Bhuiyan (Migration)

[2020] AATA 566

Bhuiyan (Migration) [2020] AATA 566 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MD Nazmul Hossain Bhuiyan

CASE NUMBER:  1920985

HOME AFFAIRS REFERENCE(S):          BCC2019/1450385

MEMBER:T. Quinn

DATE:26 February 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 500 (Student) visa.

Statement made on 26 February 2020 at 7:46pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – discretion to cancel visa – factors for and against cancellation – father’s health, business and capacity to pay tuition expenses – mental health – age and study history – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 July 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant has been in Australia since 5 December 2015 on the current visa which was granted on 14 October 2015.[1]  The applicant is from Bangladesh and initially came to Australia with the intention to study a Certificate IV in Information Technology and Networking, a Diploma of Technology and Networking and a Bachelor of Information Technology (Network Security) on a Higher Education Sector visa.  The original expiry date of this visa was 30 August 2019, providing the applicant with approximately four years during which the applicant would be permitted to reside in Australia for the purposes of full time study.

   [1]           See delegate’s decision.

3. On 3 June 2019, the delegate issued a Notice of Intention to Consider Cancellation (‘NOICC’) of the applicant’s visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full time registered course.[2]  The applicant did not comply with this condition of his visa from 5 March 2018 to 15 July 2019.[3]  

   [2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

   [3]           See delegate’s decision.

4. The applicant responded to the NOICC on 11 June 2019 (‘the Response’).

5. On 24 July 2019, the delegate cancelled the current visa on the basis of the breach set out in the NOICC.   A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

6. On 31 July 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

7. The applicant appeared before the Tribunal via video hearing on 24 February 2020 to give evidence and present arguments. 

8. The applicant was assisted in relation to the review by their registered migration agent.

9. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal, including material provided on the day of the hearing.

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

    STATUTORY FRAMEWORK

11. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

12. Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

13. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases,  a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

14. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course of study or training.

15. The applicant was enrolled in and completed a Certificate III in Information Technology Networking as well as the Certificate IV in Information Technology Networking and the Diploma of Technology Networking.  The applicant gave evidence that he was enrolled in a Bachelor of Information Technology (Network Security) and took three subjects, all of which he failed.   This enrolment ceased on 5 March 2018 and the applicant was not enrolled in a full time registered course of study from that date until 15 July 2019.  However, the Tribunal notes that the course the applicant enrolled in at that time was still not in compliance with the Higher Education Sector condition of his student visa.  Although this was not the basis on which the applicant’s visa was cancelled, it is still relevant to the Tribunal’s considerations as set out below. 

16. At the hearing, the applicant acknowledged and accepted that there are grounds for cancellation.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

18. 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

19. The applicant gave evidence that he came to Australia at the age of 18 in 2015.  He explained that his intention in coming to Australia was to fulfil his dream of getting a Higher Education from Australia and return to his home country and secure a job in the information technology or telecommunications field and to make his family proud.

20. The applicant’s evidence at hearing (and in all previous submissions) was that his father had a heart attack in early 2018 and associated health problems which impacted his father’s financial capacity to meet the applicant’s expenses, including tuition expenses, in Australia.  The applicant also supplied a document which appeared to indicate that the applicant’s father’s income was also impacted in mid-2018 by a natural disaster damaging the crops on his agricultural land.

21. The applicant gave evidence that he wishes to complete his Advanced Diploma of Network Security due for completion in July 2020 and a Graduate Diploma of Telecommunications and Strategic Management (which he supplied a letter of offer dated 19 February 2020 for) and then return to Bangladesh to seek employment in that field there.

22. The applicant stated that if he cannot remain in Australia and complete his studies his dream will be destroyed and it will upset his family, in particular his father who has particularly high hopes for his only son.  It was also implied in the applicant’s overall submissions that his employment prospects would be impacted without a higher level qualification.

23. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this alone constitutes a compelling need to remain in Australia.  The Tribunal accepts the applicant does wish to study and commends him for continuing his studies despite the uncertainty surrounding his visa status over the last 18 months.  The Tribunal considers this factor is finely balanced for and against cancelling the applicant’s visa.

