HUSSAIN AMJAD (Migration) - [2019] AATA 5482

HUSSAIN AMJAD (Migration) [2019] AATA 5482 (25 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  HUSSAIN AMJAD HUSSAIN AMJAD
CASE NUMBER:  1822540
HOME AFFAIRS REFERENCE(S):          BCC2018/1034995
MEMBER:T. Quinn
DATE:25 November 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 500 (Student) visa.

Statement made on 25 November 2019 at 12:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of stay in Australia – medical condition causing severe pain – beyond applicant’s control – significant breach – visa stay period expired – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 27 July 2018 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
The applicant has been in Australia since 27 September 2016, having been granted the current visa on 7 September 2016.[1] The applicant is from India and initially came to Australia after completion of his Pharmacy Degree in India in 2016, with the intention to study English and then a Masters in Public Health. The applicant gave evidence that his goal is to pursue permanent residency in Australia and his course of study has now changed as he submitted a Masters of Public Health will not give him permanent residency and he just wanted to do a course which will lead him to permanent residency and cookery will do that. The applicant is therefore now pursuing a cookery qualification.
[1] See delegate’s decision.
A Notice of Intention to Consider Cancellation dated 25 May 2018 (‘NOICC’) was sent to the applicant. The applicant responded to the NOICC on 1 June 2018
On 27 July 2018, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. 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. [2] The applicant did not comply with this condition of his visa from 17 August 2017 to 27 July 2018.[3] A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
[2] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
[3] See delegate’s decision.
On 4 August 2018, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.
The applicant appeared before the Tribunal on 14 October 2019 to give evidence and present arguments.
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.
The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
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 Master of Public Health. This enrolment ceased on 17 August 2017 and the applicant was not enrolled in a full time registered course of study from that date until 27 July 2018.
At the hearing, the applicant acknowledged and accepted that there are grounds for cancellation.
For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be 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. 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’.
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
The applicant arrived in Australia at the age of 31. The applicant then commenced an English course. There is significant material on file in relation to the issues faced by the applicant in relation to this English course. The applicant’s course provider issued a Notice of Intention to Report for poor attendance on 13 July 2017; however, the applicant has supplied a number of medical certificates indicating he had an inguinal hernia which was causing him to suffer intense pain in July 2017. The medical certificates indicated the applicant required surgery, however, the applicant returned to India in March 2017 for three to four weeks and was given a number of herbal medicines which were to be taken over a lengthy period of time and he states they have helped him but it has taken considerable time. He has not undertaken the recommended surgical procedure.
It appears to the Tribunal that the applicant never completed his English courses and was therefore unable to commence his Bachelor course. It appears that the applicant was not meeting his attendance requirements for his English course and his enrolment was cancelled on this basis. The Tribunal acknowledges the correspondence between the applicant and his course provider in relation to the applicant’s medical problems and the lack of compassion the course provider offered the applicant in its correspondence. The Tribunal also acknowledges that the applicant sought deferral and refunds and was not offered much in the way of accommodation from his course provider. The Tribunal also accepts that the applicant has suffered from severe pain resulting from an inguinal hernia.
The Tribunal has, however, been very concerned about a number of inconsistencies in the applicant’s evidence, the applicant’s reliability as a witness and whether he was being forthright in his submissions. For instance, the applicant submitted that he had achieved the requisite IELTS score of 6.5 for Higher Education Studies, however, the certificate he supplied in this regard was not the IELTS score sheet which the Tribunal had requested of him. The medical certificate supplied by the applicant indicated the inguinal hernia surgery would require 40 days bed rest but the applicant gave oral evidence that it would have required 6-8 months of bed rest. The applicant also gave oral evidence that he was attacked by 12 junkies on 16 June 2018 and his cousin’s car was stolen, he then filed a video of a news report discussing an incident which did not refer to the date or identify any of the victims and so provides no weight to the applicant’s submissions. The Tribunal requested a copy of the report made to the police in this regard, the applicant said he did not have such copy and has provided a document indicating the police have refused to supply such copy to him. In the copies of correspondence with the police filed by the applicant with the Tribunal, the applicant states the incident occurred 16 June 2019. This date would render the incident irrelevant so far as the Tribunal’s assessment of the applicant’s visa cancellation is concerned. It is not clear which date (2018 or 2019) is correct and there is no identifying corroborating evidence that the said incident occurred.
The applicant’s evidence is that he now wishes to pursue a cookery course in order to obtain permanent residency, a study and career pathway totally unrelated to his previous study history.
The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia. Further, the Tribunal notes that the applicant has options to complete further studies in India if he chooses.
The Tribunal notes that the nature of the student visa programme is necessarily temporary and the Tribunal has concerns about the applicant’s true intentions. The Tribunal considers the applicant does not have any compelling need to remain in Australia as he could study in his home country. The Tribunal gives weight in favour of cancelling the applicant’s visa in this regard.
Circumstances in which ground of cancellation arose
The applicant’s evidence at hearing has been outlined above. The applicant began suffering severe pain in July 2017 from an inguinal hernia. He has supplied medical documents to corroborate this and it clearly impacted his ability to attend his English classes which had flow-on effects in terms of his proposed study. This health issue was beyond the applicant’s control when it occurred and whilst it was open to him to take a different course of action (such as immediate surgery), the Tribunal acknowledges the applicant’s submissions in relation to his financial situation and wishing to avoid breaching his enrolment condition and/or seeking deferral and risking cancellation of his visa. The Tribunal also acknowledges that the applicant did return to his home country to seek treatment which he felt would be the most effective within his practical and financial means.
The Tribunal gives considerable weight against cancelling the applicant’s visa in this regard.
Extent of compliance with visa conditions
The Tribunal notes the applicant’s evidence that he has otherwise complied with student visa conditions. However, the applicant’s breach of the condition of the current visa is extensive, being approximately eleven months. The Tribunal considers the eleven month breach a significant breach and gives 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 became emotional at the hearing when asked about this factor and submitted that if his visa is cancelled, he will lose all hope. He explained that his health problems were the toughest time of his life, very challenging (he has supplied photos where he is receiving intravenous medication in hospital and clearly unwell in contrast to being fit and healthy at the time of hearing) and that he wishes to prove himself and gain better knowledge in Australia and make his family proud.
The Tribunal accepts that the cancellation of a visa is disappointing. It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.
The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.
The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition. Whilst appreciating the hardship the applicant and her family may face regarding a cancelled visa, it appears to be primarily emotional and, given his change in study pathway, does not appear to be likely to impact greatly on his future career upon return to India. Further, it does not outweigh the breach and whilst the Tribunal empathises with the applicant, the Tribunal gives these reasons limited weight in its considerations.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department. The Tribunal gives 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 current 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.
The Tribunal gives 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.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations. The Tribunal places no weight on this in favour of or against the applicant.
Any other relevant matters
The applicant’s current visa stay period has now expired and he will have to apply for a further student visa. In this regard, his evidence in this proceeding about seeking permanent residency will be relevant as will his significant downgrade in level of education and change in study and career pathway.
CONCLUSION
The Tribunal considers the factors for and against cancelling the applicant’s visa are closely balanced in this case. Ultimately, the Tribunal deems it appropriate to give the benefit of the doubt to the applicant, particularly given the health problems and resultant pain he faced in 2017. Should the applicant make a further student visa application on the basis of an intention to undertake study on a student visa that is contrary to the evidence given in connection with this case, it will clearly be relevant to any assessment by the Department.
Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
T. Quinn
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.