Ismail (Migration)

[2019] AATA 3226

Ismail (Migration) [2019] AATA 3226 (11 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Muhammad Ismail

CASE NUMBER:  1726918

DIBP REFERENCE(S):  BCC2017/2937412

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 April 2019 at 3:21 pm (VIC time)

DATE OF WRITTEN RECORD:                16 May 2019

PLACE OF DECISION:  Melbourne

DECISION:  Decision under review set aside

Statement made on 16 May 2019 at 1:49pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 – not enrolled in registered course – divorce from wife – father’s accident and health issues – applicant’s lack of acknowledgement of mental health issues – cultural views on mental health – decision under review set aside

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

Migration Regulations 1994 (Cth), Schedule 8, condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 October 2017 to cancel the Applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

1. At the hearing on 11 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The Applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister on 25 October 2017 cancelling his student visa pursuant to section 116(1)(b) of the Migration Act. His particular visa had been granted on 17 January 2017 with an original expiry date of 15 August 2018. It had been granted on the basis that the Applicant would remain enrolled in and make satisfactory progress in relation to one or more registered courses of study for the duration of that visa period.

1. In this particular case, the proposed courses which the Applicant had intended to undertake and complete related to electronics courses or, more precisely, a Certificate III in Electronics and Communications and a Diploma of Electronics and communications engineering.

1. The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached a condition of the visa which required him to continue to be enrolled in a registered course. The issue in the present case is whether that cancellation is made out and, if so, whether the visa should be cancelled.

1. The Applicant appeared before the Tribunal on 11 April 2019 to give evidence and present arguments.

1. The Applicant’s visa was subject to a number of conditions as prescribed Sch 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’). In the present case, the first issue is whether the Applicant has breached Condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to section 116 of the Act.

1. Condition 8202 of the Applicant’s visa, as set out in Sch 8 of the Regulations requires that the Applicant be enrolled and continue to be enrolled in a registered course for the currency of the visa. In the delegate’s decision record, the delegate identified the period of 8 March 2017 through to 27 September 2017 as being the relevant period during which the Applicant was not enrolled in a registered course. This amounted to a total time of approximately six months when the Applicant was in continuous breach of the visa.

1. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System, otherwise known ‘PRISMS’. This database is maintained for the purposes of administering the Education Services for Overseas Students Act. It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia.

1. In this particular aspect, the PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and training of any issues arising from a student’s general compliance with visa conditions once the visa has been issued.  Of relevance to this case, the PRISMS database may be used by course providers to report that they have cancelled a

particular student’s ‘CoE’ – a student’s Confirmation of Enrolment – in a course for which they had previously been enrolled.

1. That is apparently what happened in this particular instance. The course provider which had originally enrolled the Applicant for courses in electronics notified the Department by the PRISMS database that he had ceased enrolment on a particular date, giving rise to the continuous breach for a period of approximately six months in 2017.

1. In his oral evidence, upon enquiry by the Tribunal the Applicant admitted that his enrolment in a registered course of study had ceased. In that sense the Applicant effectively conceded that the first part of the consideration relating to the cancellation of the visa was indeed satisfied. Accordingly on that basis, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202 of the visa for approximately six months in 2017.

1. Having found that the Applicant has not complied with the condition of the visa, the Tribunal must consider whether the visa should be cancelled. It is a discretionary matter. There are no particular matters specified in the Act or the regulations that must be considered in the exercise of this discretion by the Tribunal. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing and any relevant matters identified in the Department’s procedures advice manual entitled, “General Visa Cancellation Powers.”

1. The first consideration which I turn to is the purpose of the visa holder’s travel and stay in Australia and whether there is any particular compelling need for the Applicant to remain in Australia. The current student visa which has been cancelled by the Department must be considered within the context in which the Applicant originally arrived in Australia. He originally arrived in Australia in about May 2012 on a student visa, a 572 visa – according to the Applicant, that is – which had an operational period of about two years. That visa was granted on the basis that he was enrolled in English for three months, a course which he says he completed, and then a Diploma in Graphic Arts, which he also says that he completed. I note that no evidence has been provided in relation to the completion of these courses. However, I should indicate at this point in my reasoning that ultimately I accepted most of the evidence of the Applicant in terms of his assertions as to what he did and did not do during his stay in Australia.

1. The Diploma of Graphic arts was completed at ITT over a period of about one year. He then decided to study a Diploma in Management, which was preceded by a Certificate IV in Management. He says that he completed the Certificate IV, and then there were some issues with respect to the Diploma of Management at which point he became interested in electronics which he started in 2016. By this point had to apply for another visa. A second student visa permitted him to stay for another two and a half years approximately between the period of 2014 to January 2017. It was at this point where he was supposed to do his Diploma of Management but then chanced to electronics.

1. Throughout those first two visa periods, there has been no allegation made by the Department of non-compliance with the conditions of those two visas. It is the third student visa, which the Applicant applied for on December 2016 that was granted in January 2017. which is now the subject of the breach allegation and the cancellation decision that is before the Tribunal.

