Hussain (Migration)

[2019] AATA 5655

Hussain (Migration) [2019] AATA 5655 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ibrar Hussain

CASE NUMBER:  1910685

HOME AFFAIRS REFERENCE(S):          BCC2019/278866

MEMBER:Vanessa Plain

DATE:19 August 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 19 August 2019 at 2:06pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – Advanced Diploma of Hospitality – genuine student – not enrolled in registered course for nine months – multiple course enrolments – mental health issues – credible witness – medical evidence provided – successful academic results – circumstances out of applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that it appeared that the primary purpose for holding a student visa is not for the purpose of study and that she is not, or is not likely to be, a genuine student. 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 13 August 2019 to give evidence and present arguments.

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. Under s.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 s.116(1)(fa)(i). 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.

   Does the ground for cancellation exist?

   s.116(1)(fa) - not a genuine student

6. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

8. The applicant is a 25 year-old male from Pakistan who arrived in Australia in 2013.  Prior to arriving in Australia, he completed high school in his home country.

9. The Tribunal has had regard to the PRISMS record and the applicant’s written response to the Notice of Intention to Consider Cancellation dated 22 March 2019 (NOICC), for the purpose of considering whether the applicant’s course(s) of study have been deferred or temporarily suspended due to the applicant’s conduct, his circumstances (other than compassionate or compelling circumstances), compelling circumstances which have now ceased to exist, or on the basis of evidence about the applicant’s circumstances which is fraudulent or misrepresents the applicant’s circumstances. 

10. The applicant provided a detailed written response to the NOICC on 4 April 2019.  In the Decision Record of the delegate, it is contended by the delegate that the applicant agreed there are grounds for cancellation and that the visa holder (the applicant) agrees there is non compliance with the visa. 

11. The Tribunal has examined the NOICC.  It is plain, upon a review of that documentation, that the applicant does not admit the ground for cancellation is made out, in that, the applicant does not state that he is not a genuine student.  In his evidence at hearing, the Tribunal asked the applicant directly whether he was ‘not a genuine student’ to which he did not agree.  The applicant attempted, several times and while clearly visibly distressed, to explain the circumstances which led to a brief period of non enrolment in studies.    

12. The applicant gave extensive viva voce evidence at the hearing as to each and every course of study that he has enrolled in and/or undertaken while in Australia, which was consistent with the PRISMS record and the NOICC response. 

13. In summary, the reasons the delegate formed the view that the applicant may not be a genuine student, was based on the following matters:

    (a)The applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa which was granted on 3 April 2017 onshore. When he applied for the visa his study plan was to commence a Bachelor of Business at AIH Higher Education

    (b)The Provider Registration and International Students  Management Systems (PRISMS) indicated the following matters:

    ●On 17 August 2017, the applicant’s enrolment in the Bachelor of Business course was cancelled by AIH Higher Education for “Non-commencement of studies” reason.

    ●On 19 October 2017, the applicant enrolled with Kent Institute Australia in a Bachelor of Business course which commenced on 6 November 2017 and was scheduled to conclude  on 6 November 2020.

    ●On 6 April 2018 Kent Institute Australia cancelled his enrolment in the Bachelor of Business course for “Student Notifies Cessation of Studies” reason.

    ●On 17 January 2019 the applicant enrolled with Pax Institute of Education Pty Ltd in an Advanced Diploma of Hospitality Management course which started on 14 January 2019 and is schedule to conclude on 13 October 2019.

    ●The applicant is currently studying an Advanced Diploma of Hospitality.

    ●Department records indicate that the applicant has not been enrolled in a registered course of study and has not undertaken any studies for over nine months between 6 April 2018 and 17 January 2019 while they held a Student visa and remained onshore.

    ●On 2 March 2018, the applicant lodged a Temporary Working (subclass 457) visa application. On 25 October 2018 he withdrew this visa application. On 19 January 2019 he enrolled in the Advanced Diploma of Hospitality Management after he did not undertake any studies for nine months and the subclass 457 visa application was withdrawn. This indicates he has no intention to study and this enrolment is likely to prolong his stay in Australia.

    ●The applicant does not hold an enrolment in a higher education level course as required by their Student (subclass 500) visa. His lack of progress over a substantial period of time, whilst nonetheless choosing to remain in Australia on a visa solely existing for his engagement in study, indicates that he are not a genuine student.

14. In his response to the NOICC and in extensive viva voce evidence at the hearing, the applicant explained the circumstances for his change from a Bachelors level of study to a vocational level, his period of non study and the reasons for his 457 visa application. 

15. In short, the applicant’s evidence may be summarised as follows:

    ·The applicant stated that his studies in Certificate III, IV and his earlier Diploma with was Imperial College in Melbourne, and he was living and studying in Melbourne. He was advised by his migration agent that he would be required to study in AIH Sydney instead of Melbourne, but that he ought not to worry, because a Melbourne campus was opening shortly.

