Hasan (Migration)

[2019] AATA 3488

Hasan (Migration) [2019] AATA 3488 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Sakib Hasan

CASE NUMBER:  1837456

HOME AFFAIRS REFERENCE(S):          BCC2018/4195121

MEMBER:Vanessa Plain

DATE:30 July 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 30 July 2019 at 9:36am

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 – credible witness – diligent attitude to studies – satisfactory academic progress – reasons for non-compliance – compelling circumstances – parents’ health issues – severe financial difficulty – beyond applicant’s control – acted reasonably in the circumstances – degree of hardship – 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 13 December 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 was not enrolled in a registered course of study.  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 29 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nafisa Sheikh, the applicant’s partner.  

4. The applicant was 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. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 9 June 2015 for the purpose of undertaking an approved Higher Education level course of study at Deakin University, including:

   ·A Certificate IV in Business studies

   ·A Diploma of Accounting

   ·A Bachelor of Accounting

10. The applicant gave evidence that he did not quite complete the Certificate IV in Business Studies.  He stated that he successfully completed 7 of the 8 subjects required, but that he twice failed to pass the subject in economics.  At the time of his failure of this subject, his parents, with whom is close, being the eldest of his parents 3 children, were suffering financial hardship in their business at home in Bangladesh.  Given that his father was paying for the applicant’s tuition, he did not wish to burden him with his trouble in passing the subject.  Moreover, Deakin informed the application that if he wanted to take the subject again, for a third time, the applicant must re-enrol in 4 subjects again.  The applicant protested this requirement of the university, as he was under tremendous financial stress at the time, in circumstances where he had already passed 90% of the Certificate, it seemed grossly unfair, he said.  Due to his father’s change in financial circumstances, he had to withdraw from the course as he could not afford to pay for another 4 subjects, in circumstances where he had only budgeted to complete one more subject.

11. Due to Deakin’s refusal to allow the applicant to continue with his studies as outlined above, the applicant enrolled in a similar diploma at Stotts College, a Diploma of Accounting.

12. In 2017, the applicant experienced severe financial difficulty in paying for the balance of his course at Stotts College due to his parents experiencing severe health issues, requiring expensive treatment and a serious downturn in the financial viability of their business.  The Tribunal has had regard to contemporaneous documents produced by the applicant that speak to the financial and medical health issues faced by his parents at home.  In particular, the applicant’s father has signed a document, attested to by a Notary Public, speaking to the fact that his fisheries business was effectively destroyed by a natural weather phenomenon and as such, he was unable to financially pay for his son’s tuition in the circumstances.     

13. The applicant approached Stotts College immediately and informed them of his inability to pay his tuition fees.  He entered into a payment plan with Stotts College for his tuition fees, which he was able to meet for a period, but the stress of his parents ill health took a toll on the applicant, who himself was diagnosed depression as a result of the aforementioned factor and he defaulted with his payment plan for the tuition fees.     

14. The applicant’s enrolment at Stotts College was cancelled on 5 March 2018 and a Notice of Intention to Consider Cancellation (NOICC) of the visa was sent to the applicant on or around 15 November 2018.

15. At the hearing, the applicant candidly admitted that he was not enrolled in a registered course since 5 March 2018 and that he received the NOICC on or around 15 November 2018. 

16. The applicant gave detailed reasons, both orally and in writing, as the circumstances that led to the cessation of his studies, which have already been set out above, namely, his parents change in financial standing due to severe health problems meant that he could not pay his fees when they were due, despite taking prudent steps to enter into payment plans, obtaining a part time job and appealing the decisions of both Stotts College and Deakin to cancel his enrolments.       

17. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course as at 5 March 2018.  Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

18. 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.

19. 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’

    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 

20. As set out above, the applicant has demonstrated a diligent attitude to his studies and successfully completed 90% of his course before stumbling at the last subject.  Upon undertaking a similar course at a different education provider, he has demonstrated satisfactory progress, the only matter hampering that progress was the inability to pay for his tuition fees which was occasioned by unfortunate circumstances which befell his parents through no fault of their own, or the applicant’s. 

