Dewanjee (Migration)

[2019] AATA 6642

Dewanjee (Migration) [2019] AATA 6642 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Mrinal Kanti Dewanjee

CASE NUMBER:  1707814

HOME AFFAIRS REFERENCE(S):          BCC2017/713796

MEMBER:Justin Owen

DATE:3 December 2019

PLACE OF DECISION:  Sydney

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 03 December 2019 at 4:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – initial academic progress – family medical issues – family bereavement – applicant’s absence from his new wife – substantial completion of Master’s course – applicant’s commitment to return to Bangladesh upon completion – decision under review set aside 

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 7 April 2017 made by a delegate of the Minister for Immigration and Border Protection 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 applicant is a national of Bangladesh born 4 November 1987.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 3 June 2016 and was subject to condition 8202.  The visa had a stay period with a stay period until 2 April 2018.  On 17 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course between 5 July 2016 and 31 March 2017.  The applicant responded to the NOICC on 31 March 2017 and 6 April 2017.  On 7 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the 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.

4. The applicant appeared before the Tribunal on 2 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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?

8. 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).

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

10. The applicant supplied the Tribunal with a copy of the delegate’s decision of 11 April 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study between 5 July 2016 and 31 March 2017.  At the time of the delegate’s decision on 7 April 2017 the applicant had enrolled in a registered course of study.  The applicant therefore had not been enrolled for a total of over 8 months. 

11. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 5 July 2016 and 31 March 2017. 

12. 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

13. 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.’

14. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

15. The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia.  The applicant in response to the Tribunal’s questions said he travelled to Australia to study.  He stated that he had his final examination for his Masters of Business Administration on 10 December 2019 and after having been studying in Australia for over a decade was looking forward at returning home to Bangladesh and commencing the next stage of his life with his wife who resides off-shore. 

16. The Tribunal notes the applicant has been in Australia on a variety of Student higher education visas since 2007.  In that time he has successfully completed a Bachelor of Commerce majoring in Accounting at Australian Catholic University; an Advanced Diploma of Accounting; a Diploma of Accounting; various General English courses and according to his academic records from Universal Business School he has completed 94% of his Master of Business Administration (T1, Folio. 49),  He has studied this course throughout 2017, 2018 and 2019 and his enrolment is due to conclude on 13 December 2019 (T1, Folio. 48) upon the successful completion of his final subject.   

17. The Tribunal notes from the applicant’s submissions that the applicant was a very successful and diligent student between his arrival in 2007 and the completion of his Bachelor of Commerce in July 2014.  The applicant’s academic record between the latter part of 2014 and early 2016 was poor.  The applicant blames his father’s illness as well as the terminal illness and death of his great-uncle who he states was like a grandfather to him.  The applicant states that after his great-uncle died he returned to Bangladesh with his great-uncle’s ashes late in 2015 and he was depressed due to the loss. The applicant remained in Bangladesh where he married his wife.  He returned to Australia and commenced his MBA in February 2016.

18. The applicant reports that after returning to Australia he became very concerned for his younger sister who had a serious fever that became almost untreatable in Bangladesh.  The applicant stated that he is very close to his youngest sister and the stress of this impacted on his ability to study in 2016.  He stated that his father had to take his sister off-shore to India for tests and treatment where it was eventually discovered she had very serious pneumonia.  The applicant stated he studied his first semester in 2016 but became more concerned with his sister’s health during this period.  He states that he returned to Bangladesh in October 2016 without sitting his exams to be with his family.  He states that he remained for around six weeks before returning to Australia and applying to enrol in his MBA in February 2017.  The applicant recommenced his studies soon after and on the evidence before the Tribunal has studied continually and successfully at the Masters level since this time.               

19. The Tribunal questioned the applicant on his failure to remain enrolled in a registered course of study between July 2016 and March 2017.  The Tribunal notes the various medical evidence (T1, Folio. 63-67) the applicant has provided pertaining to his sister’s health. The Tribunal has also noted the psychologist’s reports from 15 April 2016 and 25 March 2017 (D1, Folio. 63 & T1, Folio. 69) relating to the applicant’s stress, anxiety and depression in 2015 and 2016.   

