Hassan (Migration) - [2024] ARTA 644

HASSAN (MIGRATION) [2024] ARTA 644 (16 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Syed Tahir Hassan
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2318463

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 16 December 2024
Decision:The Tribunal affirms the decision to cancel the applicant's Class TU visa.

Statement made on 16 December 2024 at 10:12am
CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant had not been enrolled in a registered course of study – victim of an assault – spent considerable time working onshore – mental health condition – breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant was granted a Subclass 500 (Student) visa (‘the visa’) on 17 December 2022.
The expiry date of the applicant’s student visa was 14 March 2024, providing for more than a year during which the applicant would be permitted to reside in Australia for the purposes of full-time study.[1]
[1] See delegate’s decision.
On 13 November 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s visa the basis that the applicant had failed to comply with a condition of their visa.[2] In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full-time registered course.[3] The applicant did not comply with this condition of their visa from 27 February 2023 until 31 October 2023.[4]
[2]under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
[3] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
[4]See delegate’s decision, confirmations of enrolment filed by the applicant in the Department file and PRISMS search.
On 14 November 2023, the applicant applied to this Tribunal for a review of the delegate’s decision to cancel the visa.[5]
[5]Pursuant to sections 338(2) and 347 of the Act. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant was listed to appear before the Tribunal for a video hearing on 4 December 2024, however, shortly before hearing the applicant indicated they has requested an interpreter in the Hindi and English languages, when in fact they required an interpreter in the Urdu and English languages. An interpreter in the Urdu language could not be secured at such late notice and the matter was adjourned to the following day. The applicant appeared before the Tribunal via video hearing on 5 December 2024 to give evidence and present arguments. The applicant was represented in relation to the review and their representative also attended the hearing of 5 December 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, quick, accessible and responsive and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be affirmed. My reasons follow.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.
Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:
a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);
b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and
c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course of study or training.
The applicant was enrolled in a Diploma of Building and Construction (Building) which was cancelled for non-commencement of studies in April 2020, he then enrolled in another Diploma of Building and Construction (Building) which was cancelled for nonpayment of fees in February 2022, the applicant was enrolled in a third Diploma of Building and Construction (Building) which was also cancelled for nonpayment of fees on 27 February 2023. The applicant was not enrolled in a full-time registered course of study from that date until 1 November 2023 when he enrolled in an Advanced Diploma of Civil Construction Design.
The applicant has not disputed at any time that he has had a period of non-enrolment in breach of his visa conditions. I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.
Timeline of study and enrolment history
The applicant first arrived in Australia in 2011 on a student visa. Since that time he has successfully completed:
a.a Certificate IV in Frontline Management in 2011;
b.an Advanced Diploma of Management in 2012;
c.a Certificate IV in Accounting in 2013;
d.a Bachelor of Business (Accounting) in 2016; and
e.part of a Graduate Diploma of Management in 2019.
The applicant was provided corroborating documents for this course progress, and I commend him in this regard, his study history from 2011-2019 is very much to his credit.
The applicant then enrolled in a Diploma of Building and Construction (Building) which was cancelled for non-commencement of studies in April 2020.
The applicant then enrolled in another Diploma of Building and Construction (Building) which was cancelled for nonpayment of fees in February 2022.
The applicant then enrolled in a third Diploma of Building and Construction (Building) which was also cancelled for nonpayment of fees on 27 February 2023.
On 30 October 2023, the applicant was sent a notice of intention to consider cancellation (‘NOICC’).
On 1 November 2023, the applicant enrolled in an Advanced Diploma of Civil Construction Design.
On 3 November 2023, the applicant responded to the NOICC including filing the confirmation of enrolment for the Advanced Diploma of Civil Construction Design which had been created two day prior.
The applicant’s enrolment in the Advanced Diploma of Civil Construction Design was cancelled when his visa was cancelled as he lost his study rights on the bridging visa he has held since the visa was cancelled.
Consideration of discretion to cancel the visa
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. I have had regard to the circumstances of this case, including matters raised by the applicant and her representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
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
I refer to and repeat paragraphs 14-23 above.
The applicant gave evidence at hearing that he was working in security before returning to Pakistan in 2022. After his trip to Pakistan, the applicant worked in casual delivery part time.
The applicant has filed detailed submissions and supporting medical evidence for the following:
a.He suffered from an internal skin condition requiring surgery in 2014 which re-occurred in mid-February 2018, and he returned to Pakistan for a second surgery;
b.He was the victim of an assault in October 2018 during his work as a security guard;
c.He was referred by a GP to a psychologist, Mr Randolph Monterio, in October 2019 for ‘opinion and management possible PTSD had Assault trauma last year November since than symptom of Anxiety/panic attack disturbed sleep not functioning avoiding crown with low mood K1-32’;
d.Between 19-24 August 2022, he was admitted to hospital with low blood platelets and diagnosed with dengue fever. The hospital documents for this admission refer to the ‘overall condition’ as ‘quite benign’;
e.His father suffered a minor paralysis stroke in October 2022;
The applicant submits that he has had major mental health issues since his assault in October 2018. The Tribunal gave him a further week after his hearing to provide corroborating medical or psychological evidence of this, most particularly from Mr Monterio. No post hearing documents have been filed.
I put to the applicant that he had clearly managed to progress with his Graduate Diploma of Management between September 2018 until August 2019 as this course was listed as ‘finished’ in his PRISMS[6] record, the applicant gave evidence that he had been living in Hobart when he was studying that course, not in Melbourne where the assault had occurred.
[6] See Attachment.