    Circumstances in which ground of cancellation arose

24. As detailed above, the applicant’s financial capacity to meet his tuition fees was severely impacted when his father became ill and his father’s business faced financial difficulties in 2018.  Consequently, his father could not pay his tuition fees and his enrolment was cancelled.  The applicant produced to the Tribunal on the day of hearing a psychological assessment report referring to an assessment that took place in April 2018 with the date of the report being 24 June 2019.  This report indicates that the applicant suffered depressive and anxiety symptoms following his father’s medical and financial issues in 2018.  The Tribunal enquired why this report was never filed with the Department and the applicant said that it was not prepared in time for the deadline for the response to the NOICC.  The Tribunal enquired as to why the applicant did not still file it with the Department and he again said he could not get it done in time.  When the Tribunal enquired as to why the applicant had not filed it with the Tribunal before the day of hearing, the applicant said that this was because he wanted to file all the material together and was waiting on his letter of offer in relation to his proposed future studies and his father’s medical records.  The Tribunal was troubled by this evidence but accepts the applicant suffered some mental health difficulties in 2018.

25. The Tribunal also notes that at the time of his breach, the applicant was only 20 years of age and had otherwise been an exemplary student in Bangladesh and Australia, with very good grades (save for his first semester of his Bachelor level course).

26. The Tribunal accepts that the applicant’s family faced financial difficulties throughout 2018.  The Tribunal enquired about how it is that the applicant’s father now has enough money to support him (the applicant) financially.  The applicant stated that his father’s health and business have now improved and his father was in a financial position to give him $5,000AUD in mid-2019 at which time he (the applicant) repaid debts he had obtained in order to continue living in Australia and enrolled in the Advanced Diploma of Network Security.

27. The Tribunal empathises with the applicant’s personal and financial circumstances in 2018, including the fact that his father’s health and financial situation were out of the applicant’s control.  The Tribunal gives weight against cancelling the applicant’s visa in this regard. 

    Extent of compliance with visa conditions

28. The Tribunal notes the applicant’s evidence that he has otherwise complied with all previous student visa conditions save for a lengthy breach of the condition that he remain enrolled in a Higher Education Sector course.  Even now, the applicant is still not complying with this condition, as such, he is approaching 2 years in breach of this condition and whilst it is the not the basis on which his visa was cancelled, it is a cause for concern for the Tribunal.  The Tribunal does accept that it is difficult to obtain enrolment in higher education sector courses while awaiting the outcome of a visa cancellation appeal and considers that the letter of offer filed by the applicant in relation to the proposed Graduate Diploma course indicates the applicant does intend to comply with this condition.  The Tribunal also notes that the applicant failed all three subjects of his Bachelor level course in 2018 and this fails to meet the condition that he make adequate course progress.    Further, the breach of the condition associated with the current visa is extensive, being approximately 16 months.  The Tribunal considers these are significant breaches, taken as a whole, and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

29. The Tribunal refers to paragraph 22 above in this regard and the future study, employment (and therefore, financial) consequences as well as the personal consequences within his family the applicant will face if his visa is cancelled. 

30. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts 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.

31. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

32. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach.  The Tribunal finds that the factors for and against cancelling the visa in this regard are finely balanced.

    The visa holder’s past and present behaviour towards the Department

33. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

34. This is not relevant to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

35. 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 they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

    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 cancellation ground;

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

    Australia’s international obligations

36. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

    Any other relevant matters

37. The applicant presented as a committed student to the Tribunal and the Tribunal is particularly mindful of the applicant’s age at the time of his arrival in Australia, at the time of his breach and at the time of his hearing.  He is still a very young man and it seems premature to deny a person who appears to be a conscientious student the opportunity to complete his study at the age of 22.  This is particularly so when the circumstances surrounding the applicant’s breach were out of his control.  The Tribunal considers the factors for and against the applicant in this case very closely balanced.  Should the applicant seek a further stay in Australia beyond completion of his Graduate Diploma course, the evidence he gave to the contrary in this hearing will clearly be relevant to any assessment in relation to the genuine temporary entrant criteria.

    CONCLUSION

38. Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.

    DECISION

39. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    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.