Iqbal (Migration)

[2018] AATA 5178

Iqbal (Migration) [2018] AATA 5178 (17 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD Asif Iqbal

CASE NUMBER:  1618718

HOME AFFAIRS REFERENCE(S):           BCC2016/3188625

MEMBER:Justin Owen

DATE:17 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2018 at 10:13am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa  –not enrolled in a registered course of study – breach of condition 8202– enrolment cancelled due to non-payment of fees – health issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 359AA,
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Bangladesh born 17 September 1990.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 26 September 2015 and was subject to condition 8202.  On 20 October 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course between 10 November 2015 and 27 October 2016.  The applicant responded to the NOICC on 27 October 2016.  On 7 November 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the 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.

4. The applicant appeared before the Tribunal on 25 September 2018 to give evidence and present arguments.

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 registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

9. At the hearing the applicant conceded that he had not been enrolled in a registered course between 10 November 2015 and 27 October 2016.  He also conceded that he had not been enrolled in a registered course since 2017. 

10. Given the applicant had not supplied the Tribunal with a copy of the delegate’s decision record of 7 November 2016 cancelling his visa, the Tribunal put the information contained in the decision record to the applicant under s359AA. The Tribunal provided the applicant with a copy of the delegate’s decision record.

11. The Tribunal provided the applicant with the particulars.  The Tribunal informed the applicant that the Department’s decision record of 7 November 2016 stated he had not complied with a condition of his Student visa.  He was informed the decision record states that he did not comply with condition 8202 (2)(a) which states that he must be enrolled in a registered course. 

12. The applicant was provided with the particulars that between 10 November 2015 and 27 October 2016, according to the PRISMS records, he was not enrolled in a registered course of study between 10 November 2015 and 27 October 2016, meaning you did not meet condition 8202(2)(a)

13. The applicant was informed that the decision record stated he did not dispute that there were grounds for cancellation. 

14. The applicant was informed that the decision record stated that he enrolled in a registered course of study on 27 October 2016 – after receiving the NOICC – but was not in an enrolled course for 11 months. 

15. The applicant was informed the decision record stated that he would be subject to Public Interest Criteria 4013.  He was informed that in the event of his visa cancellation he may not be granted a temporary visa for three years from the date of cancellation. 

16. The applicant was informed the decision record stated that he provided a response to the NOICC on 27 October 2016 where he presented health and family circumstances as a reason not to maintain enrolment.  He was informed that the decision record stated that he claimed a range of health-related reasons over a period of time that impacted upon his ability to study.

17. The applicant was informed that the decision record stated that there was no record that he ever contacted the Department in relation to his Student visa and any issues he was facing.  The applicant was informed that the decision record stated there was no evidence he pursued the available resources for assistance or advice from his education provider. 

18. The applicant was informed that the delegate considered that a combination of health issues and pressures of studying posed a potential deterrent to the applicant maintaining a commitment to study. 

19. The applicant was informed that the delegate considered that his new Confirmation of Enrolment was obtained in response to the NOICC being issued and in an attempt to satisfy the requirements of his student visa.

20. The applicant was informed that the decision record stated that he had completed a Diploma of Business with the International Institute of Technology in September 2016 and he had provided a certificate to support your claim.  The applicant was informed that the information before the Department however was that the training organisation was not a Registered Training Organisation and was not recognised by the Department for the purposes of a Student visa. 

21. The applicant was informed that the delegate considered the applicant had been given an adequate amount of time to rectify his enrolment status. 

22. The applicant was informed that the delegate considered it reasonable that he was aware of condition 8202 that had been imposed on his visa which included that he be enrolled in a registered course. 

23. The applicant was informed that the delegate was of the view that the applicant would have been fully aware that he had ceased enrolment in a registered course and had realised this impacted upon his ability to continue to hold your Student visa. 

24. The Tribunal also put the information contained in the applicant’s Provider Registration and International Student Management System (PRISMS) record dated 24 September 2018 to the applicant. The Tribunal provided the applicant with a copy of his PRISMS record. 

25. The Tribunal put the particulars to the applicant.  The applicant was informed that the PRISMS record dated 24 September 2018 stated he was not currently enrolled in any course.

