Jaffrey (Migration)

[2019] AATA 3487

Jaffrey (Migration) [2019] AATA 3487 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Mustafa Jaffrey

CASE NUMBER:  1803991

HOME AFFAIRS REFERENCE(S):          BCC2017/4238413

MEMBER:Donna Petrovich

DATE:1 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review substitutes a decision not to cancel the applicant’s 573 (Temporary)(Class TU)(Student) visa

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling circumstances – affected by family situation – mental health issues – age – lack of life experience – decision under review set aside

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 7 February 2018 made by a delegate of the Minister for Home Affairs 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 delegate cancelled the visa on the basis that the applicant was not enrolled and had not complied with visa condition 8202. 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 22 May 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 affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

5.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?

6.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).

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

8.The applicant a 24 year old male from India arrived in Australia on 21 May 2016, with the intention of Studying a Master’s Degree in IT. The applicant’s family, his Mother, Father, Sister and Grandmother live primarily in their home country of India.  The applicant told the Tribunal that his parents live and work in Dubai returning home periodically. The applicant told the Tribunal he was close to his family, in particular his Grandmother who had played a significant role in the upbringing of himself and his sister.

9.The applicant’s movement records show that the applicant was initially granted a Student (Temporary) (class TU)Higher Education Sector (subclass 573)Visa 10 May 2016 and arrived in Australia on 21 May 2016. 

10.The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course for 8 months.

11.Relevantly, the Provider Registration and International Student Management System (PRISMS)  determined that the applicant was not enrolled for a period of 8 months from 30 May 2017 until a Notice of Intention to Cancel enrolment was initiated on the 15 Jan 2018:

12.The applicant’s enrolment was cancelled on 15 Jan 2018 and his visa was cancelled on 7 Feb 2018.  

13.Condition 8202(2) states that the visa holder meets the visa requirement if the visa holder is enrolled in a registered course.  Based on the evidence available to the Tribunal, including PRISMS and the applicant’s submission to the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 30 May 2017 in breach of his visa conditions

14.On 15 Jan 2018 the applicant was sent a notice of intention to consider cancellation of Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa under s.116 of the Migration Act 1958 (‘The NOICC’). In his response to the NOICC the applicant agreed that there were grounds for cancellation but requested that his visa not be cancelled because of the effect on his career and future; and submitted the following;

·     His non completion of his study will impact on his future earning capacity and his career.

·     He would not be able to resume study at some later stage as he would be viewed as too old.

·     That as the only son in the family he would be expected to take on the role of head of the family as his father was getting older, and he would be expected to assume the responsibility of earning money for the family.

15.The applicant provided the Tribunal with the following documentation prior to the hearing on 22 May 2019.

·     A Letter from the applicant’s father outlining the personal circumstances leading to his sons Cancellation of Enrolment and Cancellation of visa signed and dated 13 May 2019.

·     Medical records in relation to the applicant’s Grandmother Discharge Summary from Kamneni Hospital dated 18 May 2017.

·     Medical records in relation to the applicant’s Sister and Antenatal Card from Kirloskar Hospital which is not dated.

·     Copy of a Police report in relation to domestic abuse sustained by the applicant’s sister dated 7 September 2017.

·     The Applicants hearing response signed and dated 9 May 2019.

16.The applicant made submissions to the Tribunal that his non-enrolment occurred when his father failed to pay his course fees to because he was pre-occupied with a family matter relating to his sister and domestic violence directed at her in her marriage. The applicant submitted that as a result of the family circumstances he suffered from depression and isolated himself from his studies and other activities. The applicant had returned to India in August to provide moral support to his Sister and Grandmother who had suffered a heart attack due to stress. The applicant departed India in September for Australia.  He submits that on returning to Australia he suffered depression and isolated himself from study and other activity.

17.The applicant has completed only 3 subjects of his Master’s degree in IT. The applicant would need to complete 8 subjects before completion and would need to attend University for a remaining 3 semesters before this course was complete. The Tribunal would be inclined to place greater weight on his study record if more subjects had been undertaken and completed. As there has been limited progress the Tribunal places some weight on this factor due to the applicant’s age and circumstances.   

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

Consideration of the discretion to cancel the visa

19.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.

Applicants purpose of travelling and staying in Australia

20.During the course of the hearing the applicant confirmed that he had travelled to Australia with the Intent of Studying a Master’s Degree in IT at Charles Sturt University.

21.The Tribunal is satisfied of the applicants intention at the time of the visa application does constitute a reason not to cancel his visa.  The applicant did not maintain his enrolment in a registered course in accordance with his visa conditions.  The applicant conceded to the Tribunal that he had breached condition 8202(2)(a) by failing to be enrolled in a course from 30 May 2017.  The applicant failed to maintain his enrolment in a registered course until the cancellation of his visa on 7 February 2018 a period of approximately 8 months, while remaining in Australia on a visa granted for the purpose of study in this case due to circumstances beyond his control.