21. The applicant gave evidence that he wishes to complete his studies and return home to work as an accountant, or work with his father in the family business.  The applicant believes the skills he would acquire as an accountant would be useful in assisting his family re-establish their business. 

22. The applicant’s parents are in Bangladesh.  They have serious health issues as demonstrated by the medical documents produced by the applicant.  The applicant is the eldest of 3 sons and it is his responsibility as such, to look after his parents and indeed the family when his parents enter older age.  It is the applicant’s wish to return home having completed studies, for it would be someone shameful and wasteful to return home without having so completed studies.  The applicant does not have children in Australia or any other dependants.  The applicant is not working presently and lives in a house in Melbourne with his girlfriend, who supports him financially, together with his uncle.  Therefore the applicant says the financial issues that brought about the failure to pay tuition fees have been alleviated.    

23. On the basis of the above, I therefore find that the applicant has no compelling need to remain in Australia permanently and that he has demonstrated his primary purpose as being to study.  I give these factors some weight towards the visa not being cancelled.     

    The extent of compliance with visa conditions

24. The applicant has not complied with condition 8202(2).  However, as set out above, I find that the applicant had a compelling reason for the breach, namely, that the circumstances that led to the breach were not reasonably within his control, as they were brought about by an act of God which befell his parents’ business. Whilst I find that the applicant did breach the condition, given the circumstances of the breach, I give this no weight towards the visa being cancelled. 

25. Further, there is no evidence of any breach of other visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

26. The applicant gave compelling and credible evidence of the emotional and psychological hardship that he would endure if he had to return home in circumstances without having completed studies.  The applicant stated that in a third world country like Bangladesh, if he returned home at his age, he would not be accepted into a Bachelor course in a Bangladeshi university, because culturally that is unacceptable, unlike in Australia.  The witness also gave evidence that this was her understanding culturally of how universities in Bangladesh operate.  . 

27. The Tribunal therefore accepts that the cancellation has led to some personal detriment for the applicant, which has undoubtedly been exacerbated due to the anguish he has experienced given his parents’ serious health issues and the devastation of the family business, which has exposed the family to a complete lack of financial security.

28. The Tribunal further accepts that the detriment would be compounded by the continuation of the cancellation and the Tribunal therefore gives this some weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

29. The circumstances that led to the cancellation of the applicant’s visa are compelling and have been described by the applicant in writing, in his evidence at hearing, by the witnesses’ evidence at hearing and by the detailed and succinct written submissions of the applicant’s migration agent.  The written submissions, to which I have had regard, cite relevant facts and law relating to circumstances surrounding the cancellation being outside the reasonable control of the applicant.

30. As outlined above, I have had regard to the circumstances surrounding the cancellation and I find that it cannot sensibly be suggested that the above matters did not contribute significantly towards the applicant’s breach of his visa condition.  These are matters not within the reasonable control of the applicant and on that basis, it cannot be suggested that the applicant was reasonably in control of the facts and circumstances that contributed to the breach of his visa condition.  Further, there is no evidence that the applicant has acted imprudently, or attempted to avoid his studies.  On the contrary, the Tribunal commends the applicant for the candour with which he has given evidence about matters which clearly have caused him great distress.    

31. The Tribunal therefore gives the above evidence significant weight towards the visa not being cancelled. 

    Past and present behaviour of the visa holder towards the Department

32. The applicant has conducted himself in good faith in his dealings with the Department.  This is demonstrated by the fact that he responded immediately and frankly to the NOICC and gave evidence at the hearing, consistent with his response to the Department and with contemporaneous medical and financial documents produced by him.  I give this significant weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

33. Not applicable.

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

34. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to complete any study before returning home to Bangladesh, which would be a compete waste financially.  Given the circumstances set out above, this would be manifestly unfair and I give this some weight in favour of the visa not being cancelled. 

    Whether 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

35. Not applicable.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

36. Not applicable.

    Any other relevant matters

37. The applicant again re-restated the importance of being the eldest son in his family and with that, the expectation that he will be able to look after his parents, which will be next to impossible without obtaining a qualification before returning home. 

38. As above, it is clear that the breach does not reveal any bad faith on the part of the applicant and was occasioned by matters not reasonably within his control.  It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

40. 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.