26. The applicant was informed that the PRISMS record stated that the Bachelor of Accounting he enrolled in in 2016 enrolled had been cancelled.  The applicant was informed the record stated that the Bachelor of Business he was previously enrolled in was cancelled in July 2017 for non-payment of fees. 

27. The Tribunal explained the relevance and consequences of the information and invited the applicant to respond or comment.   The applicant was invited to either respond orally at the hearing or in writing at a later date.  The applicant elected to respond in writing to the Tribunal.  The Tribunal asked the applicant to provide his response to the information that had been put to him by 9 October 2018.  The applicant said he would endeavour to respond in the next few days. 

28. The applicant responded in writing to the Tribunal on 8 October 2018.  The applicant’s correspondence reflected and summarised his general oral evidence to the Tribunal hearing.  It also repeated much of his response to the NOICC in October 2016.  The applicant provided the Tribunal with a detailed history of his education since arriving in Australia and initially enrolling in a TAFE for Business Certificate 4 course in 2009.  He provided the Tribunal with a chronology of his various health issues since arriving in Australia along with supporting medical evidence. He wrote about how his health issues – such as his coronary issues, a badly broken finger and general stress and anxiety - had impacted upon his self-confidence and his ability to study. His correspondence outlines the challenges it is providing in his relationship with his wife.  His correspondence repeated his oral evidence concerning his misapprehension about enrolling in and undertaking a Diploma that failed to meet the specific criteria for his Student visa. The Tribunal has taken his response into account in its consideration of the discretion to cancel the visa.         

29. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between the dates of 10 November 2015 and 27 October 2016.  The applicant confirmed in oral evidence that he has not been enrolled in a registered course since 2017.  Accordingly, the applicant has not complied with condition 8202(2). 

    Consideration of the discretion to cancel the visa

30. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

31. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia.  The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled between 10 November 2015 and 27 October 2016.  The Tribunal considers the breach of condition 8202(2) to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa.

32. The applicant stated that the purpose for his travel and stay in Australia was for study.  He said there were no other purposes.  The applicant stated in oral evidence that his father has a hardware business in Bangladesh and the expectation is that he will take over the family business.  The applicant in oral evidence said his plan was to graduate and then return home to assist with his father’s business.  The Tribunal notes the applicant’s successful completion of previous education courses on a previous Student visa.  Nevertheless based upon the evidence of his significant period of non-enrolment, the Tribunal is of the view that the significant period of time the applicant has spent in Australia has not been for the purpose of study.   The Tribunal finds that between 10 November 2015 and 27 October 2016 the applicant was not fulfilling the purpose of his travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.  The Tribunal accepts that during this period he was undertaking a Diploma of Business.  The Tribunal is not convinced that the applicant was unaware that such studies did not meet the enrolment requirements of his Student visa.  The applicant admits that he has not been enrolled in any course of study for 2018.   The Tribunal notes that the applicant, whilst completing his Diploma of Business in 2016, has failed to successfully complete any of the registered courses of study he has enrolled in from 2015 until the present day. The Tribunal gives his previous record in successfully completing some non-higher education studies some positive weight.   Given however the applicant’s more recent actions in failing to fulfil the purpose of his visa for a significant period of time, the Tribunal weighs this factor slightly in favour of cancelling the visa. 

33. At the hearing the applicant stated that in 2017 he had contacted the Department and informed them he wished to temporarily travel to Bangladesh to receive some medical treatment for issues pertaining to his heart and his blood pressure.  The applicant has put forward the argument that his failure to remain enrolled in more recent times largely relates to his health concerns.   The applicant claims the Department essentially stated he was not permitted to travel to Bangladesh on his Bridging visa and retain the right to return to Australia.  The applicant said it was his desire to travel to Bangladesh, receive his treatment (which he said was much more affordable than undertaking it in Australia) and then return to Australia to study.  The applicant’s decision to remain in Australia, not undertake the medical treatment he says he needs but at the same time fail to remain enrolled in a course of study causes the Tribunal to question his motivation for travelling to and staying in Australia.  Given the applicant’s failure to undertake his studies in recent years, and his oral submissions that the stress of study precludes him from remaining enrolled at the higher education level, the Tribunal has doubts about the applicant’s commitment and ability to successfully undertake higher education study.  On the evidence before it, the Tribunal weighs this factor concerning the purpose of the applicant’s travel to and stay in Australia slightly in favour of cancelling the visa.   

34. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for almost eleven months between 2015 and 2016 to be substantial.  The Tribunal has taken into account the applicant’s oral evidence concerning his enrolment in the Diploma of Business course in 2015 and 2016 and his claimed mistaken belief that that would meet the conditions of his visa.  The applicant in oral evidence blamed his migration representative for the error, saying that he had advised him to enrol in the Diploma course that ultimately failed to meet the criteria for his 573 Student visa.  The Tribunal is prepared to accept that it might be the case that the applicant was mistaken, but notes the obligation remains with the applicant to ensure he is aware of and meets the conditions of his visa.  The Tribunal notes that the applicant had held a number of other Student visas before the cancelled 573 visa that is currently before the Tribunal and is of the view the applicant by 2016 was in all likelihood fairly familiar with the visa process, the imposition of conditions and the potential consequences of non-compliance.   The Tribunal has taken into account his arguments concerning his health and the financial issues that he claims precipitated his failure to continue studying.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

35. The Tribunal has considered the degree of hardship that may be caused to the applicant his student visa be cancelled.  The Tribunal asked the applicant what hardship the cancellation of the visa would cause him.   He said that if he had to go overseas without completing his studies then he would not be able to effectively take over his father’s business.  He said it would be hard for him to find employment as a non-graduate.  The Tribunal accepts that returning offshore would cause the applicant some degree of emotional hardship.  The Tribunal however does not accept the applicant’s very general oral evidence that he would be unable to find employment in Bangladesh and he would be precluded from being a part of his father’s hardware business.  The Tribunal notes the evidence of the applicant that his medical issues have impacted upon his ability to work in Australia.  The applicant claims he is only working for an hour or two a week due to the fact he can’t take stress and because of an injured hand he is only able to work very occasionally.  The Tribunal notes that the applicant would be able to avail himself of the medical treatment in Bangladesh he claims he wishes to utilise to enable his health to improve if he returns to Bangladesh.  The Tribunal notes that cancellation may impact adversely upon the applicant’s desire to study in the future in Australia.  The Tribunal notes that the applicant retains the opportunity to study either in Bangladesh and he can apply elsewhere offshore.    

36. The applicant stated that it would be really hard to go to another country because it would be hard to explain to them what had happened if he departed Australia without a Bachelor degree. 

37. The Tribunal considers the hardship that would be caused on the applicant to be limited.  The Tribunal weighs this factor in favour of cancelling the visa. 

38. The Tribunal furthermore notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.

39. The Tribunal has considered the hardship on the applicant’s family should his visa be cancelled.  The applicant told the Tribunal he has no children.  He said he had been married since 2015 and his wife, a doctor, was in Bangladesh.    He said he had a family member in Australia – his brother who works in accounting and lives in Sydney with his own family. He expressed concern for the financial circumstances for his wife should he return to Bangladesh having not completed his studies and being without a job.  The applicant said that it would be hard on his wife as they would only have the one income.  He expressed a concern that he and his wife might separate if he returned offshore.  In relation to his father who is almost 65 years of age, the applicant said that his father was focused on retirement and wants him to take over the business.  The applicant said that his brother however was well set in Australia with his children at school. 

40. The Tribunal accepts that returning to Bangladesh in such circumstances may be somewhat difficult for the applicant and his family.  The applicant said his father has been paying his education fees, so the Tribunal accepts he would feel some disappointment if the applicant departs Australia without completing any of his higher education studies.  The Tribunal notes that the applicant said just about everyone in his family has higher education qualifications and essentially the same is expected of him. The Tribunal notes that there is nothing to preclude him from studying offshore.  The Tribunal further notes that should he depart Australia, he would be reunited with his wife of five years.  The Tribunal considers the claim that his wife might separate from him should he return to Bangladesh counter-intuitive and in the absence of supporting evidence a groundless allegation.  The Tribunal notes that all his family apart from his brother are in Bangladesh.  The Tribunal does not accept that the applicant will be unable to acquire gainful employment and considers he has the option of undertaking further studies either offshore or abroad in the future. The Tribunal notes the applicant previously completed an Advanced Diploma of Electronics in TAFE and has the option of undertaking further studies if he so desires.  The Tribunal notes he also has the impending responsibility of taking over his father’s business.  The Tribunal considers the hardship that may be caused to the applicant’s family to be negligible.  The Tribunal weighs this factor in favour of cancelling the visa. 