I do not consider this evidence before me provides an adequate account of the applicant’s psychological or emotional condition from February 2023-October 2023 (his recorded visa breach period) such that his failure to maintain his enrolment onshore and his failure to re-enrol in a course until November 2023 is explained.
Sickness of an individual or their family members, challenging personal events and other unkind life stressors must be dealt with by everyone at some point in their life. Non-Australian citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they have to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the applicant. There is no psychological evidence, beyond the evidence of the applicant himself, that provides an adequate account of his mental state during his time of breaching his student visa. I am not satisfied on the evidence before me that the applicant was suffering from a clinically diagnosable mental health condition that put his suffering into a category that may have been a cause of him remaining unenrolled for a period of 8 months. In this regard, I note the applicant’s evidence at hearing that he had been working onshore prior to his visa cancellation.
The applicant gave evidence about his work history onshore which concerns me. The applicant has spent considerable time working onshore which I consider is not consistent with his submissions that he was unable to study.
I consider if an individual is residing onshore on the basis of student visa, such study should take priority over work. There are financial requirements before such visas are granted. It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, in breach of the conditions of a student visa upon which their right to reside is based.
I empathise with the applicant in relation to the aforementioned challenges he has faced. However, I find it difficult to accept that the applicant was finding his personal circumstances and mental health too challenging to study but that he was still able to work.
The applicant has filed extensive submissions referring to discussions with his father about his future career in Pakistan and the decision that he no longer wishes to work in Accounting, the field in which he has spent four years studying in Australia, including obtaining a Bachelor level qualification. The applicant submits that he has agreed with his father to pursue a career in building construction and design as there is more demand in this field than in accounting. When asked at hearing what business his father runs, the applicant gave evidence that his father is a wholesale shoe distributor.
The applicant claims that after 13 years onshore, he now wishes to change his field of study and career to Building construction and design and that he needs to obtain qualifications in Australia in order to pursue that career.
I am not persuaded by these submissions.
I understand that a visa cancellation can be disappointing for visa holders and their families, but I do not consider this constitutes a compelling need to remain in Australia.
I have considered all the evidence before me and do not consider the applicant has a compelling need to remain in Australia. I place some weight in favour of cancelling the applicant’s visa in this regard.
Circumstances in which ground of cancellation arose
I refer to and repeat paragraphs 25-38 above.
I accept that the applicant has had an internal skin infection requiring surgery in 2014 and 2018 and that he was the victim of an assault in Australia in October 2018, that his father suffered a minor stroke in 2022 and that he was hospitalised with dengue fever for three to five days in August 2022. I also accept the submission that his father’s ill health impacted his financial means.
At hearing, evidence was given that the applicant had been in a relationship with a woman in Pakistan which also ended in 2022.
I consider the matters described in the immediately preceding two paragraphs were out of the applicant’s control and deeply empathise with him in this regard. I have made allowance for these factors in coming to my conclusions in this case.
However, the applicant’s breach period was during 2023.
I empathise with the applicant in relation to his suffering. However, the option to return to Pakistan to avoid breaching his visa conditions was open to the applicant at all times. Instead, he failed to resume any study at all for eight months, was issued with a NOICC and his visa was subsequently cancelled. This is not the conduct one would expect of a genuine student who takes their responsibilities in residing onshore on the basis of a student visa seriously.
I acknowledge the applicant’s evidence at hearing about his mental ill health and the referral to a psychologist dated 26 October 2019. I acknowledge that mental ill health can feel out of an individual’s control to a significant extent. However, I consider that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same. It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.
I place some weight in favour of cancelling the applicant’s visa in this regard.
Extent of compliance with visa conditions
The applicant has otherwise complied with student visa conditions. However, the applicant’s breach of the condition of the visa is significant, being eight months. I consider the eight month breach a significant breach and give weight in favour of cancelling the applicant’s visa in this regard.
The degree of hardship that may be caused to the visa holder and any family members
The applicant gave evidence at hearing and submissions have been filed on his behalf about how disappointing it will be for him and his parents if he has to return to Pakistan. His representative referred at hearing to the cost of his Bachelor qualification. He gave evidence that he if he can complete building and construction courses then he could seek work in that field in Pakistan.
I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study.
I recognise that the hardship is felt by family members who may also feel let down and disappointed.
I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa. Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and I give these reasons limited weight in my considerations.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department. I give some weight against cancelling the applicant’s visa in this regard.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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
If the visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration in favour of the applicant because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
I give this consideration neutral weight.
Other matters
I note the applicant’s representative’s written and oral submissions. These have been carefully considered in coming to my conclusions in this case.
CONCLUSION
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant's Class TU visa.
Date(s) of hearing:  4 and 5 December 2024
Representative for the Applicant:             Mr Harpal Singh Bajwa (MARN: 0955800)
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.
ATTACHMENT – PRISMS search
‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[7]
[7]Regulation 1.03 of the Regulations.
All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[8] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[9] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.
[8]Section 10 of the ESOS Act.
[9]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).