Hussain (Migration)

[2020] AATA 3459

Hussain (Migration) [2020] AATA 3459 (17 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Amer Hussain

CASE NUMBER:  1930382

HOME AFFAIRS REFERENCE(S):          BCC2019/3199727

MEMBER:Amanda Upton

DATE:17 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 17 July 2020 at 11:39am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – not enrolled in a registered course – consideration of discretion – depression – not beyond applicant’s control – decision under review affirmed

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 25 October 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 the delegate found that he applicant has not been enrolled in a registered course of study at the level for which the visa had been granted and had therefore breached subclause 8202(2)(b). 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 19 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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 affirmed.

   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 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).

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

9. The applicant was granted his student visa for the purpose of studying a Master of Professional; Accounting, The course was due for commencement on 33 July 2018 and to conclude on 15 September 2020. The applicant’s enrolment in this course was cancelled by the education provider due to the non-commencement of studies on 24 August 2018.

10. The applicant then obtained an enrolment in a Diploma of Business on 2 November 2018. This course was not at the same level or higher than the course for which the applicant’s visa was granted.  He was therefore in breach of subclause (2)(b) of condition 8202.

11. The applicant conceded to the Tribunal that he was in breach of his visa condition and that there was a ground for the cancellation of the visa.

12. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

13. 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

    14.The applicant told the Tribunal that he had arrived in Australia a month before the enrolment in his course. At the time his father was ill and as a result the applicant became depressed as a result. He considered returning to India but as his father started to get better he decided to stay in Australia.

    15.The applicant told the Tribunal that he had depression as a result of his father’s illness and perhaps due to the change in weather as he found it quite cold when he arrived.

    16.The applicant did not seek a deferral of his studies and attributes this to a lack of guidance. He did not attempt to make contact with the education provider. The applicant conceded that he knew that a condition of his visa was that he had to study at a level required by the visa however said that he could not go to college due to his depression.

    17.The applicant did not go home as he thought that his parents would be worried and he wanted to be something. He did not go back to studying at the required level as he claimed that and agent mislead him about what course he should re-enrol in, he also told the Tribunal that the agent told him not to do his Master level course as he was too sick

    18.Although the applicant claims that he depression was bad enough that it prevented him from studying, he did not see a doctor instead said he relied on friends who gave him assistance and remained at home not going anywhere. Given the lack of objective evidence as to the applicant’s condition and effect on him, the Tribunal can place little weight the assertions made by the applicant as to his studies being affected by a medical condition.

    19.The Tribunal finds it unsatisfactory that the applicant relied as he did upon an education agent and did not take responsibility himself for ensuring compliance with his visa conditions. The Tribunal accepts that applicants rely on education agents for advice however does not consider it acceptable that an applicant would do so without himself independently being aware of and actively ensuring compliance with conditions It is expected that visa holders ensure that they are aware of and comply with their obligations. The Tribunal is unable to conclude that the applicant was suffering a condition that would have not enabled him to comply or complete the course at the level for which he was granted the visa.

    20.The Tribunal does not consider that the circumstances leading up to the visa cancellation involved matters that were beyond the control of the applicant. The applicant could have taken steps to mitigate the issue of compliance either by deferring his studies or making application to change his visa conditions, He did neither of those things. The Tribunal gives the circumstances under which the cancellation arose, significant weight in favour of cancelling the visa.

    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 applicant came to Australia for the purpose of studying; he claims no other reason to remain in Australia other than to continue to study.

    The extent of compliance with visa conditions

    22.The applicant failed to comply with the condition of his visa for a period of over 12 months. The Tribunal considers this to be a significant period of time to be in breach of the visa condition.

    23.The Tribunal takes into account the way in which the non-compliance arose and considers it to be serious. The Tribunal gives this consideration weight in favour of cancelling the visa.

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

    24.The applicant claimed no financial hardship would result from his being cancelled although considered the money that his parents had spent up to this point in time and considered it may result in him not being able to study in India.

    25.The applicant expressed concern about his parents being emotionally affected if his visa was to be cancelled and he no longer able to study. He told the Tribunal that for him to study was a gift for his father and that he would be in trouble with his parents if he had to go back.

    26.The applicant told the Tribunal that he would be able to continue to study in India if he was required to return there.

    27.The Tribunal accepts that a cancellation of a visa results in opportunities lost and disappointment. It also accepts that there may be a financial loss for an applicant and a delay in achieving what they may have wanted to achieve in Australia if a visa is cancelled.  However, it is expected that there will be consequences to a cancellation. As such, the Tribunal gives minimal weight to the considerations raised by the applicant.

    Past and present behaviour of the visa holder towards the department

    28.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

    29.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

    30.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.

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

    32.The Tribunal sees these as natural consequences of the cancellation of a visa. The applicant retains his passport and is able to return to India. The applicant raised no reason that he would be unable to return to India.

    33.The Tribunal gives this factor minimal weight in favour of the applicant.

    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.

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

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Class TU 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.