Haseeb (Migration)

[2020] AATA 170

Haseeb (Migration) [2020] AATA 170 (17 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdullah Haseeb

CASE NUMBER:  1932163

HOME AFFAIRS REFERENCE(S):           BCC2019/3240382

MEMBER:Amanda Upton

DATE:17 January 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 17 January 2020 at 11:29am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – not being enrolled in a course at Master level – health issues – depression – honest and credible – applicant attempted to rectify the cancellation – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.    The delegate cancelled the visa on the basis that applicant had not complied with condition 8202(2)(a)&(b) in that he had not maintained enrolment in a registered course at the same level or higher than, the registered course in relation to which the visa was granted. 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 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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 full time registered course: 8202(2)(a)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

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

7.    In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course at the same level or higher than, the registered course in relation to which the visa was granted.

8.    The applicant arrived in Australia in November 2017. He commenced studying in the first week of January 2018. His enrolment was cancelled on 11 April 2018 due to non-payment of fees. The applicant then obtained enrolment in a Diploma of Early Childhood and Care on 4 October 2018. The enrolment in this course was cancelled on 23 October 2019 and the applicant has not been enrolled in any other registered course from this date.

9.    The applicant conceded that he was in breach of his visa condition due to not being enrolled in a course at Master level and also due to non-enrolment since 23 October 2019.

10.On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course at the same level or higher than, the registered course in relation to which the visa was granted from 11 April 2018 and then had failed to be enrolled in a registered course for two separate periods from 11 April 2018 to 4 October 2019 and then 23 October 2-19 to currently. Accordingly, the applicant has not complied with condition 8202(2)(a).

Consideration of the discretion to cancel the visa

11.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’.

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

12.The applicant started his Masters in the first week of January 2018 but he left before the end of first semester. He told the Tribunal started experiencing health issues depression which he attributed to home sickness. It was his first time away from home and he found it difficult as he did not know anyone and had not been to Australia before.

13.As a result of his health concerns he spoke to a teacher at his school who tried to assist but ultimately he ended up seeing a psychologist for 2 months to try to address how he was feeling. He indicated that he lost weight and was unable to do very much properly and had difficulty concentrating. He indicated that he did not find the psychologist helpful but started to feel better as he began to adjust to being in Australia, he was introduced to some friends of a family member and remains to be friends with them. He said that this assisted him in adjusting to being away from home.

14.The applicant did not provide any medical evidence as to his attendance at the psychologist however the Tribunal found him to be honest and credible in his description of the circumstances leading up to the cancellation of his course enrolment and subsequent circumstances of attempting to study to date.

15.The applicant indicates that he contacted the education provider about his health issue in February 2018 and that they told him he was no longer able to defer the studies because there was a specific date to do so and that date had passed.

16.The applicant indicated that he started to feel better around July 2018 and consequently sought the help of a consultant to attempt to recommence studying. After discussion with and on the advice of that consultant he was enrolled in October 2018 in a Diploma of Early Childhood and Care. The consultant did not inform him of the change in course level constituting a breach of his visa condition.

17.The Tribunal had concerns about the significant change in subject from hospitality to childcare however the applicant indicated that he had given it thought and chose childcare as he believed that there was employment opportunity in that area. He indicates that he enjoys working with children through his placements during the course so far.

18.The applicant had his enrolment in the Diploma cancelled on 23 October 2019 due to non-payment of fees. When asked about this he told the Tribunal that he was unaware of the cancellation until he received notification of the Delegate’s decision as to his visa cancellation on 6 November 2019. He told the Tribunal that he had for all intents and purposes completed the subjects he was doing at the time of the cancellation save for the submission of two assignments.

19.The applicant indicated that he contacted the education provider and attempted to rectify the cancellation however by that time his visa was cancelled and consequently they would not re-enrol him until he had an appropriate visa. The applicant subsequently obtained study rights on his bridging visa and has since made attempts to further enrol in the Diploma of Early Childhood and Care so that he can complete the course. He indicated that he was waiting for his CoE with respect to his enrolment in that course.

20.The Tribunal found the applicant to be genuine and credible in his explanation.

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

21.The purpose of the applicant’s travel to Australia was to complete his Master of International Hotel Management and although no longer completing this specific course, his purpose of being in Australia remains to be to study.

22.There was no other purpose of travel and the only reason for the applicant to remain in Australia is to study. He no compelling need otherwise to travel or remain in Australia.

23.Given that the applicant did enrol in a further course and intends to continue to study albeit not at the level required by the visa, I give this factor some weight in favour of the applicant.

The extent of compliance with visa conditions

24.The applicant has failed to comply with his visa condition for a reasonably significant period of time. Both for non-enrolment and also for being enrolled in a course at a level lower than that for which the visa was granted.

25.The applicant states that he was unaware that he was required to inform the Department of the change in course level and was not informed by the consultant who assisted him when he enrolled in the Diploma of Early Childhood Education and Care.

26.There is nothing before the Tribunal to indicate that the applicant has not complied with any other conditions on his visa.

27.The Tribunal expects that applicants adhere to the conditions to their visa and as such gives the factor only minimal weight in favour of the applicant particularly when weighed against the extent of non-compliance with respect to enrolment in a registered course.

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

28.The applicant indicated that the hardship he would suffer would primarily be the shame for him and the disappointment of his parents and family. He is the oldest sibling and as such the others look to him for

29.He indicated that his parents had spent a lot of money for him to study in Australia and the loss of the money for no purpose, if he were not to finish his studies, would be felt more by his family as his father also supports the applicant’s uncle’s family due to him passing away in August 2018

30.The Tribunal accepts generally, that the cancellation of a visa results in opportunities lost and disappointment. It also accepts that there is potentially a financial loss for the applicant. 

31.If the visa is cancelled, the applicant may not be able to continue with the course of study for which he proposes to reenrol in. The applicant has is now aware that the course he proposes to re-enrol in requires a student visa entitling him to study at vocational level.

32.If the current visa is cancelled this may impact on the applicant’s ability to obtain such a visa and complete his current course. The Tribunal give this factor some weight in favour of the applicant.

Past and present behaviour of the visa holder 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 in favour of the applicant.        

Whether there would be consequential cancellations under s.140

34.There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

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

35.If the visa is cancelled, the applicant will become a non-lawful citizen and his ability to apply for other visas would be limited. Whilst unlikely in this instance, he could be detained until he made arrangements to leave the country.

36.The applicant would also be section 48 barred and may not meet the requirement for certain visas for three years.

37.The Tribunal sees these as natural consequences of the cancellation of a visa however in this particular instance the Tribunal places more weight on the circumstances in which the breach has occurred and the applicant’s subsequent apparent ongoing commitment  to study. The Tribunal accepts that the applicant genuinely wishes to complete his course and has made attempts to do so. The severity of the consequences for the applicant is high, in that he won’t be able to complete his course of study, and as such the Tribunal places more weight in favour of not cancelling the visa.

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.

38.The applicant has provided no reasons for being unable to return to India as such the Tribunal affords this factor no weight.

39.Considering the circumstances as a whole, particularly the presentation of the applicant as genuine and credible, 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 500 (Student) visa.

Amanda Upton
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

(a)a Defence student; or

(b)     a Foreign Affairs student; or

(c)      a secondary exchange student.

(2) A holder not covered by subclause (1):

(a)       must be enrolled in a full time registered course; and

(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

(a)      is enrolled in a course at the Australian Qualifications Framework level 10; and

(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.