1. The Tribunal has considered the circumstances in which the ground for cancellation arose. The Tribunal has taken into consideration the applicant’s oral evidence and his previous written submission and evidence provided to the delegate along with his most recent written submissions to the Tribunal concerning the circumstances surrounding the cancellation of his visa.

2. The applicant claimed in oral evidence his mistaken belief that his previous Diploma course was a registered course of study that was meeting the requirements and conditions of his 573 Student visa precipitated the circumstances that led to his visa cancellation.  He said he was unaware that his Diploma failed to meet the conditions of his visa.  He said he had followed the recommendation of his agent.  He said he had thought he was meeting the visa’s conditions until he received the NOICC correspondence from the Department. 

3. The applicant said he had been enrolled in a Diploma of Business with the International Institute of Technology which had commenced in 2015 and he completed it successfully in 2016.  The applicant said his agent had advised him to enrol in the Diploma as a precursor to enrolling in a Bachelor degree.  The applicant said as he understood from the advice of his representative, the Diploma met the conditions and requirements of his 573 Student visa.  He had been granted the 573 visa in September 2015 and had commenced his Diploma.  It was completed in September 2016 and in October he had received the NOICC from the Department. 

4. The Tribunal has some sympathy for the applicant.  The Tribunal accepts that he did commence his studies immediately after receiving his visa and is prepared to give some weight to his argument that he found the Bachelor of Business degree too difficult and therefore moved to a Diploma of Business.  The Tribunal notes that he did enrol in a Bachelor of Accounting very soon after successfully completing his Diploma of Business.  The Tribunal notes that the applicant was indeed studying for the period the NOICC he received covers. 

5. The applicant said he received the NOICC letter in October 2016 between completing his Diploma of Business in September 2016 and obtaining his certificate of enrolment from GCA for his Bachelor of Accounting in October 2016.  He said that he had applied for the GCE course prior to receiving the NOICC from the Department.  He said that after receiving the NOICC he subsequently sent his certificate of enrolment for the Bachelor of Accounting course to the Department.  The Tribunal accepts the evidence of the applicant that he had already commenced the processes of obtaining his certificate of enrolment for his Bachelor of Accounting when he received the NOICC from the Department.    The Tribunal furthermore notes the applicant’s oral evidence that his migration agent suggested he undertake the Diploma course and enrolled him in the course. 

6. The Tribunal nevertheless notes that the responsibility for remaining compliant with the requirements of his Student visa remains with the applicant.   The Tribunal is prepared to accept that it might be the case that the applicant was mistaken, but notes the obligation remains with the applicant to ensure he is aware of and meets the conditions of his visa.  The applicant failed to enrol in a registered course as required by the conditions on his visa.  The Tribunal notes that the applicant had held a number of other Student visas before the one that was cancelled and is of the view the applicant by 2016 was fairly familiar with the visa process, the imposition of conditions and the potential consequences of non-compliance.    

7. The applicant said in oral evidence to the Tribunal that he had not enrolled in further study since the cancellation of his Bachelor of Accounting in 2017 due to his medical issues.  The Tribunal has taken into account his written submission to the delegate of 27 October 2016, his 359AA response to the Tribunal on 8 October 2018 as well as a wide range of medical reports he provided on both occasions.  The applicant put forward his health and medical circumstances as reasons he failed to maintain enrolment in a registered course of study.  In his written submissions both in October 2016 and October 2018 he stated that these were reasons he had failed to maintain enrolment.  In his oral evidence however in September 2018 his submissions were focused on his claimed mistaken belief his Diploma of Business at the International Institute of Technology met the criteria for his 573 visa rather than his health.  The applicant blamed his failure to maintain enrolment in 2017 and 2018 – after the cancellation – on his health conditions.   

