Bhatti (Migration)

[2020] AATA 2857

Bhatti (Migration) [2020] AATA 2857 (7 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Waseef Hussain Bhatti

CASE NUMBER:  1901509

HOME AFFAIRS REFERENCE(S):          BCC2018/5226622

MEMBER:Donna Petrovich

DATE:7 July 2020

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 07 July 2020 at 12:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – mother’s illness and applicant’s returns to home country – no approach to education provider or department – recommencement of study – close to completing diploma, with conditional offer for degree study – intention to return to home country after completing degree – family and work opportunities – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 January 2019 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 that applicant remained un-enroled from 23 February 2018 to the 7 January 2019 a period of 11 months. 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 5 May 2020 to give evidence and present arguments.   

4. The applicant was not represented in relation to the review by his registered migration agent.

5. 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

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 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).

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

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).

   Background

10. The applicant is a 23 year old single man from Pakistan, who told the Tribunal that he allowed his enrolment to lapse, when his mother became ill in November 2017.  He told the Tribunal that he visited his Mother in Pakistan out of concern for her health. He returned to Australia, and after a short time of one or two months he was informed by his brother that his mother’s condition had worsened, the applicant told the Tribunal that he then went back to Pakistan as his mother’s conditioned had worsened.  The applicant told the Tribunal that he was very close to his mother and so concerned about her illness, that he could not think of anything else.  The applicant told the Tribunal that his mother had an operation and provided medical evidence that his mother had a hysterectomy, and that she is now in good health.  The applicant remained unenrolled from the 23 February 2018 until 7 January 2019, a period of 11 months.  The applicant was enrolled in a Diploma of Information Technology at the time and was issued with a Notice of Intention to Consider Cancellation (NOICC) on 7 January 2019, the applicant responded to the NOICC, and provided the Department in his response the reason for his un-enrolment was beyond his control.

    The applicant provided the Tribunal with the following documents for consideration

11. A Conditional Letter of Offer from Victoria University, Sydney Australia with a Conditional Offer of a Bachelor of Information Technology, dated 18 March 2020

12. Emirates Tickets detailing flights from Australia to Pakistan

13. Certificate of Enrolment

14. Final Submission from Blackcoat Partners

    Consideration of the discretion to cancel the visa

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

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

16. The applicant told the Tribunal that he had come to Australia with the Intent to study a Diploma of Information Technology and further a Bachelor of Information Technology, and first came to Australia 19 June 2016.  He informed the Tribunal that when his mother became ill, he was concerned only for her health and left Australia to be with her with the knowledge that he was putting his visa at risk, but was so overwhelmed with the need to be with his sick mother, that he was of the view, and that he probably would not be returning to Australia.  The Tribunal in considering this takes the view that the applicant was convinced his mother was so ill that he was compelled to return to Pakistan to be with her, knowingly putting his visa at risk. The applicant told the Tribunal that he wished to complete his studies and has continued to study a Diploma of Information Technology which he is due to complete in July 2020, he would like to continue his studies and undertake a Bachelor of Information Technology, which he told the Tribunal will commence 27 July 2020 and complete 30 June 2023, and provided a conditional letter of offer from Victoria University Sydney.  The applicant told the Tribunal that he has completed 15 units and intends to complete his studies, the Tribunal considers the applicant’s breach to be significant, but because of the applicant’s age and his commitment to recommence his education the Tribunal considers that the applicant has re-established himself as a student and therefore his reasons for staying in Australia.  On this basis the Tribunal places some weight in the applicant’s favour.   

    The extent of compliance with visa conditions

17. The applicant did not comply with his visa conditions by not maintaining an enrolment in a registered course of study for a period of 11 months from 23 February 2018 until 7 January 2019.  The Tribunal considers this timeframe a significant breach and therefore places weight against the applicant in considering discretion not to cancel. The Tribunal is sympathetic to the Applicant in his concern for his mother’s health, but considers the breach significant as the applicant remained unenrolled for a period of 11 months and did not seek assistance in regard to his situation with his education provider or the department and in this case the Tribunal places little weight in favour of  the applicant in this regard.

    Degree of Hardship that may be caused

18. The applicant told the Tribunal that he intended to return to Pakistan once he has obtained his Bachelor degree and that currently he would not be qualified to perform the duties which he has waiting for him either working with his brother in Information Technology, or in further developing his family business in Agricultural Sales and Marketing, which the Tribunal has considered, and accepts that this may cause the applicant some hardship. The Tribunal also takes into consideration that the applicant has used his study rights to continue his studies and notes that he is currently doing a Diploma in Information Technology, which will be completed in July 2020. The Tribunal gives some weight in favour of the applicant in this regard as he is passing his subjects with good grades and has completed 15 units of this course.  The applicant told the Tribunal he intends to continue his studies if he is able, and complete a Bachelor of Information Technology, he will then return home to work in the family business or with his brother. 

    Circumstances in which the ground for cancellation arose.           

19. The applicant told the Tribunal that he became very distressed when his mother who he is very close to became ill. He went to Pakistan to be with her and then returned and was notified by his brother that his mother has become very weak and was quite ill. He then returned to Pakistan once more and told the Tribunal that he was not sure at the time he was going to return to Australia.  The applicant told the Tribunal and provided medical evidence that his mother required a hysterectomy, which also required the removal of a tumour.  The Tribunal accepts that the applicant was concerned for his mother’s wellbeing and is sympathetic in this regard.  The Tribunal is concerned, however, that the applicant did not seek assistance from his education provider, nor notify the department of his situation. He had also in this case it seems failed to consider the importance of his enrolment and not prioritised his study or his visa in this case allowing his enrolment to lapse for a considerable time of 11 months. The applicant seems to have been so overcome with concern for his mother that he disregarded his own situation and his visa, which was evidenced when he told the Tribunal “I did not think I would be returning to Australia”. The Tribunal in considering this, places some little weight in favour of the applicant.     

    Past and present behaviour of the applicant toward the Department

20. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given in favour of the applicant in this regard in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140

21. In this case the applicant is a single male with no dependants and therefore, s.140 is not under consideration. Therefore, the Tribunal places neutral weight in this regard.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

22. The circumstances in this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

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

23. The applicant understood that he would need to return to  if her visa was cancelled I acknowledge that he would need to apply for bridging visa to remain lawfully in Australia so that he can finalise any outstanding matters and it was discussed with the applicant that he would be subject to Section 48 of the Act which would l limit his options for returning to Australia.

    Other relevant factors  

24. Having considered the evidence presented by the applicant at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

    If a permanent visa whether the applicant has strong family or business ties

25. The applicant is not seeking a permanent visa and his entire family reside in Pakistan, therefore, the Tribunal places neutral weight in this regard.

26. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

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

    DECISION

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

    Donna Petrovich
    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.