HABIB (Migration)

[2020] AATA 476

HABIB (Migration) [2020] AATA 476 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Alifia HABIB
Mr MURTAZA
Master Daniyal MURTAZA

CASE NUMBER:  1708303

HOME AFFAIRS REFERENCE(S):          BCC2017/1001842 1708303

MEMBER:Justin Owen

DATE:31 January 2020

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants. 

Statement made on 31 January 2020 at 12:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Masters of Business Administration – not enrolled in registered course – childbirth – medical complications – granted two deferrals – administrative error by education provider – circumstances beyond applicant’s control – attempted to recommence studies early – sound academic record – genuine student – unreasonable hardship if visa cancelled – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The first-named applicant is a national of Pakistan born 5 January 1988.  Her Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 1 February 2016 and was subject to condition 8202.  The visa had a stay period until 2 April 2018.  On 27 March 2017 the first-named applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the first-named applicant did not comply with condition 8202 of his visa, as she had ceased to be enrolled in a registered course on 8 August 2016.  The first-named applicant responded to the NOICC on 10 April April 2017.  On 11 April 2017 the delegate decided to cancel the visa held by the first-named applicant on the basis that the first-named applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the first-named 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first-named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicants appeared before the Tribunal on 29 January 2020 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

7. 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

8. 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?

9. 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).

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

11. When making the application for review, 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 since 8 August 2016.  At the time of the delegate’s decision of 11 April 2017 the applicant therefore had not been enrolled for a total of over 8 months.

12. At the hearing the applicant confirmed in questioning by the Tribunal that he had not been enrolled in a registered course of study during this period. 

13. 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

14. 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’.

15. 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.

16. The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia. 

17. The applicant stated to the Tribunal the purpose of her travel to and stay in Australia was to study.  She discussed the increased work opportunities in Pakistan that would be available to her as a graduate with a Masters of Business Administration.  The Tribunal notes the applicant’s sound educational record prior to arriving in Australia which includes a Bachelor of Science. 

18. The applicant arrived in Australia in February 2016 with a commencement date for her MBA studies in March 2016.  At this time the applicant was seven months pregnant.  The applicant’s son Master Daniyal Murtaza was born 16 May 2016 (T1, Folio. 28).  The applicant states that she applied for and was granted a deferral until the July 2016 intake by her education provider Group Colleges Australia (GCA). 

19. The applicant had a range of medical complications with the birth of her son and received medical advice that advised rest and a further deferral of her MBA studies.  The applicant stated she then applied for 6 months deferral from GCA (T1, Folio. 44) which was approved.  GCA also issued the applicant in August 2016 with an offer letter for its March 2017 (T1, Folio. 60) MBA intake which at the time was the next semester intake.

20. The applicant stated that after recovering she enquired into recommencing her studies at GCA earlier via the summer session that ran between October and December 2016 only to be informed by the course coordinator that as she had not completed either of the compulsory intakes in February or July then she could not start the summer session as a beginner.  The applicant stated she was advised to stick with her existing offer of March 2017. 

21. GCA however in 2017 changed the commencement dates of its terms to January and May (T1, Folio. 96).  The applicant contacted the GCA in February 2017 for enrolment/orientation only to be informed that she had missed the January 2017 commencement and would have to shift to May 2017.  The applicant states that GCA did not inform her of the change from March to January.

22. The applicant was subsequently issued a valid CoE in March 2017 for the May 2017 intake.  Whilst the delegate cancelled her visa in April 2017, the applicant commenced full-time studies the following month.  The applicant has studied for her MBA on a full-time basis since May 2017.  She has held a valid CoE since that time and at the time of decision has completed 13 of her 16 units for the award of the MBA.  She is already eligible for the award of the Graduate Diploma of Business Administration (T1, Folio. 40).  The Tribunal also notes the applicant completed the General English (Upper Immediate) course on 12 May 2017 that GCA requested be successfully completed before commending the MBA studies (T1, Folio. 39). 

23. The Tribunal notes the applicant since May 2017 has studied full-time, cared for her son Master Daniyal Murtaza who was born in May 2016 and had a second son, Master Hassan Murtaza who was born on 2 October 2018 (T1, Folio. 76). 

24. The applicant at the hearing stated she is due to complete her MBA studies in May 2020 and she and her family will then return to Pakistan where she will utilise her Australian qualifications in the local employment market.

