Hussain (Migration)

[2022] AATA 655

Hussain (Migration) [2022] AATA 655 (23 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Amer Hussain

REPRESENTATIVE:  Mr Muhammad Rafi (MARN: 1700370)

CASE NUMBER:  2105392

HOME AFFAIRS REFERENCE(S):          BCC2019/3199727

MEMBER:Wendy Banfield

DATE:23 March 2022

PLACE OF DECISION:  Canberra

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 23 March 2022 at 4:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment at lower level than required by visa condition – discretion to cancel visa – study and personal difficulties – non-commencement of higher-level course and enrolment at lower level – now re-enrolled at original level – sincere evidence and submissions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulation 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a course of study at AQF level 9 or higher, as required by the conditions of his visa. 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 matter is before the Tribunal because of a remittal by consent from the Federal Circuit Court for reconsideration.

4. The applicant appeared before the Tribunal on 8 and 15 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (India) and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. 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

7. 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 (Cth) (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?

8. 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)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(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

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

9. In the present case, the applicant’s visa was cancelled on the basis the applicant breached condition 8202(2)(b) in failing to maintain enrolment at the required AQF level.

10. On 24 August 2018 the applicant’s enrolment in a Master of Professional Accounting was cancelled by the education provider after he failed to commence his studies. On 2 November 2018, the applicant obtained enrolment in Diploma of Business through Wakefield International Business School which has a course at AQF Level 5 (Diploma). As the applicant did not maintain enrolment in a course at the AQF Level 9 (Master’s Degree) or Level 10 (Doctoral Degree), he failed to comply with a condition of his visa. The applicant accepted there were grounds to cancel his visa.

11. On the evidence before the Tribunal, the applicant did not study at AQF level 9 or above. Accordingly, the applicant has not complied with condition 8202(2)(b).

    Consideration of the discretion to cancel the visa

12. 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’.

    ·     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

13. The applicant came to Australia as the holder of a Student visa that was granted on 4 June 2018 and was valid until 30 September 2020. He was enrolled in a Master of Professional Accounting. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was as a member of the family unit of the primary visa holder.

14. The applicant provided evidence that he has re-enrolled in a Master of Business Administration and has been attending the course.  The Tribunal accepts the applicant will benefit from studying in Australia and has given some weight to a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

15. There is no evidence before the Tribunal that the applicant had not complied with other visa conditions and the Tribunal has given some weight in his favour on this consideration.

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

16. The Tribunal considered any hardship that may arise because of the applicant’s visa being cancelled. The applicant is currently enrolled in a Master of Business Administration that began on 10 January 2022 and ends on 8 December 2023. If his visa is cancelled the applicant will have to cease studying the course. Based on the evidence provided, the Tribunal accepts the applicant will suffer some degree of hardship caused by the cancellation of his visa.

    ·     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

17. The applicant’s visa was cancelled because it was granted to allow him to study a Master of Professional Accounting, but his enrolment was cancelled by the education provider after he failed to commence the course. The applicant gave several reasons why he did not start his post graduate studies as required and enrolled in a diploma level course instead.  This included concerns about his ability to succeed after he made enquiries about the content of the master’s course; he was depressed and homesick; he became ill after his arrival, and his father in India was hospitalised. The Tribunal expressed some concerns about some inconsistencies in the applicant’s evidence to the Department, the Tribunal in the first instance (differently constituted) and to the Tribunal after remittal from the courts. The applicant did not refer to all of the same reasons when he appeared before the Tribunal most recently and a report from his psychologist that set out his study difficulties in Australia, also did not refer to some of his alleged problems. The Tribunal wrote to the applicant about the matter and a response was provided, which the Tribunal has taken into consideration. The applicant also attended a second hearing and provided additional submissions in this regard. The Tribunal gave some weight to the applicant’s responses.

18. The Tribunal put to the applicant at the second hearing that he had several enrolments cancelled which appeared to weigh against his claim of being a genuine student. The applicant provided reasons as to why this occurred, which related to his matter being before the courts, his visa status and remittal to the Tribunal. The Tribunal considered the applicant’s evidence and still has some concerns about the circumstances that led to his failure to commence his master’s degree and progress in his studies.  In addition, the Tribunal was not satisfied all matters were beyond his control. However, the Tribunal placed weight on the applicant’s reasons and his responses when questioned about his reasons for not commencing the Master of Professional Accounting. The applicant also provided submissions post-hearing about his enrolment history in Australia that have been taken into account in this decision.

    ·     past and present behaviour of the visa holder towards the department

19. The applicant responded to the Department’s Notice of Intention to Consider Cancellation that was sent to him on 28 August 2019 and provided reasons for his failure to maintain enrolment at the required level.

    ·     whether there would be consequential cancellations under s.140

20. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

21. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention because of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation would impact the applicant’s current course of study.

    ·     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

22. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

23. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

24. The Tribunal placed weight on the applicant’s current enrolment in a course of study.

    Conclusion

25. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are several aspects of the applicant’s case that weigh against him, on balance, the Tribunal considers he should be given the opportunity to demonstrate his academic plans are sincere and he is a genuine student. The Tribunal is satisfied the applicant’s explanations and subsequent behaviour is sufficient reason for the visa not to be cancelled.

26. Therefore, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Wendy Banfield
    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.