mental health as he started to show some side effects like depression, sadness and anxiety.
- He was working with mental health patients which required him to gain familiarities with traits of depression, anxiety, trauma and suicidal ideation. During conversations with the applicant he observed signs of clinical depression and the situation got more worrying when the applicant started to express suicidal thoughts and made statements such as “wouldn’t it be better to just end it once and for all”.
- When COVID-19 restrictions eased, he was able to get the applicant to meet some friends however there was a lot of pointing towards his face and uncomfortable questions. The applicant said most of his mates are married or have girlfriends but he is by himself with no hope of having the courage to approach a woman with his appearance.
- He realised the applicant had hit rock bottom and decided to travel to Melbourne on 8 November 2022. When they met at the airport he could see the applicant’s physical condition had drastically worsened. Throughout the night he saw the applicant in pain even though he had taken pain killers and positioned his face and arms to avoid pain.
- He realised the extent of the applicant’s suffering and its effect on his daily life like the need for multiple showers due to the secretion, changing of bed sheets and use of bandages. The applicant had to be force fed as he refused to eat because of his paranoia that food is making his condition worse. It was difficult to get the applicant to go outdoors as he was ashamed to face people. The applicant’s deteriorating mental health became evident and he needed professional help. He forced the applicant to arrange an appointment with a psychiatrist.
- He left Australia on 24 November 2022. He wanted the applicant to travel to Pakistan to be with family but with his condition meant he would suffer to sit through a 20-hour flight due to pain. Also, he was ashamed to see family members.
Statutory declaration dated 7 March 2024 made by the applicant’s friend, Mr Muhammad Abdur Rehman Khalil, in which the following evidence was provided:
·He met the applicant in 2015 and at that time he was a social and outgoing person.
·He lived with the applicant from 2016 to 2018. Throughout that time the applicant had trouble sitting, standing or moving and thought it was because of his back problem. The applicant often told him that he had to take Nurofen.
·After they no longer lived together he saw the applicant at least 2 to 3 times per week and noticed his movement was worse.
·In 2019 he and his partner and the applicant went to Adelaide and he realised the applicant’s condition was not internal when he saw his hotel bedsheets covered in pus.
·Throughout 2019-2020 he witnessed how the applicant’s mobility was affected by his skin disease. He acted like a disabled person. In 2020, he advised the applicant to visit his family in Pakistan but because of COVID-19, he could not do so.
·At the start of 2021, the applicant had a bump on the left side of his face which looked painful.
·Due to COVID-19, his contact with the applicant was more by phone and sometimes from the other side of his house door. The amount of Nurofen and bandages he got the applicant was alarming but he did not think of it until he attended a party in late 2021 where he could clearly see the lesions on the applicant’s face and neck. At the party the applicant’s friends ridiculed his appearance. He felt sorry for the applicant due to people keeping him at a distance and pointing at his lesions. After the applicant left he heard people making jokes about the applicant and said if they were his family they would disown him and he will never find a job.
·The applicant told him that at the party he felt like he had the plague or tuberculosis due to the way he was treated. After that he was different from the last few years, insisting on talking on the phone rather than meeting.
·In November 2022, when the applicant’s brother came to Australia, he saw the applicant constantly wiping pus out of cysts on his face. During the time the applicant’s brother was in Australia, the applicant avoided contact with people and did not like eating out and would rather get take away and eat it in the hotel room.
·The applicant’s struggles with his appearance have impacted his relationships and his confidence has been eroded. The applicant has expressed doubts about his ability to form meaningful connections or pursue romantic relationships.
Written submission from the representative which set out the history of the applicant’s skin condition and provided information not materially different from the information provided by the applicant. The representative also made submissions in relation to consideration of the discretion to cancel the visa and submitted that the two main factors for the Tribunal to consider are the circumstances in which the ground of cancellation arose and the degree of hardship that may be caused to the applicant.
Evidence provided at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:
a.He was enrolled in a Bachelor of Information Technology which was cancelled on 8 July 2015 due to Deferment/Suspension -Compassionate or compelling circumstances;
b.He was enrolled in a Bachelor of Information Technology which was cancelled on 27 July 2016 due to Non-payment of fees;
c.He was enrolled in a Bachelor of Information Technology which was cancelled on 31 October 2016 due to Non-payment of fees;
d.He was enrolled in a Bachelor of Information Technology which was cancelled on 27 July 2017 due to Non-payment of fees;
e.He was enrolled in a Bachelor of Information Technology which was cancelled on 31 October 2017 due to Non-payment of fees;
f.He was enrolled in a Bachelor of Information Technology which he finished on 15 December 2017;
g.He was enrolled in a Master of Business Analytics (Extension) which was cancelled on 12 April 2021 due to Student Notifies Cessation of Studies;
h.He was enrolled in an Advanced Diploma of Leadership and Management which was cancelled on 2 September 2022 due to Change to CoE/Student details. The CoE was created 16 August 2022 ; and
i.He was enrolled in an Advanced Diploma of Leadership and Management which was cancelled on 4 October 2023 due to Non-commencement of studies. The CoE was created 16 August 2022.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 12 April 2021 until 16 August 2022 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. He told the Tribunal he disagreed with the information with respect to cancellation of his enrolments in 2016 and 2017. He said he continued studying and assured the international officers payment would be forthcoming. He said he was allowed to continue studying and he did not know that cancellations of enrolment were recorded. He said there were delays in payment because of changes in the payment system in Pakistan.