8. Nevertheless the Tribunal has taken into account his written submissions of October 2016 and October 2018 and the multiple medical reports he submitted as reasons for his failure to maintain enrolment.  The Tribunal notes the medical evidence supplied dates between 2011 and 2015.  The Tribunal accepts the applicant has faced a range of health complaints in relation to a fracture in his finger, hypertension, stress, anxiety and issues in relation to his heart and kidney.  The Tribunal notes that a Student visa holder has an obligation to inform the Department when their circumstances change.  There is no record the applicant contacted the Department to advise them of any of these issues prior to the visa cancellation.  In response to the Tribunal’s questioning the applicant stated that he did contact the Department in around April 2017 in an attempt to gain permission to travel offshore to Bangladesh for medical treatment.  There is no claim made or evidence before the Tribunal of any contact initiated prior to this time.  Whilst recognising the applicant’s claims concerning his health, the Tribunal notes these claims were not presented until after the cancellation.  The Tribunal notes that the applicant in his oral evidence has now focused his claims concerning his health on the period of 2017 and 2018.  The Tribunal weights this factor in favour of cancelling the visa.    

9. The Tribunal notes that in oral evidence the applicant said he had contacted the now Department of Home Affairs in April 2017 and had requested if he could depart Australia on his visa temporarily – for about a month – and receive medical treatment for what he described as a ‘hole in the heart’.  He said he purchased a plane ticket to return to Bangladesh.  He said the Department told him that his visa did not allow him to depart Australia. He said he wished to undertake treatment and then return to Australia and recommence his studies.  His plan he said was to go offshore for treatment and then return to Australia and recommence his studies in the possible semester.  The Tribunal requested any evidence of his communication with the Department.  The applicant said he submitted an application form to the Department but had no copy of any documentation.  He said he received a telephone call from the Department that said he could not depart Australia. 

10. The applicant in some detail informed the Tribunal about his medical issues that he claims have precluded him from study.  He said he wants to resolve his health issues before returning to study.  He said local doctors had said to him he needs to obtain prescribed medicine but he can’t obtain from them as he needs to see specialists. He said to the Tribunal he needs to get MRIs but he can’t afford as an international student.  He said it was far more affordable to return to Bangladesh and receive treatment.  He said that because he is under thirty years of age the doctors are unable to give him medicine and he has to visit GPs when he has significant hypertension.  He said this happens quite frequently and he gets nose bleeds and a feeling of biliousness when this occurs. 

11. The applicant said his health issues made it extremely difficult for him to study and to remain enrolled.  He said he was suffering from bad hypertension and his health problems had been diagnosed around 2015.  He said he had some kidney problems.  He said that if he suffered from too much stress he would bleed from his nose and feel faint.  The Tribunal noted that the applicant had claimed in 2016 in his response to the NOICC on 27 October 2016 he had claimed he intended to continue his education and had provided the certificate of enrolment in his Bachelor of Accounting course as evidence of this intention. The Tribunal asked why the applicant had made this claim he would do this study when on the evidence before it he had not done so.  The Tribunal notes the applicant’s oral evidence that he was aware of his medical conditions in 2015.  The applicant said that his medical condition had worsened over that time which precluded his study.  The Tribunal notes that the applicant has claimed his medical conditions preclude him from studying today.  The applicant was diagnosed with these conditions three years ago but has not returned to Bangladesh to receive treatment as he desires and has not sought more long-lasting treatment in Australia due to the claimed costs.  The Tribunal notes that the applicant has held a Student visa.  It exists for the purposes of education and for the 573 specifically higher education. The applicant has utilised these medical conditions as the principal reason as to why he did not continue in study as he promised in his NOICC response in October 2016.  The Tribunal weights this factor in favour of cancelling the visa.  