25. The Tribunal notes that the applicant’s education plans in 2016 and early 2017 were impacted by her pregnancy, complications arising from her pregnancy as well as what the Tribunal considers are deficiencies in the administrative procedures of her education provider.  The Tribunal notes that the provider concedes in its correspondence that it granted the applicant two deferrals (which were requested for the March 2016 and July 2016 intakes) (T1, Folio. 98) and made an offer for the next intake that was scheduled to be in March 2017.  The provider then changed the intake from March to January 2017 without informing the applicant.  The Tribunal notes the correspondence the applicant has provided between the provider and her agent and the genuine concern expressed about the change in the commencement date.  The applicant ultimately was made an offer to commence in the next cohort – May 2017 which she undertook and she has remained a full-time, successful student since that time.

26. The Tribunal found the applicant to be a committed, intelligent and motivated individual with a strong commitment to her studies and improving her future employment prospects for the betterment of herself and her family.  Whilst she has had two sons whilst in Australia, the Tribunal accepts that the purpose of her travel is study and that she and her family have a genuine desire and intention to return to Pakistan upon the conclusion of her studies in Australia. 

27. 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. 

28. 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 her visa by not being enrolled in a registered course of study for some eight months to be predominantly the unfortunate result of administrative error and oversight from the perspective of the applicant’s education provider rather than the fault of the applicant.  The applicant, in the Tribunal’s opinion, was quite reasonably granted two deferrals due to her pregnancy and post-natal complications arising from the pregnancy.  She attempted to recommence her studies in October 2016 but was refused by her education provider due to its administrative processes.  The applicant was offered enrolment in what was at that time the next scheduled intake in March 2017 which she accepted.  Her education provider then changed the next scheduled intake to January 2017 which she was not informed of.  After discovering this in February 2017 – prior to the issuance of the NOICC – she attempted to obtain entry to her MBA studies and was ultimately offered a position in the subsequent intake in May 2017.  She has remained a sound and committed full-time student for the last two and a half years and has now almost completed her MBA studies. There is no evidence before the Tribunal that the applicant has not complied with any other conditions attached to her visa.

29. On the evidence before it the Tribunal weighs this factor against cancelling the visa. 

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

31. The Tribunal notes that the applicant states and her family intend to return to Pakistan after she concludes her MBA studies in May. 

32. The Tribunal considers the main hardship that would be caused to the applicant through the cancellation of her Student visa pertains to her higher education studies.  At the time of decision the applicant has successfully completed 13 of her 16 units to be granted the MBA.  She has completed her studies these past two and a half years full-time whilst also having a second child and raising her first son that is now a toddler.  The Tribunal is satisfied that the applicant is a talented student who has demonstrated significant drive and motivation to complete her studies in challenging circumstances both from a personal point of view as well as the uncertainty relating to her visa status and her review before the Tribunal. 

33. The Tribunal considers the hardship that would be caused to the applicant and her immediate family in Australia by the cancellation of her visa would be significant.  She would not graduate with the Australian qualification she has almost completed.  She has spent many thousands of dollars on her studies already.  Given the Tribunal considers the applicant’s predicament is a result of what it largely considers were the poor administrative practices of her education provider than the applicant herself, the Tribunal considers the hardship to be even more onerous and unjustified. 

34. At the hearing the applicant said her family in Pakistan would be very sad if she returned prior to the completion of her degree.  The applicant spoke about how she is the only female in her family to graduate with a Bachelor degree already and now on the brink of a Masters.  Whilst the applicant may potentially be able to gain credit for her completed studies if she returned to Pakistan prior to its completion, the Tribunal considers the circumstances in this particular case would be unreasonable. 

35. The Tribunal considers a significant degree of unreasonable hardship would be imposed on the applicant if her visa was to be cancelled.

36. On the evidence before it relating to the degree of hardship that might be caused to the applicant and her family, the Tribunal weights this factor against cancelling the visa.          

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

38. At the Tribunal hearing the applicant conceded in oral evidence that she had not been enrolled in a registered course between 8 August 2016 and the delegate’s decision in April 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. 

39. The Tribunal is satisfied that the circumstances in which the ground for cancellation arose were largely beyond the applicant’s control. 

40. As the applicant has outlined in her oral testimony to the hearing as well as in written submissions, the applicant was due to commence her MBA studies in March 2016.  She was granted two deferrals from her education provider due to her pregnancy (giving birth to her son in May 2016) and subsequent post-natal medical conditions.  The applicant provided her education provider with medical evidence outlining these issues and which the Tribunal accepts.

41. In August 2016 the applicant requested a deferral due to her ongoing medical conditions at the time.  Her obstetrician recommended 6 months rest until January 2017.  A request for a deferral was granted by the education provider. 

42. On the evidence it appears that despite being informed a deferral was granted and the applicant informed she was being moved to the March 2017 intake, GCA did not issue a further valid CoE.  This resulted in the applicant holding no valid CoE beyond August 2016 despite having written confirmation from the provider that she had been added to the March 2017 MBA intake at GCA and a request for payment of fee for the deferral and the issuance of a new CoE fee for the period leading to the March 2017 intake (T1, Folio. 67). 