In response to the Tribunal asking the applicant about the treatment he sought for his condition, the applicant provided the following evidence:
·In 2015 he had surgery after which his doctors told him to get used to the pain and to use Nurofen. He was given a liquid to apply to the bumps.
·He used the liquid until 2017 when his doctor suggested he use warm compresses and have hot showers. His doctor suggested hygiene changes because they did not know the nature or cause of his condition. By the end of 2017 he was having pus drained from his bumps by nurses.
·In 2018 he was not studying and he focussed on his health, a proper diet and socialising. He did not see his doctor much in 2018 and 2019 and managed his condition by having a routine and using painkillers. He had a bump behind his left ear and his doctor suggested that his ear piercing may be the cause.
·In 2020, as a result of COVID-19 lockdowns, his stress level increased and his skin condition spread over his body quickly. He treated his condition with compresses. He did not go to a doctor because in 2015 when his condition had previously been misdiagnosed he was made to undergo surgery without being informed of the reason. Therefore, he was fearful of seeking medical assistance. In addition, he was embarrassed to show himself to a doctor. He used home remedies including ointments and over the counter pain and sleeping medication. He conducted his own experiments and used the internet for research about his condition.
·In mid-2022 he saw a GP because the disease had spread to both sides of his face and he was embarrassed.
The applicant told the Tribunal that during the 2 years he held a subclass 485 visa he tried to get jobs in Pakistan based on his bachelor’s degree but after discussions with friends and unsuccessful job applications, he decided to improve his future job prospects and undertake study in a Master’s degree.
The Tribunal asked the applicant about the cessation of his enrolment in April 2021. He said he tried to defer his study but the education provider said he was too late and suggested he re-enrol in July 2021. In response to the Tribunal asking the reason he did not enrol in July 2021, the applicant said he knew it would take longer than 3 months to recover from his condition and believed it would take 6 to 12 months. The Tribunal put to the applicant that at that point he was aware he would not be undertaking study for an extended period whilst he was the holder of a student visa. The Tribunal asked the applicant the reason he did not depart Australia due to his personal circumstances. He said he couldn’t because of COVID-19 and because he was not able to travel on a 15 to 16 hour flight due to his condition.
The Tribunal put to the applicant that he would have known from 12 April 2021 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response, the applicant conceded that he was aware of his non-compliance but said his mental and physical conditions did not allow him to study.
In response to the Tribunal asking whether he contacted the Department to notify of the change in his circumstances when he ceased study, the applicant said he expected the education provider to notify the Department. The Tribunal notes that it is the responsibility of visa holders to notify the Department of changes in their circumstances that affect their visa and remain compliant with visa conditions.
When asked the reasons he did not enrol in a registered course until August 2022, the applicant’s clear evidence was that the reasons were COVID-19 and his ill health. The Tribunal noted that on 10 August 2022, the Department’s Character and Cancellation Branch sent the applicant an email regarding verification of his contact details. Noting that the applicant provided CoEs for a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management courses which were created on 16 August 2022, the Tribunal asked him the reason for obtaining the CoE within days of the Department’s email. The applicant said when he received the Department’s email he panicked because he had no idea so much time had passed without being enrolled in a course.
The Tribunal asked the applicant the reason he saw a psychologist in December 2022. He said he wanted to talk to someone about his problems. Noting that he did not return for treatment in 2023, the Tribunal asked him the reason he did not return until the hearing was scheduled. He said he used his brother as his psychologist.
When asked about the purpose of his travel to Australia, the applicant told the Tribunal that he came to Australia to study information technology. He said his interest in the field began when he was in Pakistan. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he wants to complete his study. He said he hasn’t studied in 4 years and needs to study so he can get a better job in Pakistan. He said if he returns to Pakistan without a higher qualification it will impact his family.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said his mother suffers from anxiety and depression and she will not be able to stand it if he returns without a higher qualification. He said his father would also be adversely affected because his mother’s wellbeing impacts his father. The applicant said his brother has stood by him and he owes it to the whole family to finish his study in Australia.
Mr Ehab Ejaz Baig referred to the information provided in his statutory declaration and said the applicant was unable to concentrate on enrolling in a course due to his pain. He said the applicant is now on the road to recovery but if he does not complete his study their mother’s depression would increase.
Mr Muhhamad Abdur Rehman Khalil confirmed the contents of his statutory declaration. He said he did not realise the severity of the applicant’s skin condition until very late and wished he had pushed harder earlier to find out what was wrong.
The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.
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
The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 16 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said he wants to complete his study so he can get a better job in Pakistan. The Tribunal does not consider this constitutes a compelling need.