12. The applicant furthermore submitted to the Tribunal that the fees of his Bachelor of Accounting and the provider’s refusal to allow payment via instalment had exacerbated the situation and ultimately created a situation where he was now no longer enrolled in any registered course of study.   The applicant said that he had enrolled in a Bachelor of Accounting at GCA in October 2016. The applicant said that his enrolment had been cancelled in this course.  He said that he had requested the education provider if he could pay his fees by instalment.  The provider refused this and after successfully completing one semester his course was cancelled.  The applicant told the Tribunal he couldn’t afford the fees without some flexibility like payment by instalments. The applicant said he had also previously been in a Bachelor of Business at Holmes College that was cancelled for non-payment of fees.   The Tribunal notes that visa holders have compliance obligations concerning their financial situation and ability to finance their studies.   The Tribunal weights this factor in favour of cancelling the visa.     

13. The applicant said ultimately the circumstances on which the grounds for the cancellation arose in 2016 were his mistaken belief that the Diploma course he was studying met the conditions and criteria for the 573 Student visa.  He said that his health and medical conditions plus the inability to pay the fees for his Bachelor of Accounting by instalment had led to the situation where his registered course of study was cancelled in 2017 and he was no longer enrolled in any course. 

14. The applicant said he was last enrolled in a course in 2017 in the Bachelor of Accounting course that was cancelled for non-payment of fees.  He said he had initially been enrolled in a Bachelor of Business at the Holmes Institute in 2015 after being granted the visa. He said that he only studied for a few weeks.   He said he found the course difficult not being from a Business background and departed the course in October 2015.  He also found it prohibitively expensive at $11,000 a year.  He said he then changed to the Diploma of Business.  He said upon completion be moved to a Bachelor of Accounting.  He said he successfully completed the course and received the NOICC whilst waiting for the certificate of enrolment for his Bachelor of Accounting.

15. The Tribunal asked the applicant if he was aware that a condition of his 573 Student visa was that he remain enrolled in a registered course.  He replied to the Tribunal that he knew he had to be enrolled but he was confused about the requirements.  He said he had completed his Diploma a month prior to receiving the NOICC correspondence and was enrolling at that time in the Bachelor of Accounting course.  The Tribunal asked the applicant if he was aware by 2017 that he needed to remain enrolled in a registered course after his Bachelor enrolment was cancelled for non-payment of fees.  The applicant agreed that by then he was aware of this requirement in a 573 Student visa.  The Tribunal asked the applicant if he received a letter from the Department in September 2015 informing him of the grant of the visa.  The applicant said he did.  The Tribunal asked the applicant if the letter outlined the conditions of the visa and the consequences of non-compliance.  The applicant said he didn’t read the whole letter.  He said he was aware his enrolment was about to cease when his education provider informed him they would cancel his enrolment for non-payment of fees. He said he didn’t receive a letter confirming to him the end of his enrolment.  The applicant said he didn’t know that not being enrolled in a registered course would impact upon his eligibility to continue to hold his Student visa.  On the evidence before it the Tribunal is not convinced the applicant was unaware of his obligations and specifically his ongoing enrolment requirements as the holder of a Student visa.  The applicant received the correspondence from the Department which contains information about the visa holder’s obligations. The Tribunal weighs this factor in favour of cancelling the visa. 

16. The applicant placed responsibility on the poor advice of his agent for his predicament that led to the issuance of the NOICC and the subsequent cancellation of his visa in 2016.  He said that he relied on the advice of his agent who suggested and recommended he enrol and study the Diploma of Business.  He said he assumed, given the advice of the agent, that it would meet the eligibility criteria and requirements for his 573 Student visa.  The Tribunal asked the applicant for the name of the agent.  The applicant was unable to provide the Tribunal with a name or contact details.  The Tribunal finds it unusual that the applicant is unable to name or provide any details of the agent who apparently supplied him with such erroneous information, especially after he claims he paid $1,500 for the advice.   

