Haider (Migration)

[2019] AATA 1387

Haider (Migration) [2019] AATA 1387 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shafi Haider

CASE NUMBER:  1802616

HOME AFFAIRS REFERENCE(S):           BCC2017/3331759

MEMBER:Vanessa Plain

DATE:18 April 2019

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 18 April 2019 at 3:49pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances surrounding the cancellation – ill health – non-payment of tuition fees – missed the cut off date – sufficiently motivated to complete studies – degree of hardship – emotional turmoil – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
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 23 January 2018 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 the applicant had not been in a registered course of study between the period 7 April 2017 to 9 October 2017.  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 15 April 2019 to give evidence and present arguments.   

4. 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

5. 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?

6. 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).

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

8. The evidence before the delegate came from the Provider Registration and International Student Management System (PRISM) indicating that the applicant had not been enrolled in a registered course from 7 April 2017 to 9 October 2017.  The applicant claims he never received his NOICC dated 27 November 2017, because it was sent to an old residential address and also, via email to an account to which he had lost the password and no longer used in any event.  The applicant said he no longer used his @hotmail email address and was instead using an @gmail address at the time the NOICC was sent.  At the date of the NOICC, he was living in a share house in Faulkner, Victoria and this is why he did not receive the written notice. 

9. The applicant applied for a review of the decision to the Administration Appeals Tribunal.  The applicant candidly admitted that he was not registered in a course of study between from 7 April 2017 to 9 October 2017, but gave evidence to the Tribunal of the circumstances in which the breach occurred.  For a few weeks before the enrolment was cancelled on 7 April 2017, the applicant was in ill health.  He was also paying his tuition fees on a weekly instalment plan.  He missed a few of these payments while unwell, during which time a firend took him to a medical centre in Coburg.  By the time he recovered and attended upon Cambridge College to recommence his accounting studies after this period of illness, he was informed by a staff member that he had missed the ‘cut off’ time for payment for his course fees.  The review applicant produced a medical certificate to the staff member and paid the full amount of the arrears owing for his tuition fees.  The staff member said that the review applicant could continue payment for his tuition on a weekly plan, but that he would have to commence his studies next term, because he had missed the cut off and the subjects he was required to do, would start later, after July. 

10. The review applicant said that based on the production of his medical certificate, the payment of his tuition fees and the staff member informing him he could recommence in October, he was satisfied that he had acted properly and was not in breach of his visa, because he was told he could recommence in the next term.  The review applicant did recommence his studies in October 2017. 

11. On the evidence before the Tribunal, namely, the applicant’s admission and PRISM records, the Tribunal finds that he was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202(2).

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. 

    Consideration of the discretion to cancel the visa

13. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant as to why the visa should not be cancelled, and matters in the Department’s Procedures Advice Manual (PAM3).

14. The applicant’s friend took him to the Coburg Medical Centre as he was very ill for a few weeks prior to April 2017.  The applicant said he suffered from inflammation of the lower intestine which prevented him from walking due to the severity of the infection.  This caused him to miss class attendance and some weekly payments for his tuition fees.

15. The applicant produced a medical certificate to Cambridge College, paid all outstanding tuition and was informed by the staff member he could recommence his studies in the next term, and further that he could continue to make payments for his tuition fees on a weekly basis.  The Tribunal accepts the applicant’s frank and candid evidence.  The Tribunal questioned the applicant’s ill health and his recollection of the timeframe applicable to his cancellation of enrolment and recommencement of studies repeatedly, yet the evidence remained consistent.  The Tribunal therefore finds the applicant to be a witness of credit. 

16. The applicant is studying a Bachelor of Accounting, he is a diligent student.  He completed an MBA in Pakistan before his study in Australia, but says that in Australia his study was not recognised as Masters level, because he had not previously completed an equivalent Bachelor degree in his home country, that is the reason for enrolling in a Bachelor of Accounting, because it is similar to the MBA and has similar subjects. 

17. The applicant has no compelling need to remain in Australia, apart from his desire to complete his studies in Australia.  His family are in Pakistan.  His parents live in Islamabad and his father, a banker, sold the family home to pay for the applicant’s studies in Australia.  The applicant said it would cause him embarrassment and difficulty in his community and it would be very hard on his parents, if he returned to Pakistan, without having completed his degree.  The applicant only has approximately 12 more months of study remaining. 

18. The applicant is one of four brothers and he engaged to a woman who is studying for her PhD.  They are all living in Pakistan.  He would also be a position of embarrassment with his fiancée and her family, if the applicant were to return home without having completed his studies.

19. The applicant informed the Tribunal that he very much just wants to complete his studies and return to his finance and family with his degree.  The reason he wants to complete his studies is that a foreign degree will also greatly assist with obtaining a better job in Pakistan, and a higher income, than if he solely relied on his MBA.     

20. There is no evidence before the Tribunal of any non compliance with other visa conditions and this proceeding also does not concern a subclass 457 visa.  The applicant informed the Tribunal that he has no reservations about returning to his home country and that the applicant is not claiming that there would be any consequential cancellations under s 140 of the Act.

21. There is no evidence before the Tribunal that there is any victim of domestic violence or that there would be any such impact.

22. There is no evidence before the Tribunal of any international obligations being breached by Australia as a result of the cancellation of the visa.

23. The Tribunal gives some weight to the fact that the applicant did not inform the department that he changed addresses from Pascoe Vale to Faulkner.  Had he done so, it is likely he would have received the NOICC. 

24. Considering the circumstances as a whole, the Tribunal is prepared to accept and place significant weight on the emotional turmoil the applicant would face if he returned to Pakistan without his degree, in circumstances where his family have sold the family home to fund his studies in Australia. 

25. The Tribunal also places significant weight on the fact that the circumstances surrounding the cancellation of the applicant’s visa, namely, for the non payment of tuition fees, were matters out of his control considering his was in ill health, struggling to walk, at the relevant time.  Furthermore, the Tribunal is satisfied that the applicant is sufficiently motivated to complete his studies, due to the emotional turmoil he would face not only from his own family, but prospective in-laws, if he returns to his own country without his degree. 

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

    DECISION

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

    Vanessa Plain
    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.