    ·The applicant said he found it incredibly difficult to maintain a commitment to study properly in Sydney because he found it more difficulty and costly to travel, study and live in Sydney.  The applicant stated that this took a toll on his mental health and he suffered due to the extensive travel to and from Sydney on a weekly basis.  He contended that he became depressed, and he gave up the endeavour in Sydney and enrolled at Kent Institute Melbourne.

    ·The applicant gave evidence of suffering from depression at the time, which although the applicant not produce contemporaneous medical evidence of a diagnosis of depression, the applicant did produce at the hearing a medical certificate setting out the depression diagnosis and a current prescription of medication which the applicant is currently taking to manage his illness.

    ·The applicant sought the assistance of Dr Salman Soban and Dr HB Winfield, but his health continued to decline.  Although the applicant had taken up studies at Kent Institute, he found it too difficult to continue.

    ·During the applicant’s study at Kent Institute the applicant was working on a casual basis in a restaurant called Tajagri in Ringwood.  It was while undertaking this work that he realised he true passion lay in cooking.  The applicant decided that a cooking course or a hospitality course was better suited to him.  That assertion is substantiated by the applicant’s good academic results in his cooking and hospitality courses. 

    ·The applicant’s employer at the restaurant was so impressed with his work at the restaurant that he offered to sponsor the applicant for a 457 visa.  The applicant thought it would assist his health if he took a short break from study while working, however he was not aware that this would affect or may affect his status as a genuine student.  The applicant stated that his plan was to complete his studies, but it might take a little longer than expected.  He was also not aware that he had to maintain a valid COE during the process of his 457 visa application.  He was not advised of this by his migration agent.  He was distressed at the prospect of this fact being held against him by the Tribunal, as had he known that he must maintain his COE while the 457 visa application was pending, he would have done so, notwithstanding that he was struggling with his studies. 

    ·The applicant’s employer changed his mind about sponsoring the application for a 457 visa application, he said he no longer needed a new employee, so the applicant withdrew his 457 visa application. 

    ·Realising his 457 visa application would not eventuate caused the applicant to refocus on his studies.  He was taking medication for depression at the time, a claim which is consistent with the medication he was taking at the time of hearing.  The applicant tried to enrol in a bachelor degree course but was unsuccessful in obtaining a confirmation of enrolment due to his study gap.  He made enquiries of his migration agent and an education consultant.  Rather than enrol in a Bachelors degree, the applicant said he picked a lower level of study which was similar to his cookery studies, and proceeded to study an Advanced Diploma in Hospitality.  

16. It is clear, based on the above matters, that on 2 March 2018, the applicant lodged a temporary working (subclass 457) visa application. On 25 October 2018, he withdrew that visa application.  The Tribunal accepts the reason for having to withdraw that application was through no fault of the applicant’s.  On 19 January 2019, the applicant enrolled in the Advanced Diploma of Hospitality Management after he had not undertaken any studies for nine months and the subclass 457 visa application had been withdrawn.

17. However, the Tribunal has placed extensive weight on the candour of the Applicant’s viva voce evidence at the hearing, as to his explanation for the nine month study gap and on balance, the Tribunal cannot be satisfied that this period of study gap, couple with his mental health issues at the time, necessarily indicates that the applicant has no intention to study and that he is not a genuine student.

18. Rather, he is a student that has demonstrated successful academic results in a field of study that was consistent with the part time work he was undertaking.  The enrolment in his current course of study is not inconsistent with his cookery studies and may enhance his future job prospects when he returns home.  The applicant gave extensive evidence about being the eldest son in his family and having the responsibility of looking after his mother.  He stated that it would cause him great difficulty to go home in the circumstances where he cannot support his family due to not having completed his studies. 

19. The Tribunal has carefully weighed and considered the applicant’s evidence and the PRISMS record.  The Tribunal cannot, on balance, be satisfied that the aforementioned matters in the Delegate’s decision, are indicative of a non-genuine student.

20. On the contrary, based on the above, the Tribunal is satisfied that the applicant’s behaviour is, generally speaking, consistent with the behaviour of a student who genuinely wishes to pursue their studies and I give this behaviour considerable weight in favour of the applicant being a genuine student who wishes to study in Australia temporarily.

21. Further based on the above, the Tribunal cannot be satisfied that the applicant’s conduct is such that he has simply maintained an enrolment in a tertiary institution which could well, or potentially, be taken up by a genuine student.

22. The Tribunal further accepts that the reasons for the gaps in the applicant’s study history were not matters reasonably within his control and/or nor was there any bad faith on the part of the applicant associated with the reasons for his study gap. 

    On balance, the Tribunal is simply not persuaded, based on all the evidence before it, that the ground for cancellation of the visa is made out and the Tribunal so finds that the ground for cancellation is not established by the evidence before the Tribunal.

23. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Vanessa Plain
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.