22.The Tribunal accordingly, places some weight on the applicant’s submission that the purpose of his travelling and staying in Australia was to study.

Compliance with visa conditions

23.The applicant was not enrolled in a registered course from 30 May 2017. The applicants visa was cancelled on 7 February 2018’ as such he remained in Australia without having complied with the conditions of his visa for a period of approximately 8 months.  The Tribunal considers this period of non-compliance to be significant.

24.The applicant travelled to his home country India on one occasion to visit his family during a family crisis for a period of one month from August 2017 – September 2017. The situation was difficult and could be viewed as compelling circumstances on the basis his Sister was in an abusive relationship at the time and a series of events which impacted on the applicant and his family because of this circumstance.

The degree of hardship that may be caused to the Applicant

25.The applicant gave evidence that he wanted to complete a Master’s Degree in IT, so that he could return to India and obtain a good position as a Manager.  Without this qualification and life experience the applicant felt that he would only gain work in a call centre and earn minimum wage.

26.The applicant emphasised that his life would be over and expressed great concern about the degree of hardship that may be caused to his career and opportunities if the delegate’s decision is upheld.  In his view this will impact on him financially and emotionally. The tribunal places some weight in the applicant’s favour.

27.The Tribunal accepts that by not completing his course the applicant may be restricting himself from obtaining a better position, including a management position. The Tribunal would hope that the applicant would continue his study at some stage. The Tribunal places some weight in the applicant’s favour.

28.In this case, the Tribunal acknowledges that if the applicant’s visa is cancelled he will suffer some hardship by having to return to India without attaining a Master’s Degree in IT, and as such places some weight on the hardship the applicant may suffer in the event that his visa is cancelled.

The circumstances in which the grounds for cancellation arose

29.The applicant’s sister has married and moved to Dubai with her husband, who has abused his wife physically, emotionally and financially. On falling pregnant the husband has beaten his wife so badly that she has miscarried at 22 weeks.  The applicant had flown home in August to support his family in particular his sister and Grandmother who was suffering stress and developed a heart condition as a result of these circumstances.  The applicant and his family moved his sister home to India where she could be taken care of. The Tribunal has taken this into consideration and has placed some weight in the applicant’s favour.

30.Whilst there has been horrific domestic violence in his sisters relationship and this certainly has had an impact on the whole family. The relationship which broke down was the relationship of the applicant’s sister and her husband.  This is not to undermine the stress that this has placed on the family unit. The Tribunal places some weight in favour of the applicant because of his age and the difficulties he has experienced under these circumstances.

31.The impact of this on the applicant in this case is that he has failed to prioritise his own circumstances and was not focussed on his study and maintaining his Visa.  He has ignored his own situation, and has admitted during the hearing that he was aware of the consequences of not being enrolled, but in this case was unable to act as a result of his mental health issues. The Tribunal in this case places some weight in favour of the applicant’s circumstances based on the applicant’s age and lack of life experience.     

32.It would seem that the payment of the applicant’s fees have not been attended to by the applicant’s father during this difficult time.  The Tribunal is also of the view that the applicant did not assume responsibility for this priority which was attending University and maintaining his enrolment. This was the basis of the cancellation of enrolment. The Tribunal places significant weight in favour of not cancelling his visa in this case as the applicant’s visa has not been given priority due to the distress the family was suffering as a result of his sister marital circumstance, her recovery and relocation, the miscarriage of her baby, and the grandmother’s stress related heart attack

33.Finally, it was the applicant’s evidence that he suffered from depression and anxiety as a result of the circumstances in relation to his Sister, his Grandmother’s health, and from being away from home. The applicant provided a report to the Tribunal from Robert Postlethwaite Clinical Psychologist, who wrote a generalised report in relation to the applicant’s anxiety and depression. The report was written after one consultation with the applicant and without reference to ongoing treatment.

34.The report refers to the applicant’s condition being consistent with numerous international students. Robert Postlethwaite, Clinical Psychologist said in his report “His experience is consistent with numerous international students I have seen over recent years. They arrive with huge expectation on them from family in their home countries, have minimal if any experience of living independently and don’t have the life skills to look after themselves, become socially isolated, anxious and depressed, stop attending classes and eventually experience problems with their Universities, Immigration or both”. The Tribunal has read and given consideration to the content of the report. The tribunal accepts the report and places some weight in favour of the applicant.     

Past and present behaviour of the applicant

35.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140

36.In this case there is no persons in Australia who would have a visa cancelled under s.140.

Any breach of International obligations Australia may have as a result of the applicant’s visa being cancelled.

37.The circumstances in this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

Other relevant factors

38.Having considered the evidence presented by the applicant at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

39.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s 573 (Temporary) (class TU) (Student) visa.

ATTACHMENT

Migration Regulations 1994

a.…

b.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).

c.(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.

d.(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

e.(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.