1. By way of further background, in relation to the Applicant’s personal circumstances, he went back to Pakistan in 2015 to visit family at which point some issue it seems had arisen between his wife who he had married the year before and that ended in divorce. It appears from the Applicant’s evidence that he had applied for his wife (who he married in 2014) to

become a co-Applicant in relation to his student visa so that she could come to Australia and stay with him while he continued to finish his studies.

1. The Applicant gave evidence that that application for his wife’s visa was ultimately rejected leaving them both in a difficult situation of being apart on other sides of the world while he continued to study. It appears that the divorce arose within that context and so he returned to Australia in October 2015. Then, in 2016, he eventually moved his educational pursuits to an interest in electronics.

1. In terms of the extent of his compliance with previous visa conditions, on the whole there does not appear to be any particular concern. Although there is a lack of a consistent pattern of achievement with respect to his academic performance in all of the courses he has enrolled in, he still has achieved something by way of completion of an English course and graphic arts diploma. He also says he has completed a Certificate IV in Management. He has completed almost all of the units in relation to the electronics courses.

1. The circumstances in which the grant of cancellation arose is a significant consideration.

   The Tribunal inquired of the Applicant the primary reason for which he ceased enrolment for a period of six months. It is without a doubt that a breach of this particular condition, 8202, is taken very seriously. The primary reason upon which a student visa is granted is so that the visa holder can complete studies in Australia on a temporary basis and once those studies are complete, then they depart and return to their home country.

1. In this particular instance, the Applicant chose to cease enrolment for a period of six months and so the Tribunal enquired of him the circumstances which gave rise to that. It was very difficult to extract a compelling case as to why the Applicant ceased enrolment altogether. However, it appears to be the case that a range of factors in their aggregation have impacted on the Applicant over a period of time. They seem to have culminated at the end of 2016 and have had some effect on his sensible decision making processes in 2017.

1. He referred to the fact that he is close to his father who was injured in 2012, although from the medical documentation the Tribunal has on the file, it appears it may have been 2010. His father, it appears, fell from three floors in his capacity as an electrician doing work and he suffered serious injuries which resulted in him being in a coma state for some time. He has also suffered long lasting pain management issues associated with metal rods that had been inserted into his body.

1. As indicated, the Applicant stated that he was very close to his father. He is one of seven children and he indicated that he is perhaps the closest son to his father. He said that he communicates with his father very regularly and at this particular point in time, December 2016, January 2017, the Applicant was very emotionally distressed in relation to his father’s situation and him being in Australia not being able to help him.

1. There is some evidence indicating there may be some subsisting mental health issues associated with the Applicant. When pressed in relation to this particular issue, the Applicant stated that he has no medical evidence, although when he visited a doctor for treatment in relation to a drug-induced psychosis, the Applicant stated that he was referred to a psychiatrist but did not take up an opportunity to see a psychiatrist because of it being related to a perceived mental health issue.

1. The Applicant like many people both in western and Pakistani culture appears to be a person who is reluctant to acknowledge the possibility of any underlying mental health issues and for that reason refrains from seeking any formal treatment. As the Tribunal has noted, there seems to be some evidence suggesting there could be some underlying issues for which the Applicant would probably receive a great deal of benefit if he took up those

opportunities to receive assistance in a formal manner. However, he has chosen not to and that might also explain why in 2017 he was in somewhat of a disarray in decision making process which led him to ceasing enrolment. When asked by the Tribunal as to why he did not contact the Department or make enquires in relation to what is obviously a very important condition attaching to his visa, he candidly and perhaps some might say too honestly said he simply did not know and was too afraid to actually go and ask and enquire as to what he could do. He did not apply for a deferment.  Again, he said that he did not do it and perhaps ultimately that was a stupid thing to do.

1. Ultimately the Tribunal takes the view that the circumstances in which he ceased his enrolment were probably within his control. On the other hand, because of the reluctance and perhaps the misplaced attitude that he should not go and seek help for any underlying mental health issues, the Tribunal is reluctant to penalise him for that particular attitude he holds. That attitude is probably borne out of a cultural stigma associated with people who have mental health issues.

1. There did not appear to be any adverse material before the Tribunal relating to the Applicant’s past and present behaviour towards the Department.  The Tribunal has also taken into account whether or not there are consequential cancellations under section 140 of the Act. There are none that are apparent. The Tribunal has also taken into account in considering whether to cancel his visa whether there will be mandatory legal consequences and the reality is that there will be mandatory legal consequences if his visa is indeed cancelled.

1. If his visa is cancelled, he will become an unlawful non-citizen and may be liable to detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart from Australia, although it is noted that eligibility will exist for application to be made for a bridging visa which may allow his lawful presence so that he can finalise his affairs before departing.

1. The Tribunal also notes that he will be subject to section 48 which means he will have limited options if applying for further visas in Australia. Public interest criterion 4013 will be applied which means he may not be granted a temporary visa for three years from the date of the cancellation.

1. The Tribunal notes that circumstances of this case are not such that would engage Australia’s international obligations. There do not appear to be any other relevant matters for consideration.

1. In all of the circumstances on balance and indeed, it is a very fine balance, the Tribunal has decided that his visa ought not to be cancelled in case number 1726918, the time being 3:22 on 11 April 2019.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s visa and substitutes in its place a decision not to cancel the visa.

Jason Harkess Member