20. The Tribunal considers the reasons the applicant has given for his failure to remain enrolled for an eight month period in 2016/2017 are not what it considers to be compelling in their own right.  The Tribunal notes the paucity of the evidence of the applicant’s frame of mind and its adverse impact on his ability to remain enrolled.  Nevertheless the Tribunal does however accept that not all individuals facing mental and psychological health issues seek professional care and assistance on a regular basis.  The Tribunal accepts the evidence that the applicant’s sister was extremely unwell and this had an adverse impact upon the applicant.  The applicant discussed the challenges of his relationship with his wife given he had not been able to see her now for almost three years.  The Tribunal accepts such an absence could have a detrimental impact upon the applicant’s wellbeing.  On the basis of the applicant’s testimony is prepared to concede his sister’s health issues did have some impact upon his psychological wellbeing.  That would be an understandable situation to any individual with a seriously ill sibling.  The Tribunal does not however accept on the very limited evidence before it that the impact was so significant that it precluded the applicant from either remaining enrolled or, if he was unable to do so, seeking a deferral from his education provider or informing the Department of his circumstances.  Similarly, whilst the Tribunal accepts the applicant’s absence from his wife was distressing for the applicant, it does not consider that this necessarily precluded the applicant from remaining enrolled or, if unable to do so, seeking a deferral from his education provider or informing the Department of his changing circumstances.    

21. The Tribunal notes that the applicant did in February 2017 attempt to re-engage with his studies.  He has been a successful student since this time.   The Tribunal notes the applicant has remained an active student since the cancellation of his Student visa and has now reached the point where he has completed over 94% of his MBA course and awaits his final examination on 10 December 2019. 

22. On consideration of the evidence both individually and cumulatively, the Tribunal considers the applicant has illustrated a compelling need to remain in Australia to complete his course.  In the two and a half years since his cancellation the applicant has worked diligently in completing his subjects in order to graduate with an MBA.  The applicant’s previous academic record which included a Bachelor of Commerce at a well-recognised and respected Australian university indicates in the Tribunal’s opinion a desire to study and complete his education.  The Tribunal found the applicant to be an extremely articulate, considered and thoughtful individual.  The Tribunal considers it would be a regrettable situation if the applicant was compelled to depart Australia prior to the completion of his MBA and his graduation. The Tribunal considers it would be an onerous situation to cancel the applicant’s visa and potentially extinguish his studies at this point where he is nearing the conclusion of his time as a student and at the point of graduation.  The Tribunal notes the applicant’s oral testimony and in his written submission that he has a strong desire to return to Bangladesh after his formal graduation in January and commence his working life in the presence of and with the support of his wife, parents and wider family.    The Tribunal accepts the applicant is not motivated to remain in Australia for any other purpose than to complete his Masters. 

23. The Tribunal asked the applicant if he had any other reason for travelling to and remaining in Australia such as permanent emigration.  The applicant said he did not.   The Tribunal notes the applicant’s claims that completing his education, not permanent emigration, is the purpose of his travel to and stay in Australia.  The Tribunal notes this statement by the applicant and draws it to the delegate’s attention should the applicant attempt to utilise his Student visa as an avenue to a permanent residence visa in the future.  The Tribunal has given considerable weight to the applicant’s pronounced commitment that the purpose for his travel to Australia is his studies and his compelling need to complete his studies is so he can return offshore having successfully completed his education in Australia.  The Tribunal notes that the applicant has illustrated a commitment to study in Australia for a significant period of time at the higher education level and gives this positive weight.  The applicant stated that his desire to avoid a cancellation of his Student visa now – with his studies now concluding – was not to remain in Australia but rather to avoid the situation whereby the cancellation remains on his immigration record in the future for when he and his wife wish to visit anywhere else in the world.  The Tribunal appreciates his concerns.  The Tribunal has taken the applicant on his oral testimony to the hearing concerning his commitment to complete his studies and then return to Bangladesh.  On the evidence before it concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor against cancelling the visa. 

24. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for over eight months to be reasonably significant.  The Tribunal notes from the applicant’s oral testimony that he arrived in Australia in 2007.  As the Tribunal put to the applicant, he has held seven visas whilst in Australia.   The applicant in his oral testimony stated that he was aware that a condition of his Student visa was that he remain enrolled in a registered course of study.  He admitted he had received a letter outlining the conditions of his visa and the consequences of non-compliance, though he stated he only became aware that both his enrolment had ceased and the potential impact of this on his visa in December 2016 after returning from Bangladesh.  Given the applicant’s vast experience with Australia’s migration system, the Tribunal does not accept this claim and considers the applicant was experienced with the visa requirements and obligations for a visa holder.  The Tribunal is of the opinion the applicant was aware he was not complying with the conditions of his Student visa whilst no longer enrolled in a course of study.  The applicant claims in his oral testimony that he did not think about his visa conditions as he was focused entirely on his home and family situation at that time and was not thinking about his studies and his obligations.  The Tribunal notes the applicant had an obligation to keep himself informed and updated as to his immigration status.  It does however take into account the applicant has been in Australia for over a decade with no other record of adverse behaviour in relation to his compliance with visa conditions. On the evidence before it the Tribunal weighs this factor slightly in favour of cancelling the visa. 

25. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his Student visa be cancelled.  

26. In relation to hardship that may be caused to the applicant himself, the applicant said cancellation would be damaging to his career. He claimed he had already endured hardship, being his inability to depart Australia to see his wife in Bangladesh for over two and a half years whilst waiting for his review to be completed and holding a Bridging visa which did not allow him to travel offshore and return to Australia. The applicant stated that he and his wife in Bangladesh had ambitions to travel in the future after he returned home and he was concerned about having a visa cancellation on his immigration record. The applicant also talked about his family’s expectations and his desire not to disappoint them after they had invested so significantly in his education for such a period of time. The Tribunal has some doubts as to the applicant’s arguments concerning hardship. The Tribunal appreciates the prolonged absence from his wife has been difficult but notes he retained the ability to remain in close communication with his wife via telephone, social media and other communications during this period. The Tribunal appreciates his concerns about the potential impact upon future visa applications elsewhere in the world and accepts that he does not wish to have a visa cancellation on his immigration record. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date.  The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  The Tribunal furthermore notes the applicant has almost completed his studies and has plainly stated in both his oral testimony and written submission that he intends to return to Bangladesh after completing his final examination that is scheduled later in December.  He appeared confident to the Tribunal that he will successfully complete his last examination and conclude his studies and his time in Australia.  As for the applicant’s claim cancellation would be damaging to his career, the Tribunal notes the applicant has a noteworthy academic record with a list of achievements in Australia.  The Tribunal is not satisfied he will not be a candidate of merit in any future pursuit of gainful employment as a graduate holding both Bachelor and Master degrees.  The Tribunal appreciates the applicant’s claims concerning hardship that may be caused to him personally but considers it – so long as he has completed his last examination and finished his MBA - to be marginal. 

27. The Tribunal has considered the hardship that might be caused to the applicant’s family.  The applicant does not have any family members in Australia.  The Tribunal has considered hardship in relation to the applicant’s parents.  He stated that cancellation of his visa would cause hardship for his family given they had been so committed to his education and their dream was to see him complete his university studies in Australia.  The Tribunal accepts that the applicant’s parents will be disappointed if the applicant’s Student visa was cancelled.  That is understandable, particularly for his parents given the sacrifice they have made to further their son’s education. Whilst recognising the disappointment, the Tribunal does not consider the hardship faced by his parents and extended family with the cancellation of his Student visa to be onerous or significant.  The Tribunal notes the applicant has not seen his parents or his wife for some time and he expressed an entirely understandable sadness that he had not been with them now for years.  Should he be compelled to return offshore he will be reunited with his wife and parents who the Tribunal is satisfied he misses very much.  On the evidence before it relating to the degree of hardship that may be caused to the applicant and the applicant’s family, the Tribunal weighs this factor in favour of cancelling the visa.  The Tribunal notes its view concerning hardship is influenced by the assumption that the applicant will successfully complete his final examination on 10 December and conclude his studies at that time.     

1. The Tribunal has considered the circumstances in which the ground for cancellation arose.

2. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 5 July 2016 and 31 March 2017. The ground for cancellation arose due to the failure of the applicant to remain in a registered course of study for a total of over 8 months. 

3. The Tribunal has considered the medical documentation the applicant provided concerning his sister’s health-related issues and the impact that had upon him personally.  The Tribunal notes the report the applicant provided from his psychologist dated 15 April 2016 which highlights the stress, anxiety and depression the applicant claimed to feel at the time his great-uncle became unwell and passed away (T1, Folio. 69).  The Tribunal furthermore notes the report from the same psychologist Mr Stephen Sutton on 15 March 2017 which highlights the circumstances that led the applicant to become unenrolled for eight months – namely the undiagnosed illness of his younger sister as well as issues such as the absence of his wife that adversely impacted upon his ability to focus, concentrate and successfully complete his studies.      

4. The Tribunal asked the applicant if he sought a deferral from his education provider given he was feeling unable to successfully complete his studies.  The applicant states he did not as he was too focused on his family at that time.  The Tribunal asked the applicant if he informed the Department of his change in circumstances.  The applicant did not.  The Tribunal asked the applicant if he was aware that not being enrolled in a registered course of study for eight months would impact upon his eligibility to continue to hold a Student visa.  The applicant stated he was not fully aware of this condition at this time as he was focused at that time on his home and family situation.   The applicant is not satisfied with this response.  The Tribunal notes that the applicant has been in Australia for a significant period of time and has experience with the Australian migration system and the obligations of visa holders.  According to the decision record he has held seven visas in Australia.  The applicant says he became aware that his enrolment had ceased after returning to Australia in December 2016.  He states that he then went to his studies coordinator and set in place the process that ended with him enrolling in an MBA in March 2017 which he has successfully studied up until the present day.      