17. The Tribunal asked the applicant to explain how his health issues had precluded him from studying as required by his visa.  The applicant replied that he had been informed by the doctor that he can’t take any stress.  He discussed assignments and examinations and said that when they were frequent he suffered from bad stress and was exhausted and drained by the process.  The applicant said the issue related to his heart and a hole in one of the valves.  He claimed the doctor had said don’t do gym, play sport that might raise his heart rate and essentially avoid all stress.  He said that the doctor had said that he needs surgery but the doctor had wanted to give him medication.  He said that the doctors had told him he couldn’t do the surgery until he was fifty years of age due to the risk of catastrophic failure in surgery.  The applicant said his plan was not to do the surgery but to go and do the MRI and undertake the other treatment.  The applicant said he is seeing a GP in Australia to get medication to get his blood pressure down.  He claimed to visit the GP every two to three weeks.  The Tribunal has reviewed the medical evidence the applicant provided both the delegate in 2016 and the Tribunal post-hearing as part of his submissions of 8 October 2018.  The Tribunal accepts that the applicant has some medical conditions that need treatment including stress and anxiety.  The Tribunal is not convinced on the evidence before it that the applicant’s medical issues prevented him from remaining compliant with the conditions of his visa.  The Tribunal weights this factor in favour of cancelling the visa.   

18. The Tribunal took particular note of the applicant’s claims in oral evidence and in his written submissions and evidence submitted on 8 October 2018 that his stress and anxiety made it very difficult to study.  He claims the partial reason for his decision not to maintain enrolment is his stress levels.  In his written submission of 8 October 2018 he writes that ‘I can’t take nervousness of examination and consequence is I kept failing in my bachelor degree’ (T1, Folio.116)  The Tribunal questions whether the stress and anxiety he has claimed – both in his written submissions and in oral evidence - will preclude him from meeting the requirements of a higher education visa in the future.  The Tribunal notes that the applicant in his written submission stated that the education provider GCE provided him with the flexibility to enrol in a Bachelor course and cater his study schedule to his specific individual needs.  The Tribunal notes however that the applicant after one semester failed to maintain his enrolment at GCE on the basis he was unable to pay his student fees resulting in the cancellation of his enrolment.    The Tribunal has grave concerns, based upon his evidence, on the applicant’s ability to maintain the commitment – both from a health perspective and financially - needed to complete higher education studies on a 573 visa.  The Tribunal weighs this factor in favour of cancelling the visa.    

19. The applicant asked the Tribunal for the opportunity to travel overseas, receive medical treatment and then return to Australia on a Student visa to recommence his studies.  The Tribunal considers the grounds for cancellation arose due to a range of issues: non-enrolment in a compliant course of study and non-payment of fees whilst health and medical claims that have been made to explain why the applicant was unsuccessful in his retrospective attempts to become compliant with the requirements of this visa.  The Tribunal has considered the circumstances in which the grounds for cancellation arose and the applicant’s explanation of these circumstances and his attempts to mitigate them.  The Tribunal weights this factor in favour of cancelling the visa.    

20. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The Tribunal pointed out to the applicant that he had obligations to inform the Department when his circumstances, such as his enrolment, changed.  The applicant said he communicated with the Department in April 2017 when making a request to depart Australia temporarily for medical treatment.  There is no evidence before the Tribunal of this communication but for the purposes of this review the Tribunal accepts that the applicant did in fact communicate with the Department and make his request.  There is no other evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. The Tribunal notes the applicant appears to have successfully met the requirements of previous Student visas. On the evidence before it the Tribunal weighs this factor slightly in favour of not cancelling the visa. 

21. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The Tribunal notes from the decision record that there is no information before the Department which indicated that any other person currently holds a visa because the applicant held his student visa. The applicant stated that he is married but his wife resides in Bangladesh. He says he has no children. There is no evidence or claim made of dependents. On the evidence there is none else holding a visa because of his 573 visa. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

1. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

2. On the evidence before it the Tribunal considers the applicant’s breach of condition 8202 of their student visa to be substantial.  The Tribunal considers the initial 11-month period outlined in the decision record that the applicant failed to be enrolled in a registered course of study to be significant. The Tribunal has noted the applicant’s oral evidence, his 359AA response and written submissions of 8 October 2018 and his previous written submission to the delegate concerning his failure to meet the conditions of his visa and his explanation concerning the circumstances of the breach.  The applicant today remains not enrolled in a registered course and on his evidence will make no effort to recommence his higher education studies until he travels offshore to undergo medical treatment.  The Tribunal does not consider these factors in any significant way constitute a reason for the Tribunal to exercise its discretion and not cancel the visa.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

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

   Justin Owen
   Senior 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.