The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 12 April 2021 to 16 August 2022. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa. The applicant’s non-compliance for a period of 16 months from cancellation of his enrolment until the issuing of the NOICC weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him and to his family. The Tribunal gives the hardship that may be caused to the applicant and his family some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment for 16 months prior to the issuing of the NOICC. He told the Tribunal that this was due to his health problems and COVID-19.
The applicant’s evidence was that he did not seek medical assistance in 2021 or in 2022 until mid-2022. When questioned further he was unable to say when he sought medical assistance in 2022 and there was nothing before the Tribunal to substantiate his claim that it was in mid-2022. Based on the applicant’s statutory declaration and Mr Ehab Ejaz Baig’s written and oral evidence, the Tribunal finds the applicant did not seek medical assistance prior to receiving the NOICC. The applicant conceded he was aware he was not studying whilst holding a student visa and said he expected to not study for 6 to 12 months. He said he was unable to think about study because of his skin condition, his poor mental health caused by his skin condition and COVID-19 lockdowns. His evidence was that during the period he was not enrolled, he was researching his condition and possible treatments on the internet. He was purchasing medications online and over the counter. He was communicating regularly with his brother, more often by telephone than by video. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder and instead spent his time on the internet attempting to diagnose and treat his skin condition. The Tribunal places weight on the applicant’s ability to undertake research and obtain treatment.
The Tribunal notes the applicant was able to obtain CoEs on 16 August 2022 after being contacted by the Department on 10 August 2022. The Tribunal accepts the applicant was suffering with health problems when he ceased studying however his health problems did not preclude him from enrolling without delay after the Department contacted him.
The applicant also said he had difficulties accessing his course online.
The applicant was no longer enrolled in a registered course on 12 April 2021 and when his enrolment was cancelled he believed he would not be able to study for at least 6 to 12 months. If a visa holder is unable to continue studying in Australia they can seek a deferment and if that is not granted, the visa holder should depart Australia and return when the issue is resolved. In his circumstances the applicant should have departed Australia. The applicant and his witnesses claim that the applicant’s mental health and family pressure precluded him from making that decision. The only medical evidence which supports this claim is from Mr Kleynhans. The Tribunal places limited weight on this evidence because it is based on the applicant’s self-report in a 2 hour consultation in December 2022 after cancellation of the visa and a telephone consultation on 14 February 2024. Mr Kleynhans’ report was not based on consultations/treatment during the period the applicant was not enrolled in a registered course. The report did not address the reason the applicant was able to enrol in a course within days of the Department contacting him, despite the claimed severity of his condition and his mental health.

The representative submitted that the applicant could not depart Australia in April 2021 because Australia’s borders were closed and he may not be able to re-enter. The Tribunal notes that the applicant was not precluded from departing Australia and further that Australia’s borders re-opened in February 2022, some 6 months prior to the NOICC.
Regarding the family pressure to succeed, this is not in the Tribunal’s view a factor which was beyond the applicant’s control. Whilst it may have been difficult to discuss his ceasing study due to his health with his family, this does not mean it was beyond his control but rather a preference not to do so.
Regarding the difficulty the applicant had with online classes, adapting to the changes brought about by COVID-19 was a challenge faced by most people and whilst difficulties may have arisen, this is not in the Tribunal’s view a factor which was beyond the applicant’s control but rather a preference not to do so.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he ceased to be enrolled in a registered course from 12 April 2021. He chose not to seek medical assistance until after he received the NOICC. The representative submitted that it was the applicant’s connecting with his brother and his friend which motivated him to seek medical assistance. Whilst their views may have been considered by the applicant, in the Tribunal’s view, given the timing it was the cancellation of his visa which was the primary reason for seeking medical assistance. The Tribunal finds the circumstances in which the ground for cancellation arose were not beyond the applicant’s control.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its 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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
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
There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The Tribunal accepts that the applicant suffers from a severe skin condition which has caused him significant pain and mental distress over several years. The applicant is currently participating in a clinical medication trial and his evidence was that his health has greatly improved. The Tribunal finds there are compassionate circumstances in this case and this weighs against cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal does not accept that the circumstances in which the ground for cancellation arose were beyond the applicant’s control. The Tribunal has found that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations.
Against this the Tribunal accepts that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department. The Tribunal accepts the written and oral evidence in relation to the applicant’s skin condition and accepts this caused him pain and mental distress insofar as his feelings of self-worth were significantly diminished and his embarrassment caused him to isolate from others.
This has been a difficult decision because although the Tribunal accepts that the applicant experienced physical and mental health issues during the period of non-enrolment, there was no medical evidence to substantiate his contention that the health issues precluded enrolment during that period. Further, as noted, he was able to enrol without delay after the Department contacted him in August 2022, despite not seeking medical assistance until after receipt of the NOICC. The Tribunal recognises that the cancellation of the visa is a significant matter and on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Christine Kannis
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.

[2024] AATA 2195

5 April 2024

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