5. Given the general paucity of evidence concerning the applicant’s claimed mental and psychological issues (notwithstanding the Tribunal’s acknowledgement that not all individuals facing depression and anxiety seek professional assistance and advice) and the general vagueness of the applicant’s explanation of the mental health challenges he faced, the Tribunal considers the applicant’s explanation for the circumstances in which the ground for cancellation arose are vague and superficial. The Tribunal acknowledges the psychologist reports from April 2016 and March 2017 that have been provided and accepts that his sister was very unwell during the period he was not enrolled.  The Tribunal accepts the situation caused the applicant a degree of stress and anxiety.  The Tribunal does not however consider the situation wholly justifies or mitigates his period of non-enrolment.          

6. The Tribunal reasonably expects the applicant by 2017 would have been aware of the conditions attached to his Student visa and doubts his claim that he was not aware of his enrolment situation until December 2016.  The Tribunal notes that he had an obligation to be aware of his situation and his obligations as the visa holder.  Weighing up against this are the applicant’s claims concerning the impact his sister’s illness had upon him.  Whilst the Tribunal considers the evidence that has been submitted pertaining to the illness – and its impact upon him and his ability to continue to meet the conditions attached to his visa – are not strong, the Tribunal gives a significant amount of weight to the applicant’s firm commitment to study since recommencing his MBA in March 2017 and considers he has shown a strong and genuine commitment to his education since that period, now at the point where he is about to conclude his studies and return to Bangladesh.         

7. On the evidence before it relating to the circumstances in which the ground for cancellation arose, the Tribunal weights this factor slightly against cancelling the visa.     

8. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    There is no evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department. On the evidence before it the Tribunal weighs this factor against cancelling the visa. 

9. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. The applicant in oral evidence confirmed this. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

10. The Tribunal has considered whether there are 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 of the applicant’s visa.  The applicant stated he does not have any children or partner. There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

11. This has been a challenging decision for the Tribunal.  The grounds for cancellation are clearly met and the Tribunal finds the applicant’s explanation for the the circumstances as to why he was not enrolled in a registered course of study for over 8 months is not in its own right compelling.  The Tribunal acknowledges the evidence that was submitted by the applicant concerning his younger sister’s illness and the impact it had upon him including his report from a psychologist Mr Sutton as his explanation for the circumstances in which the ground for cancellation arose.  The Tribunal however considers the evidence to be only of limited value and notes the psychologist’s report from 2017 that was submitted dates from after the applicant received the NOICC.   Weighing up against this however is what the Tribunal considers is a genuine commitment to higher education and study that the applicant has exhibited for many years.  The applicant successfully completed a Bachelor degree majoring in accounting at a leading Australian university and completed both a Diploma and Advanced Diploma in Accounting.  The Tribunal gives positive weight to the applicant’s efforts to regularise his status and reenrol in his MBA in March 2017 but his commitment to completing his studies in the two and a half years since that time.  His academic results since arriving back in Australia and recommencing his MBA have been excellent and he is now on the cusp of completing his Master’s degree. The Tribunal found the applicant to be an articulate and impressive witness.  The Tribunal is prepared to accept his strong and consistent statement that he intends to finish his last exam on 10 December and depart Australia in January where he will recommence his life and career with his wife and broader family in Bangladesh.  He has expressed strong remorse for failing to remain enrolled in the 2016-17 period and requested the opportunity to finish his last exam and depart Australia permanently without a visa cancellation against his record.   The Tribunal considers it would be unfortunate after such efforts to cancel the applicant’s visa at this point in his higher education journey.  The Tribunal closely questioned the applicant about his future intentions and is satisfied his purpose for being in Australia has been study.  That study after a long journey is almost complete.  The Tribunal considers the applicant in the circumstances has a compelling reason to remain in Australia through to the imminent completion of his studies.   The Tribunal considers the hardship that would be caused to the applicant if he were not able to be provided the opportunity to finish his studies, attend his graduation and then depart Australia to resume his life in Bangladesh with his wife and family narrowly but ultimately outweighs the circumstances in which the grounds for cancellation arose.       

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

    DECISION

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

    Justin Owen
    Senior 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.