43. The Tribunal notes that the applicant attempted to recommence her studies in late October 2016 in the summer semester but was informed by her provider that she was unable to commence the summer course as a beginner and had to wait until her scheduled commencement in March 2017.  The Tribunal notes the applicant then contacted her provider in February 2017 for her enrolment only to discover at that time GCA had not provided her with a CoE despite granting the deferral.  It was at this time, the applicant claims, she discovered GCA had changed the term dates for 2017 from March and July to January and May, meaning she had missed the earliest opportunity to commence her studies.  The applicant has stated her provider did not inform her of these changes.  On the evidence before it, the Tribunal accepts the applicant’s claims on this matter. 

44. The Tribunal considers the circumstances in which the ground for cancellation arose is an unfortunate error involving the applicant’s education provider as well as the applicant not ensuring she had obtained a further CoE.  The Tribunal accepts that she did not intentionally commit an error or breach of her visa conditions.  The Tribunal accepts her argument that, after receiving confirmation in August 2016 that she had been granted a place in the next March 2017 MBA intake and her deferral request due to her medical condition had been approved, she had a reasonable expectation that she was meeting the conditions attached to her visa and her Student visa was in order.  Whilst it can be argued the applicant should have pursued the CoE at this time, the Tribunal notes the applicant was looking after a new-born baby and a toddler at this time as well as dealing with significant post-natal medical conditions.  She relied upon the advice of her education provider that her deferral had been approved and a position put in place for her in the March 2017 intake.  The Tribunal places further positive weight on the fact that the applicant subsequently attempted to recommence her studies early in October 2016, only to be refused by her provider who advised her to remain with the previously agreed March 2017 commencement.  The Tribunal is satisfied that the applicant was and remains a committed higher education level student with a genuine commitment to her studies.  The ground for which the cancellation arose are, in the Tribunal’s opinion, the result of what it considers are largely the deficient administrative practices of her education provider rather than the specific fault of the applicant.  

45. The Tribunal is satisfied that the applicant was granted deferrals from her studies by her education provider.  The Tribunal considers the applicant had a reasonably held expectation that, having been informed she had been granted a deferral as well as a place in the March 2017 MBA intake, that she was meeting the enrolment conditions of her visa.  Whilst having an offer it is obvious that the education provider nevertheless did not issue a further CoE until the applicant discovered this and made significant efforts to rectify this prior to the issuance of the NOICC.  The applicant has apologised for the breach of condition 8202 and states it was an entirely unintentional blunder on her part.  The Tribunal accepts the applicant’s explanation and considers her subsequent strong and successful academic record since the cancellation highlights the genuineness of her statement.    

1. On the evidence before it relating to the circumstances in which the ground for cancellation arose, the Tribunal weighs this factor strongly against cancelling the visa.     

2. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   The applicant said she met the other conditions attached to her visa.  The Tribunal notes the applicant responded to the Department’s s.119 letter and gives this some positive weight.  On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

3. 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. The applicant’s husband and son’s visas would be cancelled under s140 if the applicant’s visa were to be cancelled.   On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

4. 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.  Cancellation of the applicant’s visa will result in the consequential cancellation of the visa of her son Daniayal Murtaza who is three years old at the time of decision.  Since the delegate’s decision the applicant has also given birth to a second son, Master Hassan Murtaza who is 15 months old at the time of decision. 

5. Cancellation of the first-named applicant’s visa would not result in either child being separated from either parent.  The Tribunal has considered the UN Convention on the Rights of the Child (CROC).  The immigration status of the first-named applicant’s children remains the same as the first-named applicant and their father, the applicant’s husband who holds a visa as a consequence of the first-named applicant’s visa.  Cancelling the first-named applicant’s visa therefore will not create a situation whereby some members of the family unit are able to remain in Australia whilst others return to Pakistan: as a family they will return to Pakistan.   There is no issue on the evidence before the Tribunal of either child being separated from either parent.  There is no evidence before the Tribunal or claim made which indicates that cancellation would be in breach of Australia’s international obligations.   On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

6. The Tribunal notes that the applicant will become an unlawful non-citizen if her visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if she does not voluntarily depart Australia. She will also be subject to an s48 bar which will limit her options in applying for further visas in Australia. The Tribunal notes that the applicant, if she were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date. The Tribunal however also notes that if her visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow her to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

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

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first-named applicant’s Subclass 573 Higher Education Sector visa. The Tribunal has no jurisdiction with respect to the other applicants.

   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.